M/S. Magnum Opus It Consulting ... vs M/S. Artcad Systems Thr. ...
2023 Latest Caselaw 3566 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL APPELLATE JURISDICTION

                           WRIT PETITION NO.4985 OF 2023

    M/s. Magnum Opus IT Consulting Pvt. Ltd.               .... Petitioner

                versus

    M/s. Artcad Systems                                    .... Respondent
                                           .......

    •       Mr. Saket Mone a/w Mr. Sangramsingh R. Bhonsle a/w Mr.
            Siddharth A. Mehta a/w Mr. Abhishek Salian a/w Mr. Pushkara
            A. Bhonsle i/b. Vidhii Partners, Advocate for Petitioner.
    •       Mr. Alankar Kirpekar a/w Sagar Kasar a/w Ms. Chaitali Bhogle
            i/b. Vivekanand V. Krishnan, Advocate for Respondent.

                                  CORAM       : SARANG V. KOTWAL, J.

                                  DATE        : 11th APRIL 2023

    P.C. :

1. Heard Mr. Saket Mone, learned counsel for the Petitioner

and Mr. Alankar Kirpekar, learned counsel for the Respondent.

2. In this Writ Petition, the Petitioner has challenged the

order dated 26/01/2023 passed by the learned Arbitrator,

Nashik, in Arbitration Petition No.169 of 2016. This Petition is

filed under Article 227 of the Constitution of India. It involves

Nesarikar

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provisions of the Micro, Small and Medium Enterprise Development

Act 2006 and the Arbitration and Conciliation Act, 1996.

3. Learned counsel for the Respondent raised a

preliminary objection that the Petition does not lie before a

Single Judge Bench of this Court and it should be listed before a

Division Bench. In view of that objection, I had directed the

Registry to examine this issue and submit a report. The Registry

has submitted a report dated 30/03/2023 and it was mentioned

that this Writ Petition will lie before the Division Bench.

4. Learned counsel for Respondent relied on the orders

passed by two Division Benches of this Court as follows:

(i) The first is the order dated 04/01/2021 passed in Writ Petition (ST) No.24 of 2021 in the case of Shivaji Laxman Wadkar Vs Election Returning Officer and Anr. There was another connected Writ Petition which was decided by the same order.

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                  (ii)         The judgment in the case of Shri Hariom Krishi

Kendra Vs State of Maharashtra & Others, as reported in 2020 (3) Mh. L. J. 118.

5. On the other hand, learned counsel for the Petitioner

relied on the judgment of Full Bench of this Court in the case of

Prakash Securities Pvt. Ltd. Vs. Life Insurance Corporation of

India, as reported in 2012 (5) Mh.L.J. 312 to contend that the

Petition lies before the Single Judge.

6. I have considered these submissions and I have perused

these judgments referred by the parties. As far as Shivaji's case

(supra) is concerned, paragraph Nos.10 to 13 are important,

which read thus:

"10. Admittedly the Maharashtra Village Panchayats Act, 1959 is not specified as one of those Acts prescribed in Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960. A perusal of the explanation to the said rule makes it clear that the expression 'order' appearing in clauses 1 to 46 thereof means any order passed by

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any judicial or quasi judicial authority empowered to adjudicate under those specified statues.

11. A conjoint reading of the aforesaid provisions makes it clear that even if the impugned order is passed by a quasi judicial authority, that itself would not be the criteria to decide that the learned Single Judge of this Court could hear the writ petition under Article 226 or Article 227 of the Constitution of India unless the impugned order is passed by any judicial or quasi judicial authority empowered to adjudicate under one of those Acts specified in Rule 18 of Chapter XVII.

12. There is no merit in the submission of the learned senior counsel for the petitioner that in view of sub-Rule 3 of Rule 18 a learned Single Judge of this Court has jurisdiction to hear the matter arising out of the order passed under the provisions of the Maharashtra Village Panchayats Act. In our view, rule 3 will have to be read with rule 18, 1st Part which specifies the number of Acts to be read with explanation which makes it clear that a Single Judge can exercise powers under Article 226 or Article 227 of the

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Constitution only if the quasi judicial or judicial order is passed under any of the Acts specified under Rule 18 of the Bombay High Court Appellate Side Rules.

13. In view of the fact that the Maharashtra Village Panchayats Act does not fall under any of those specified Acts, these writ petitions impugning quasi judicial orders passed under Maharashtra Village Panchayats Act pertain to the Division Bench and not Single Judge of this court. The objection raised by the learned senior counsel for the petitioner is devoid of merits and is accordingly rejected."

