J.P. Rai, Ias Vs. the State of Arunachal Pradesh and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/894567
SubjectConstitution
CourtGuwahati High Court
Decided OnMay-28-2009
JudgeJ. Chelameshwar, C.J.,; Ranjan Gogoi and; B.P. Katakey, JJ.
Reported inAIR2009Gau151
AppellantJ.P. Rai, Ias
RespondentThe State of Arunachal Pradesh and ors.
DispositionPetition dismissed
Cases ReferredSanjay Kumar Srivastava v. Acting Chief Justice and
Excerpt:
- j. chelameshwar, c.j.1. when this matter was taken up on 29-4-2009 mr. s. deb, learned counsel appearing for the applicant (respondent in pil no. 50/04) raised a preliminary objection regarding the legality of the proceedings before this full bench. according to the learned counsel petitions filed invoking the jurisdiction of this court under article 226 are required to be heard either by a single judge or a division bench consisting of two judges and the rules framed by this court in exercise of the power under article 225 do not contemplate hearing of a petition filed under article 226 of the constitution by a bench consisting of more than two judges unless a division bench hearing the writ petition makes a specific reference of any question of law which in the opinion of the bench hearing the matter is required to be considered and decided by a full bench or a larger bench. the learned counsel further submitted that in the instant case there is no such order of reference by the division bench which was hearing the matter earlier calling for constitution of a full bench for taking up this matter and, therefore, the learned counsel submitted that the continuance of the hearing by this full bench of three judges of the instant case is without jurisdiction and must, therefore, be forthwith remitted back to the division bench which was hearing the matter prior to taking up of this matter by this bench.2. the learned counsel for the petitioner in this behalf made reference to certain rules framed by this court in exercise of the power under article 225 of the constitution and also relied upon various judgments of the supreme court reported in : (2008) 3 scc 243 : air 2008 sc (supp) 1629 ta hameed v. m. viswanathan : (2006) 6 scc 258 : 2006 air scw 4008 kerala state science & technology museum v. rambal co. : 1981 supp scc 38 : air 1982 sc 1177 kesho nath khurana v. union of india and : 2004 (1) mh lj 619 shikshan prasarak mandal v. laxmikant balakrishna joshi.3. the learned counsel for the petitioner referred to rule 1 and 2, chapter va of the gauhati high court rules framed by this court in exercise of the powers under article 225 of the constitution read with article 6 of the assam, high court order, 1948, the relevant portion of the above rules are as follows:1. an application for a direction or order or writ under article 226 of the constitution of india, other than writ of habeas corpus, shall be drawn up in the form contained in the schedule to this chapter and shall be accompanied by an affidavit verifying the facts relied upon.2(1) every such applications shall be made and heard before the single judge except where the chief justice otherwise directs:provided that such application falling within any one or more of the following categories shall be heard by a division bench except where the chief justice otherwise directs,(a) public interest litigation;(b) habeas corpus application;(c) application relating to externment or deportation;(d) any application which a single judge may refer to the chief justice for placing it before the division bench having regard to the importance of complexity of the case;(e) writ petitions in which constitutional validity of any act, rules or any provisions thereof have been challenged.(2) an appeal from the judgment and order of a single judge disposing of an application shall lie to the division bench if preferred within thirty days of the date of such judgment and order. the division bench may condone the delay in filing any appeal, if good and sufficient cause is shown.4. however, the learned counsel submitted that though the expression 'a division bench' is not defined in chapter va, in view of the long established practice 'a division bench' is always understood within the jurisdiction of this high court as bench consisting of two judges of this court and the rules framed under article 225 do not contemplate the hearing of any writ petition by a bench consisting of more than two judges. the only situation according, to the learned counsel in which a bench consisting of more than two judges can hear a petition under article 226 is when thesis, an order of reference by a division bench, requiring the matter to be placed before a bench of greater strength than of a division bench. as in this case there is no such order of reference and the matter is taken up by this full bench in view of an administrative 'order passed by the chief justice withdrawing this case from the division bench which was hearing the matter earlier, such an administrative order of the chief justice is beyond his jurisdiction and contrary to the tenor of the rules and the long established practice of this high court.5. confronted with the question as to the discretion of the chief justice contemplated under rule 2(1) proviso, which enables the chief justice to direct the various categories of writ petitions enumerated under the said proviso to be heard by a bench other than a division bench, the learned counsel for the petitioner argued that such a power no doubt inheres in the chief justice on the threshold before a case is assigned to any