Bombay High Court
Abhijeet S/O Sudhakarrao ... vs Honble Chief Justice Bombay High ... on 10 January, 2022
Bench: S.B. Shukre, Anil Laxman Pansare
1
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.19/2022
Abhijeet S/o Sudhakarrao Bhalerao
..Vs..
Hon'ble Chief Justice Bombay High Court, Bombay and another
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Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
Mr. Abhijeet Sudhakarrao Bhalerao petitioner in person.
CORAM :- SUNIL B. SHUKRE AND
ANIL L. PANSARE, JJ.
DATED :- 10.1.2022.
Heard the petitioner who is an Advocate and who
appears in person in support of the contentions made in
this petition. This petition has been filed questioning the
legality and correctness or otherwise of the Circular
dated 14.7.2021 and in the opinion of the petitioner, this
Circular is illegal and ultra vires Article 166 of the
Constitution of India. On this ground, the petitioner has
sought quashing and setting aside of the Circular dated
14.7.2021 and this is the first prayer of the petitioner.
2. The petitioner has also made further prayers. The
further prayers relate to restoration of the position ante
14.7.2021, grant of permission to the Advocates to file
pleadings, submissions etc. on legal paper without any
objection from the ministerial staff and issuance of
direction for continuation of the practice of filing of
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pleadings and submissions on A4 size paper with GSM 75
only for a specified time and issuance of direction to
discontinue this practice after specified time is over.
3. By the impugned Circular dated 14.7.2021, the
Hon'ble the Chief Justice and Judges of this Court have
taken a decision to direct that all pleadings, petitions,
affidavits or other documents etc. submitted to the
Registry on judicial side for the purpose of filing in the
High Court and it's Benches at Nagpur, Aurangabad and
Panaji (Goa) and all other Courts in the State of
Maharashtra, shall be in a manner and on a paper type
having specifications as given hereinbelow:-
"Superior quality A4 size paper having not less
than 75 GSM with printing on the both sides of
the paper with Font - Times New Roman or
Georgia, Font size 14 with inner margin of 5
cms and outer margin 3 cms."
4. This Circular also directs that even for internal
communications, similar paper type with similar
specifications and in same manner shall be used.
5. According to the petitioner, this Circular which is
nothing but an executive order of the High Court has not
been issued in the name of Governor, as required under
Articles 166(1) and 166(2) of the Constitution of India.
6. With due respect to the submissions made by the
petitioner, we must say it here that there is no substance
in the argument of the petitioner. Reasons are not too far
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to seek.
7. The independence of judiciary, which is the third
wing of the democratic scheme under the Constitution, is
one of the basic features of the Constitution and the
powers of the High Court as delineated in Chapter V of
the Constitution are representative of the independent
status of the High Court [see High Court of Judicature at
Bombay V/s. Shirish Kumar Rangrao Patil (1997) 8 SCC
339]. Under the Constitutional scheme there is a
separation of powers amongst executive, legislature and
the High Court and each wing of governance is supreme
within it's own sphere of powers. Under Article 227(2)
read with Article 235 of the Constitution, forming part of
Chapter V, power has been conferred upon the High
Court to do various acts which include, making and
issuance of general rules and prescription of forms for
regulation of practice and procedure of the Courts in
respect of which the High Court has authority to
superintendent. This power of the High Court is exclusive
to it under the doctrine of 'separation of powers' and it
cannot be interfered with or encroached upon by any
other wing of the Government. As regards the
prescription of Article 166, which is about conduct of
Government business, we must say it here that it has it's
application to the executive wing of the Government and
not to the High Court which is supreme within it's own
sphere of power under Article 227(2) read with Article
235, unless exercise of power by High Court under these
articles comes in conflict with any other provisions of or
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power under the Constitution of India, such as Article 14,
16, 311 or the Rules made by the Governor under Article
309 [see State of Assam V/s. Kusewar Saikia, AIR 1970
SC 1616, Supreme Court Advocates on Record
Association V/s. Union of India (1993) 4 SCC 441, Goel
B.L. V/s. State of U.P., AIR 1979 SC 228, State of Haryana
V/s. Inder Prakash Anand, AIR 1976 SC 1841, State of
U.P. V/s. Batuk Deo Pati Tripathi (1978) 2 SCC 102, Hari
Datt Kainthla V/s. State of U.P., AIR 1980 SC 1426 and
Chief Justice of A.P. V/s. L.V.A. Dixitulu, AIR 1979 SC
193, State of W.B. V/s. Nripendra Nath Bagchi, AIR 1966
SC 447). Such is not the case here.