7. In the case of Shri Hariom Krishi Kendra (supra)

paragraph No.16 is important which reads thus:

"16. Two tests are required to be satisfied by the Single Judge to hear and dispose of the writ petitions under Articles 226 and 227 of the Constitution of India and those are - (i) that it challenges the judicial or quasi judicial orders, and (ii) that such orders are passed in exercise of the statutory power conferred under the

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enactments specified in Items (1) to (46). Thus, the nature of the order and the enactment covered by Rule 18; are the two tests. Any decision by the Single Judge travelling beyond the scope of Rule 18 would be void. Therefore, the provision of Rule 18 will have to be construed strictly. The Single Judge cannot travel beyond the restrictions imposed therein."

These observations are quite strong and it was

observed that any decision by the Single Judge travelling beyond

the scope of Rule 18 would be void.

8. In view of these observations, it is necessary to be very

sure whether a Single Judge has jurisdiction to decide such Writ

Petitions. The view taken by both these Division Benches

appears that unless the Acts concerned are mentioned in the list

provided under Rule 18 of Chapter XVII of the Bombay High

Court Appellate Side Rules, 1960, the Petition under Article 226

or Article 227 will not lie before the Single Judge Bench.

9. In Shivaji Wadkar's case (supra) Division Bench took

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into consideration sub-rule 3 of Rule 18 of the Chapter XVII

which appears to be quite wide.

10. Exactly this rule fell for consideration before the Full

Bench which is reflected in the judgment in Prakash Securities's

case (supra). Paragraph No.5 of that judgment is important,

which reads thus;

"5. Having heard the learned Counsel appearing for parties, we find that Clause (3) of Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960, is wide enough to include the orders passed by any quasi-judicial authority under any enactment, even it such explanation is not covered by clauses 1, 2 and 4 to 43 of Rule

18. It is necessary to note that the original Rule 18 had 5 clauses providing that the orders passed under the Rules and legislations specified therein may be challenged in the writ petition before the Single Judge. It appears that subsequently several clauses came to be added to Rule 18. In the year 1997 by Notification dated 16-10-1997, the Explanation came to be added. It was thereafter

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by Notification dated 15-7-1999 that Clause (3) of Rule 18 came to be amended to insert the words "or by any quasi-Judicial Authority". It appears to us that this amendment to clause (3) of Rule 18 was made in the year 199 to cover orders of any quasi-Judicial Authority under any other legislation which may not have been specified in Clause (1) to (43). Hence, the order passed by the quasi-Judicial Authority under the Public Premises Act, 1971 is also covered by Rule 18(3) so as to indicate that the petitions under Articles 226 or 227 of the Constitution challenging the order of quasi-Judicial Authority under the Public Premises Act, 1971 is to be heard and decided by the learned Single Judge of this Court."

11. Thus, it appears that there is divergent view in the Full

Bench judgment and the Division Bench judgments referred to

hereinabove.

12. Both the learned counsel fairly submitted that though

the Full Bench judgment would be binding in such situation, the

matter still requires consideration by a Larger Bench instead of

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being decided by a Single Judge Bench. In my opinion also,

when there is Division Bench judgment taking a particular view,

then propriety requires that the matter is referred to a Larger

Bench rather than expressing any opinion on either of these

views. There is one more submission advanced by learned

counsel for the Respondent in respect of the Full Bench

judgment. He submitted that after the Full Bench Judgment was

delivered, the said rule was further amended and three more

Acts were added in the list. He submitted that if sub-rule 3 was

in operation, then there was no necessity to add further Acts in

the list. He submitted that it was a subsequent development

which occurred after passing of the judgment by the Full Bench

and therefore it would also be a relevant consideration.

13. Since these issues keep coming up in many matters, it

is necessary that they are finally decided by authoritative

pronouncement. Considering the importance of the issue, I am

invoking the provisions of Rule 8 of Chapter I of the Bombay

High Court Appellate Side Rules, 1960, which reads thus:

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"8. Reference to two more Judges -

If it shall appear to any Judge, either on the application of a party or otherwise, that an appeal or matter can be more advantageously heard by a Bench of two or more Judges, he may report to that effect to the Chief Justice who shall make such order thereon as he shall think fit."

14. Considering this discussion, the following order is passed :

ORDER

(i) The Registry is directed to place this matter before the Hon'ble the Chief Justice for consideration of constituting an appropriate larger Bench to decide the issue which is framed as follows -:

"Whether the Single Judge's powers to finally dispose of applications under Article 226 or 227 as provided under Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960, are applicable to the specific Acts mentioned under sub-

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Rule 6 to 46 of the said Rule in relation to judicial or quasi-judicial orders or these powers extend to any judicial or quasi- judicial orders under any statute that is not mentioned under sub-Rule 6 to 46 of the said Rule."

(ii) In the interest of justice, ad-interim relief granted earlier, shall continue till 12/06/2023.

(SARANG V. KOTWAL, J.)