division bench but once such assignment is made and the division bench is in seisin of the matter the chief justice would be without the legal authority to withdraw such a part heard matter and assign it to another division bench or a larger bench.6. at the outset we must make it clear that the pil no. 50/2004 was initially assigned to a division bench consisting of two of us (hon'ble mr. justice ranjan gogoi and hon'ble mr. justice b.p. katakey) subsequently by an administrative order of the chief justice the matter was directed to be listed before this full bench.7. we are of the opinion that the submission of the learned counsel for the petitioner is wholly ill-conceived and contrary to the established position of law regarding the powers and authority of the chief justice in the matter of determining the roster and assignment of the cases to the various judges of the high court. we must make it clear that the authority of the chief justice in determining the roster and assigning the cases to the various judges of the high court does not flow from the rules framed under article 225 of the constitution. such authority flows from the constitution itself.8. a full bench of the calcutta high court in : air 1990 calcutta 168 sohan lal baid v. state of west bengal had an occasion to examine the legal position in this regard. speaking for the full bench justice pd desai, chief justice traced out the entire legal history arid the source of power of the chief justice in dealing with the question.11. the high court act or the charter act, 1861 (24 and 25 viet, c 104), hereinafter called the charter act, which received the royal assent on august 6, 1861, the parent legislation which authorised the establishment of high courts of judicature in india, section 1 of the said act providing, inter alia, that it shall be lawful for her majesty, by letters patent, to erect and establish a high court of judicature at fort william in bengal for the bengal division of the presidency of fort william and, by like letters patent, to erect and establish like high court at madras and bombay for those presidencies respectively, and that the high courts to be established under such letters patent shall be deemed to be established from and after the publication of such letters patent in the same presidency, or such other time as in such letters patent may be appointed in this behalf. section 13 of the charter act provided that subject to any laws or regulations which may be made by the governor-general in council, the high courts established in any presidency under the said act may, by their own rules, provide for the exercise, by one or more judges or by division courts constituted by two or more judges of the said high court, of the original and appellate jurisdiction vested in such court, in such manner as may appear to such court to be convenient for the due administration of justice. section 14 provided that the chief justice of each high court shall, from time to time, determine what judge in each case shall sit alone, and what judges of the court, whether with or without the chief justice, shall constitute foe several division courts.12. the letters patent dated may 14, 1862 for the high court of judicature to be established in bengal in accordance with the provisions of the chapter act was transmitted to the governor-general of india in council by the dispatch dated may 14, 1862 from sir charles wood, secretary of state. the said letters patent were afterwards revoked by further letters patent dated december 28. 1865. clause 36 of the letters patent dated december 28, 1865 in its original form provided, inter alia that any function which was thereby to be performed by the high court of judicature at fort william in bengal, in the exercise of its original or appellate jurisdiction, may be performed by any judge, or by any division court thereof, appointed or constituted for such purpose 'under the provisions of the thirteenth section of the aforesaid act of the twenty-fourth and twenty-fifth years of our region.' reference in the extracted portion aforesaid is to section 13 of the charter act. the said extracted portion was substituted by the words 'in pursuance of section one hundred and eight of the government of india act, 1915' by the amendment letters patent of march 11, 1919.13. paragraph 35 of the dispatch from the secretary of state accompanying the former letters patent mentioned, inter alia, that clause 36 referred to the powers of single judges and division courts appointed or constituted under the provisions of section 13 of the charter act and that by section 14 of the said act, the power of determining from time to time what judge in each case shall sit alone, and what judges shall constitute division courts, was placed in the hands of the chief justice.14. the charter act was repealed and re-enacted with slight modifications by the government of india act, 1915. section 106 of the said act provided, inter alia, that several high courts are courts of record and have all such powers and authority over or in relation to the administration of justice, including power to make rules for regulating the practice of the court, as are vested in them by letters patent, and, subject to the provisions of any such letters patent all such jurisdiction, powers and authority as are vested in those courts respectively at the commencement of the said act. section 108 of the said act read as follows:108. (1) each high court may by its own rules provide as it thinks fit for the exercise, by one or more judges or by division courts constituted by two or more judge of the high court of the original and appellate jurisdiction vested in this court.