8. As stated earlier, what is laid down in the Articles
166(1) and 166(2) would have no application when it
comes to exercise of powers by the High Court under
Article 227(2) read with Article 235 of the Constitution
of India. Under Article 227(2) and 235 of the
Constitution it is for the Hon'ble the Chief Justice and the
Judges of the High Court to exercise powers specified
therein without mixing with or interfering with the
executive powers of the Government and vice versa.
Therefore, the argument that the impugned Circular
violates Article 166 has no merit. It deserves to be
rejected and it is rejected accordingly.
9. As regards the impugned Circular dated
14.7.2021, we must point out here, it has been issued
only after the gazette notification was published whereby
amendments were introduced to Chapter XVII, Rule
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10(ii) of the Bombay High Court Appellate Side Rules,
1960. This notification has not been challenged in any
manner by the petitioner. The petitioner, however,
submits that even though there is no specific challenge
made to this notification, the notification being void ab
initio, no specific challenge is necessary. According to
him, before issuing gazette notification whereby
amendments to Rule 10(ii) of Chapter XVII were made, it
was necessary that previous publication of the proposed
amendments was made so that objections to the
proposed amendments could have been filed and this is
the requirement of Section 24 of the Maharashtra
General Clauses Act, 1904, as held in the case of
Prashant Babusaheb Ghiramkar V/s. State of
Maharashtra and others reported in 2013(6) Mh.L.J. 703.
In support, he invites our attention to the observations
made in paragraph 6 of the judgment.
10. Paragraph 6 of the judgment reproduces provisions
of Section 24 of the Maharashtra General Clauses Act and
it would be appropriate that same is reproduced here as
well. They go as under:-
"24. Provisions applicable to making of rules or
by-laws after previous publication.-
Where, by any Bombay Act or Maharashtra Act,
a power to make rules or by-laws is expressed
to be given subject to the condition of the rules
or by-laws being made after previous
publication, then the following provisions shall
apply, namely :-
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(a) the authority having power to make the
rules of by-laws shall, before making them,
publish a draft of the proposed rules or by-laws
for the information of persons likely to be
affected thereby;
(b) the publication shall be made in such
manner as that authority deems to be sufficient
or, if the condition with respect to previous
publication so requires, in such manner as the
Central Government, or as the case may be, the
State Government prescribes;
(c) there shall be published with the draft a
notice specifying a date on or after which the
draft will be taken into consideration;
(d) the authority having power to make the
rules or by-laws, and, where the rules or
by-laws are to be made with the sanction,
approval or concurrence of another authority,
that authority also, shall consider any objection
or suggestion which may be received by the
authority having power to make the rules or
by-laws from any person with respect to the
draft before the date so specified;
(e) the publication in the Official Gazette of a
rule or by-laws purporting to have been made
in exercise of a power to make rules or by-laws
after previous publication shall be conclusive
proof that the rule or by-law has been duly
made."
11. A careful reading of the aforestated provision
would make it clear that this provision has no
application whatsoever to the amendment
challenged in this petition for two reasons. Firstly,
the provision comes into play only when the rules or
by-laws are proposed to be made in exercise of any
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power regarding making of rules or by-laws
conferred under any Bombay or Maharashtra Act
and in the instant case, the rule making power
which has been invoked is from Article 227 of the
Constitution of India. So, no recourse could be
made to Section 24 of the Maharashtra General
Clauses Act. Secondly, the provisions made in
Section 24 of the Maharashtra General Clauses Act
leave no doubt in one's mind that previous
publication is necessary only when the power of
making rules or by-laws has been given subject to
the condition of the rules or by-laws being made
after previous publication. This is also not the case
here. It then follows that no assistance could be
sought by the petitioner from the case of Prashant
Babusaheb Ghiramkar (supra) and it cannot be said
that Section 24 of the said Act would have any
application to the present case.
12. In the circumstances, we find no merit in the
first prayer seeking quashing and setting aside of the
impugned Circular dated 14.7.2021.
13. As regards second and third prayers, we
would say that as the first prayer has been rejected,
the second and third prayers also stand rejected as a
necessary consequence thereof. This is true about
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remaining prayers as well.
14. The petition is, therefore, summarily
dismissed. No costs.
JUDGE JUDGE
Signed By:NILESH VILASRAO
TAMBASKAR
Private Secretary
Signing Date:11.01.2022 17:40
Tambaskar.