(2) the chief justice of each high court shall determine what judge in each case is to sit alone, and what judges of the court, whether with or without the chief justice, are to constitute the several division courts.15. the government of india act, 1915, was repealed and re-enacted with modifications by the government of india, act, 1935. section 223 of the said act read as follows:223. subject to the provisions of this part of the act, to the provisions of any order in council made under this or any other act, to the provisions of any order made under the indian independence act, 1947, and to the provisions of any act of the appropriate legislature enacted by virtue of powers conferred on that legislature by this act, the jurisdiction of, and the law administered in, any existing high court, and the respective powers of the judges thereof in relation to the administration of justice in the court, including any power to make rules of court and to regulate the sittings of the court and of members thereof sitting alone or in division court, shall be the same as immediately before the establishment of the dominion. 16. the government of india act, 1935, was repealed by the constitution of india, article 225 of the constitution of india, in so far as it is relevant for the present purposes, reads as follows:225. jurisdiction of existing high courts.--subject to the provisions of the constitution and to the provisions of any law of the appropriate legislature made by virtue of powers conferred on that legislature by this constitution, the jurisdiction of, and the law administered in, any existing high court, and the respective powers of the judges thereof in relation to the administration of justice in the court, including any power to make rules of court and to regulate the sittings of the court and of members thereof sitting alone or in division courts, shall be the same as immediately before the commencement of this constitution.17. in national sewing thread co. ltd. v. james chadwick & bros. : air 1953 sc 357, it was ruled that power that was conferred by section 108 of the government of india act, 1915 could be exercised from time to time with reference to jurisdiction whether existing at the time of the coming into force of the said act or whether conferred by subsequent legislation, and that the said power still subsists and that it has not been affected in any manner whatever either by the government of india act, 1935 or by the constitution. on the other hand, it has been kept alive and reaffirmed with great vigour by those statutes. it was further observed that the power is there and continues to be there and can be exercised in the same manner as it could be exercised when it was originally conferred subject, of course, to the alternation by an appropriate1 legislation.18. it is thus clear that the chief justice of the high court has the constitutional power to determine what judge in each case is to sit alone, and what judges of the court whether with or without the chief justice-are to constitute the several division courts. in other words, the function of assignment of judicial business amongst the judges of the high court, whether sitting or in division courts, is entrusted by law to the chief justice and the judge or judges derive jurisdiction to deal with and decide the case or class of cases assigned to them by virtue of the determination made by the chief justice. this power is derived not only from the provisions of section 108 sub-section (2) of the government of india act. 1915. which still subsists and the power where under still continues to be there, as held in national sewing thread co. ltd. s case, but also inheres in the chief justice.19. the following observations in state of maharashtra v. narayan : air 1982 sc 1198 at page 1200 succinctly bring out the existence of such inherent powers in the chief justice.the chief justice is the master of the restor. he has full power, authority and jurisdiction in the matter of allocation of business of the high court which flows not only from the provisions contained in sub-section (3) of section 51 of the act, but inheres in him in the very nature of things.in coming to the said conclusion the calcutta high court also relied upon certain observations made by the supreme court in : air 1962 sc 876 pramathnath talukdar v. saroj ranjan sarkar. the supreme court at page 883 held:.i further think that the chief justice must have the inherent power to constitute a larger bench in special circumstances.... the chief justice, i think, must possess such an inherent power in the matter of constitution of benches and in the exercise thereof he can surely constitute a larger bench in the case of importance....9. in the year' 1948 a separate high court known as the high court of assam came to be established by an order of the governor general. such ah order was passed by the governor general in exercise of the powers under section 299(1) of the government of india act, 1935, as, adopted by the india provincial constitution (amendment) order, 1948. para 4 of the said order declares as follows:4. the high court of assam shall have, in respect of the territories for the time being included in the province of assam, all such original appellate and other jurisdiction as, under the law in force immediately before the prescribed day, is exercisable in respect of the said territories or any part thereof by the high court in calcutta, or by the governor of assam exercising the functions of a high court.para 6 of the said order declares as follows:6. subject to the provisions of this order, the law in force immediately before the prescribed day with respect to the practice and procedure in the high court in calcutta shall, with the necessary modifications, apply in relation to high court of assam, and accordingly that high court shall have all such powers to make rules and orders with respect to practice and procedure as are immediately before the prescribed day exercisable by the high court of calcuttaprovided that any rules or orders which are in force immediately before the prescribed day with respect to practice and procedure in the high court in calcutta shall, until varied or revoked by rules or orders made by the high court of assam, apply with the necessary modifications in relation to practice and procedure in the high court of assam as if made by that court.from the above paragraphs of the assam high court order extracted above it appears that the powers of the newly created assam high court and the law with respect to the practice and procedure to be followed by the high court shall be the same as. the law applicable to the calcutta high court. the assam high court over a period of time came to be renamed as the gauhati high court for various historical reasons, the details of which may not be necessary for the present purpose. therefore, the powers of the chief justice of the gauhati high court, in our view are the same as the powers of the chief justice of the calcutta high court, as pointed out by the full bench of the calcutta high court in : air 1990 calcutta 168.10. in : (1998) 1 scc 1 : air 1998 sc 1344 state of rajasthah v. prakash chand, the supreme court once again had to consider the power and authority of the chief justice in the matter of allotment of work. after elaborately considering the issue at para 59 the supreme court held as follows:59. from the preceding discussion the following broad conclusions emerge....(1)...(2) that the chief justice is the master of the roster. he alone has the prerogative to constitute benches of the court and allocate cases to the benches so constituted.(3), (4)...(5) that the chief justice can take cognizance of an application laid before him under rule 55 (supra) and refer a case to the larger bench for its disposal and he can exercise this jurisdiction even in relation to a part-heard case.the supreme court quoted with approval a decision of the allahabad high court in 1996 awc 644 sanjay kumar srivastava v. acting chief justice and at para 21 of the judgment the supreme court noted that the objection raised before the allahabad high court was that a writ petition which was heard in part by a division bench could not have been withdrawn by the chief justice and place before a full bench for hearing. the allahabad high court rejected the said submission.it is, therefore, clear that the submission of the learned counsel for the applicant that the power of the chief justice to assign a case to a division bench or a full bench could be exercised only on the threshold and a part heard matter cannot be withdrawn by the chief justice, cannot be accepted.11. on the other hand the decision relied upon by the learned counsel for the applicant in (2008) 3 scc 234 : ar 2008 sc (supp) 1629, (2006) 8 scc 258 : 2006 air scw 4008 and : 1981 (supp) scc 38 : air 1982 sc 1177 deal with the question regarding the scope of the jurisdiction of a bench of a high court hearing a case upon reference made by a 'single judge. these decisions did not consider the question of the legal authority of the chief justice to place a case for disposal before a bench consisting of more than two judges. therefore we are of the opinion that the decisions relied upon by the learned counsel for the applicant would not in any way support the submission made by the learned counsel.12. we are of the opinion that the whole fallacy in the submission of the learned counsel for the applicant is that he proceeds on the assumption that the authority of the chief justice in fixing the roster or assigning the cases to the various judges of the high court either sitting or in a division bench consisting of two judges or larger benches consisting of more than two judges flows from the rules framed under article 225 of the constitution. we have already noticed the decisions of the supreme court and also the calcutta high court which laid down the principle that power of the chief justice in this regard does not flow from the rules framed under article 225 but it is a constitutional power vested in the chief justice under sections 13 and 14 of the charter act, 1861 which has been preserved from time to time under the successive govt. of india acts, 1915 and 1935 and article 225 of the constitution of india. we have elaborately quoted from : air 1990 cal 168 which judgment meticulously traced out the divulgence of the power of the chief justice in this regard. we may point out that the expressions 'division bench'. 'division court' and 'full bench' are not defined anywhere under the constitution. on the other hand section 108 of the govt. of india act, 1915 (which is already noted earlier in this judgment makes it clear that a 'division court' may consist of two or more judges of the high court.13. in the circumstances we do not find any substance in the submissions made by the learned counsel for the applicant and the preliminary objection is, therefore, rejected.14. the misc. case stands dismissed.
Judgment:

J. Chelameshwar, C.J.

1. When this matter was taken up on 29-4-2009 Mr. S. Deb, learned Counsel appearing for the applicant (respondent in PIL No. 50/04) raised a preliminary objection regarding the legality of the proceedings before this Full Bench. According to the learned Counsel petitions filed invoking the jurisdiction of this Court under Article 226 are required to be heard either by a single Judge or a Division Bench consisting of two Judges and the Rules framed by this Court in exercise of the power under Article 225 do not contemplate hearing of a petition filed under Article 226 of the Constitution by a Bench consisting of more than two Judges unless a Division Bench hearing the writ petition makes a specific reference of any question of law which in the opinion of the Bench hearing the matter is required to be considered and decided by a Full Bench or a Larger Bench. The learned Counsel further submitted that in the instant case there is no such order of reference by the Division Bench which was hearing the matter earlier calling for constitution of a Full Bench for taking up this matter and, therefore, the learned Counsel submitted that the continuance of the hearing by this Full Bench of three Judges of the instant case is without jurisdiction and must, therefore, be forthwith remitted back to the Division Bench which was hearing the matter prior to taking up of this matter by this Bench.

2. The learned Counsel for the petitioner in this behalf made reference to certain Rules framed by this Court in exercise of the power under Article 225 of the Constitution and also relied upon various judgments of the Supreme Court reported in : (2008) 3 SCC 243 : AIR 2008 SC (Supp) 1629 TA Hameed v. M. Viswanathan : (2006) 6 SCC 258 : 2006 AIR SCW 4008 Kerala State Science & Technology Museum v. Rambal Co. : 1981 Supp SCC 38 : AIR 1982 SC 1177 Kesho Nath Khurana v. Union of India and : 2004 (1) Mh LJ 619 Shikshan Prasarak Mandal v. Laxmikant Balakrishna Joshi.

3. The learned Counsel for the petitioner referred to Rule 1 and 2, Chapter VA of the Gauhati High Court Rules framed by this Court in exercise of the powers under Article 225 of the Constitution read with Article 6 of the Assam, High Court Order, 1948, The relevant portion of the above Rules are as follows:

1. An application for a direction or order or writ under Article 226 of the Constitution of India, other than writ of habeas corpus, shall be drawn up in the form contained in the schedule to this Chapter and shall be accompanied by an affidavit verifying the facts relied upon.

2(1) every such applications shall be made and heard before the single Judge except where the Chief Justice otherwise directs:

Provided that such application falling within any one or more of the following categories shall be heard by a Division Bench except where the Chief Justice otherwise directs,

(a) Public Interest Litigation;

(b) Habeas Corpus Application;

(c) Application relating to externment or deportation;

(d) Any application which a single Judge may refer to the Chief Justice for placing it before the Division Bench having regard to the importance of complexity of the case;

(e) Writ Petitions in which constitutional validity of any Act, Rules or any provisions thereof have been challenged.

(2) An appeal from the judgment and Order of a single Judge disposing of an application shall lie to the Division Bench if preferred within thirty days of the date of such judgment and Order. The Division Bench may condone the delay in filing any appeal, if good and sufficient cause is shown.

4. However, the learned Counsel submitted that though the expression 'a Division Bench' is not defined in Chapter VA, in view of the long established practice 'a Division Bench' is always understood within the jurisdiction of this High Court as Bench consisting of two Judges of this Court and the Rules framed under Article 225 do not contemplate the hearing of any writ petition by a Bench consisting of more than two Judges. The only situation according, to the learned Counsel in which a Bench consisting of more than two Judges can hear a petition under Article 226 is when thesis, an order of reference by a Division Bench, requiring the matter to be placed before a Bench of greater strength than of a Division Bench. As in this case there is no such order of reference and the matter is taken up by this Full Bench in view of an administrative 'order passed by the Chief Justice withdrawing this case from the Division Bench which was hearing the matter earlier, such an administrative order of the Chief Justice is beyond his jurisdiction and contrary to the tenor of the Rules and the long established practice of this High Court.

5. Confronted with the question as to the discretion of the Chief Justice contemplated under Rule 2(1) proviso, which enables the Chief Justice to direct the various categories of writ petitions enumerated under the said proviso to be heard by a Bench other than a Division Bench, the learned Counsel for the petitioner argued that such a power no doubt inheres in the Chief Justice on the threshold before a case is assigned to any Division Bench but once such assignment is made and the Division Bench is in seisin of the matter the Chief Justice would be without the legal authority to withdraw such a part heard matter and assign it to another Division Bench or a Larger Bench.

6. At the outset we must make it clear that the PIL No. 50/2004 was initially assigned to a Division Bench consisting of two of us (Hon'ble Mr. Justice Ranjan Gogoi and Hon'ble Mr. Justice B.P. Katakey) Subsequently by an administrative order of the Chief Justice the matter was directed to be listed before this Full Bench.

7. We are of the opinion that the submission of the learned Counsel for the petitioner is wholly ill-conceived and contrary to the established position of law regarding the powers and authority of the Chief Justice in the matter of determining the roster and assignment of the cases to the various Judges of the High Court. We must make it clear that the authority of the Chief Justice in determining the roster and assigning the cases to the various Judges of the High Court does not flow from the Rules framed under Article 225 of the Constitution. Such authority flows from the Constitution itself.

8. A Full Bench of the Calcutta High Court in : AIR 1990 Calcutta 168 Sohan Lal Baid v. State of West Bengal had an occasion to examine the legal position in this regard. Speaking for the Full Bench Justice PD Desai, Chief Justice traced out the entire legal history arid the source of power of the Chief Justice in dealing with the question.

11. The High Court Act or the Charter Act, 1861 (24 and 25 Viet, C 104), hereinafter called the Charter Act, which received the Royal assent on August 6, 1861, the parent legislation which authorised the establishment of High Courts of Judicature in India, Section 1 of the said Act providing, inter alia, that it shall be lawful for Her Majesty, by Letters Patent, to erect and establish a High Court of Judicature at Fort William in Bengal for the Bengal Division of the Presidency of Fort William and, by like Letters Patent, to erect and establish like High Court at Madras and Bombay for those Presidencies respectively, and that the High Courts to be established under such Letters Patent shall be deemed to be established from and after the publication of such Letters Patent in the same Presidency, or such other time as in such Letters Patent may be appointed in this behalf. Section 13 of the Charter Act provided that subject to any laws or regulations which may be made by the Governor-General in Council, the High Courts established in any Presidency under the said Act may, by their own rules, provide for the exercise, by one or more Judges or by Division Courts constituted by two or more Judges of the said High Court, of the original and appellate Jurisdiction vested in such Court, in such manner as may appear to such Court to be convenient for the due administration of justice. Section 14 provided that the Chief Justice of each High Court shall, from time to time, determine what Judge in each case shall sit alone, and what Judges of the Court, whether with or without the Chief Justice, shall constitute foe several Division Courts.

12. The Letters Patent dated May 14, 1862 for the High Court of Judicature to be established in Bengal in accordance with the provisions of the Chapter Act was transmitted to the Governor-General of India in Council by the dispatch dated May 14, 1862 from Sir Charles Wood, Secretary of State. The said Letters Patent were afterwards revoked by further Letters Patent dated December 28. 1865. Clause 36 of the Letters Patent dated December 28, 1865 in its original form provided, inter alia that any function which was thereby to be performed by the High Court of Judicature at Fort William in Bengal, in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court thereof, appointed or constituted for such purpose 'under the provisions of the thirteenth section of the aforesaid Act of the twenty-fourth and twenty-fifth years of our region.' Reference in the extracted portion aforesaid is to Section 13 of the Charter Act. The said extracted portion was substituted by the words 'in pursuance of section one hundred and eight of the Government of India Act, 1915' by the amendment Letters Patent of March 11, 1919.

13. Paragraph 35 of the dispatch from the Secretary of State accompanying the former Letters Patent mentioned, inter alia, that Clause 36 referred to the powers of single Judges and Division Courts appointed or constituted under the provisions of Section 13 of the Charter Act and that by Section 14 of the said Act, the power of determining from time to time what Judge in each case shall sit alone, and what Judges shall constitute Division Courts, was placed in the hands of the Chief Justice.

14. The Charter Act was repealed and re-enacted with slight modifications by the Government of India Act, 1915. Section 106 of the said Act provided, inter alia, that several High Courts are Courts of record and have all such powers and authority over or in relation to the administration of justice, including power to make rules for regulating the practice of the Court, as are vested in them by Letters Patent, and, subject to the provisions of any such Letters Patent all such jurisdiction, powers and authority as are vested in those Courts respectively at the commencement of the said Act. Section 108 of the said Act read as follows:

108. (1) Each High Court may by its own rules provide as it thinks fit for the exercise, by one or more Judges or by division Courts constituted by two or more Judge of the High Court of the original and appellate jurisdiction vested in this Court.

(2) The Chief Justice of each High Court shall determine what Judge in each case is to sit alone, and what Judges of the Court, whether with or without the Chief Justice, are to constitute the several division Courts.

15. The Government of India Act, 1915, was repealed and re-enacted with modifications by the Government of India, Act, 1935. Section 223 of the said Act read as follows:

223. Subject to the provisions of this part of the Act, to the provisions of any order in Council made under this or any other Act, to the provisions of any order made under the Indian Independence Act, 1947, and to the provisions of any Act of the appropriate Legislature enacted by virtue of powers conferred on that Legislature by this Act, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Court, shall be the same as immediately before the establishment of the Dominion. 16. The Government of India Act, 1935, was repealed by the Constitution of India, Article 225 of the Constitution of India, in so far as it is relevant for the present purposes, reads as follows:

225. Jurisdiction of existing High Courts.--Subject to the provisions of the Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice In the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or In Division Courts, shall be the same as Immediately before the commencement of this Constitution.17. In National Sewing Thread Co. Ltd. v. James Chadwick & Bros. : AIR 1953 SC 357, it was ruled that power that was conferred by Section 108 of the Government of India Act, 1915 could be exercised from time to time with reference to jurisdiction whether existing at the time of the coming into force of the said Act or whether conferred by subsequent legislation, and that the said power still subsists and that it has not been affected in any manner whatever either by the Government of India Act, 1935 or by the Constitution. On the other hand, it has been kept alive and reaffirmed with great vigour by those statutes. It was further observed that the power is there and continues to be there and can be exercised In the same manner as it could be exercised when it was originally conferred subject, of course, to the alternation by an appropriate1 legislation.

18. It is thus clear that the Chief Justice of the High Court has the constitutional power to determine what Judge in each case is to sit alone, and what Judges of the Court whether with or without the Chief Justice-are to constitute the several Division Courts. In other words, the function of assignment of judicial business amongst the Judges of the High Court, whether sitting or in Division Courts, is entrusted by law to the Chief Justice and the Judge or Judges derive jurisdiction to deal with and decide the case or class of cases assigned to them by virtue of the determination made by the Chief Justice. This power is derived not only from the provisions of Section 108 Sub-section (2) of the Government of India Act. 1915. which still subsists and the power where under still continues to be there, as held in National Sewing Thread Co. Ltd. s case, but also inheres in the Chief Justice.

19. The following observations in State of Maharashtra v. Narayan : AIR 1982 SC 1198 at page 1200 succinctly bring out the existence of such inherent powers in the Chief Justice.

The Chief Justice is the master of the restor. He has full power, authority and jurisdiction in the matter of allocation of business of the High Court which flows not only from the provisions contained in Sub-section (3) of Section 51 of the Act, but inheres in him in the very nature of things.

In coming to the said conclusion the Calcutta High Court also relied upon certain observations made by the Supreme Court in : AIR 1962 SC 876 Pramathnath Talukdar v. Saroj Ranjan Sarkar. The Supreme Court at page 883 held:.I further think that the Chief Justice must have the inherent power to constitute a larger Bench in special circumstances.... The Chief Justice, I think, must possess such an inherent power in the matter of constitution of Benches and in the exercise thereof he can surely constitute a larger Bench in the case of importance....

9. In the year' 1948 a separate High Court known as the High Court of Assam came to be established by an order of the Governor General. Such ah order was passed by the Governor General in exercise of the powers under Section 299(1) of the Government of India Act, 1935, as, adopted by the India Provincial Constitution (Amendment) Order, 1948. Para 4 of the said Order declares as follows:

4. The High Court of Assam shall have, in respect of the territories for the time being included in the Province of Assam, all such original appellate and other jurisdiction as, under the law in force immediately before the prescribed day, is exercisable in respect of the said territories or any part thereof by the High Court in Calcutta, or by the Governor of Assam exercising the functions of a High Court.

Para 6 of the said Order declares as follows:

6. Subject to the provisions of this order, the law in force immediately before the prescribed day with respect to the practice and procedure in the High Court in Calcutta shall, with the necessary modifications, apply in relation to High Court of Assam, and accordingly that High Court shall have all such powers to make rules and orders with respect to practice and procedure as are immediately before the prescribed day exercisable by the High Court of Calcutta

Provided that any rules or orders which are in force immediately before the prescribed day with respect to practice and procedure in the High Court in Calcutta shall, until varied or revoked by rules or orders made By the High Court of Assam, apply with the necessary modifications in relation to practice and procedure in the High Court of Assam as if made by that Court.

From the above paragraphs of the Assam High Court Order extracted above it appears that the powers of the newly created Assam High Court and the law with respect to the practice and procedure to be followed by the High Court shall be the same as. the law applicable to the Calcutta High Court. The Assam High Court over a period of time came to be renamed as the Gauhati High Court for various historical reasons, the details of which may not be necessary for the present purpose. Therefore, the powers of the Chief Justice of the Gauhati High Court, in our view are the same as the powers of the Chief Justice of the Calcutta High Court, as pointed out by the Full Bench of the Calcutta High Court in : AIR 1990 Calcutta 168.

10. In : (1998) 1 SCC 1 : AIR 1998 SC 1344 State of Rajasthah v. Prakash Chand, the Supreme Court once again had to consider the power and authority of the Chief Justice in the matter of allotment of work. After elaborately considering the issue at para 59 the Supreme Court held as follows:

59. From the preceding discussion the following broad CONCLUSIONS emerge....

(1)...

(2) That the Chief Justice is the master of the roster. He alone has the prerogative to constitute benches of the Court and allocate cases to the benches so constituted.

(3), (4)...

(5) That the Chief Justice can take cognizance of an application laid before him under Rule 55 (supra) and refer a case to the larger bench for its disposal and he can exercise this jurisdiction even in relation to a part-heard case.

The Supreme Court quoted with approval a decision of the Allahabad High Court in 1996 AWC 644 Sanjay Kumar Srivastava v. Acting Chief Justice and at para 21 of the judgment the Supreme Court noted that the objection raised before the Allahabad High Court was that a writ petition which was heard in part by a Division Bench could not have been withdrawn by the Chief Justice and place before a Full Bench for hearing. The Allahabad High Court rejected the said submission.

It is, therefore, clear that the submission of the learned Counsel for the applicant that the power of the Chief Justice to assign a case to a Division Bench or a Full Bench could be exercised only on the threshold and a part heard matter cannot be withdrawn by the Chief Justice, cannot be accepted.

11. On the other hand the decision relied upon by the learned Counsel for the applicant in (2008) 3 SCC 234 : AR 2008 SC (Supp) 1629, (2006) 8 SCC 258 : 2006 AIR SCW 4008 and : 1981 (supp) SCC 38 : AIR 1982 SC 1177 deal with the question regarding the scope of the jurisdiction of a Bench of a High Court hearing a case upon reference made by a 'single Judge. These decisions did not consider the question of the legal authority of the Chief Justice to place a case for disposal before a Bench consisting of more than two Judges. Therefore we are of the opinion that the decisions relied upon by the learned Counsel for the applicant would not in any way support the submission made by the learned Counsel.

12. We are of the opinion that the whole fallacy in the submission of the learned Counsel for the applicant is that he proceeds on the assumption that the authority of the Chief Justice in fixing the roster or assigning the cases to the various Judges of the High Court either sitting or in a Division Bench consisting of two Judges or Larger Benches consisting of more than two Judges flows from the Rules framed under Article 225 Of the Constitution. We have already noticed the decisions of the Supreme Court and also the Calcutta High Court which laid down the principle that power of the Chief Justice in this regard does not flow from the Rules framed under Article 225 but it is a constitutional power vested in the Chief Justice under Sections 13 and 14 of the Charter Act, 1861 which has been preserved from time to time under the successive Govt. of India Acts, 1915 and 1935 and Article 225 of the Constitution of India. We have elaborately quoted from : AIR 1990 Cal 168 which judgment meticulously traced out the divulgence of the power of the Chief Justice in this regard. We may point out that the expressions 'Division Bench'. 'Division Court' and 'Full Bench' are not defined anywhere under the Constitution. On the other hand Section 108 of the Govt. of India Act, 1915 (which is already noted earlier in this judgment makes it clear that a 'Division Court' may consist of two or more Judges of the High Court.

13. In the circumstances we do not find any substance in the submissions made by the learned Counsel for the applicant and the preliminary objection is, therefore, rejected.

14. The Misc. Case stands dismissed.