Bombay High Court
Shri Naresh Govind Vaze vs The High Court Of Bombay Through The ... on 7 May, 2024
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
SNEHA
2024:BHC-AS:20990-DB
ABHAY
DIXIT
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed CIVIL APPELLATE JURISDICTION
by SNEHA
ABHAY DIXIT
Date: 2024.05.07
10:39:16 +0530 WRIT PETITION NO.13741 OF 2016
Mr. Naresh Govind Vaze, ]
R/at Matruchhaya Building, ]
Room No.2, Property No.81/1, ]
Behind Vedant Tower, Tulinj, ]
Nallasopara (East), PIN - 401209. ] .. Petitioner
Versus
1. The High Court of Bombay ]
Through the Registrar General ]
High Court of Bombay, ]
Mumbai - 400 023. ]
2. The Government of Maharashtra, ]
Through Chief Secretary / Principal Secretary, ]
Law and Judiciary Department, ]
Mantralaya, Mumbai - 400 032. ] .. Respondents
Mr. Naresh Govind Vaze, the Petitioner is present in-person.
Mr. Rahul Nerlekar, Advocate for Respondent No.1-High Court.
Mr. N.C. Walimbe, Additional Government Pleader, with Mr. S.P. Shetye,
Assistant Government Pleader, for Respondent No.2-State of Maharashtra.
CORAM : A.S. CHANDURKAR & JITENDRA JAIN, JJ
The date on which arguments were heard : 2 ND APRIL, 2024.
The date on which Judgment is pronounced : 7TH MAY, 2024.
JUDGMENT :
[ Per A.S. Chandurkar, J. ]
1. RULE. Rule made returnable forthwith and heard the petitioner-in-
person as well as the learned counsel for the respondents.
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2. The petitioner, a Law Graduate and a former Judicial Officer, has
raised a challenge to the Notification dated 9 th September 2015 notifying
the "Rules for Presentation and Conduct of Proceedings in Person by
Parties" (for short, the said Rules) principally on the ground that the said
Rules prevent a party-in-person from appearing before the Court and
arguing his / her case in person. It has been pleaded in the writ petition
that on 21st July 2016, the petitioner had appeared in person in Writ
Petition (Stamp) No.19347 of 2016. The Division Bench hearing the said
writ petition required the petitioner to appear before the Committee of
two Officers of the Registry in accordance with Rule 2 of the said Rules.
According to the petitioner, a party litigating cannot be denied the right of
audience at the threshold of the litigation and the same offends the
provisions of Article 19(1)(a) of the Constitution of India. Requiring a
party who desires to appear in person to appear before the Committee
defeats the right of such party to put-forth his / her say in the matter
before the Court. It is thus prayed by the petitioner that the said
notification be quashed and it be declared that a party-in-person desiring
to appear before the Court is not required to first appear before the
Committee constituted under Rule 2 of the said Rules.
3. The petitioner-in-person as well as the learned counsel appearing
for the 1st respondent have placed on record their written notes of
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arguments. Compilation of various documents, including the decisions
sought to be relied upon are also placed on record. It is in this backdrop
that the challenge as raised by the petitioner-in-person is being
considered.
4. In the written note of arguments submitted by the petitioner-in-
person, it has been stated that there can be law providing reasonable
restrictions while exercising fundamental rights. The restrictions, if any,
have to be reasonable but the same should not result in a party-in-person
being completely disabled from appearing in person before the Court.
Requiring a party who desires to appear in person to submit an
undertaking is also unwarranted for the reason that the provisions of the
Contempt of Courts Act, 1971 are sufficient to take care of any
irresponsible conduct of such party-in-person. Reference has been made to
the provisions of Order III Rule 1 of the Code of Civil Procedure, 1908,
(for short, the Code) which recognizes the right of a party to appear and
contest proceedings in a court of law. An objection is also sought to be
raised to the use of the expression "unparliamentary language or
behaviour" in Rule 5 of the said Rules. These terms being undefined are
likely to result in indiscriminate interpretation. The said Rules though
stated to be framed in exercise of powers conferred by the Code, the same
are inconsistent and thus discriminatory as well as violative of Articles 14
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and 19(1)(a) of the Constitution of India. It is thus prayed that the
Notification dated 9th September 2015 be quashed and set aside.
5. In the written note of arguments submitted on behalf of the 1 st
respondent, it has been stated that in accordance with Article 225 of the
Constitution of India, read with the Code as well as Clause XXXVII of the
Letters Patent, the High Court has inherent powers to regulate it's
procedure and frame appropriate procedural rules for proper
administration of justice. The said Rules are in the nature of procedural
instructions for regulating the appearance of parties who wish to appear in
person before the High Court. The said Rules do not prevent any party-in-
person from appearing before the Court. The Rules having been approved
by the Full House of the High Court and thereafter having been published
in the Official Gazette cannot be stated to be brought into force pursuant
to an exercise without jurisdiction. Reference has been made to the
decision of the Supreme Court in Iridium India Telecom Ltd. Vs. Motorola
INC., (2005) 2 SCC 145 as well as the judgment of the Full Bench of the
Delhi High Court in M/s. Print Pak Machinery Ltd. Vs. Jay Kay Papers
Conveters, (1979) ILR II Delhi 28. In addition, copy of the order dated 7th
March 2024 passed in Civil Application No.10105 of 2021 in Public
Interest Litigation No.89 of 2021 (Peoples Right Vigilance Organization
(NGO), Jalna and Ors. Vs. The Hon'ble High Court of Bombay, Mumbai
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and Ors.) by the Aurangabad Bench considering a similar challenge is also
sought to be relied upon. It is thus submitted that there being no illegality
in the framing of the said Rules, the writ petition was liable to be
dismissed.
6. We have heard the petitioner-in-person and Mr. Rahul Nerlekar,
learned counsel appearing for the 1st respondent. By the Notification dated
9th September 2015, the "Rules for Presentation and Conduct of
Proceedings in-Person by Parties" have come into force pursuant to their
publication in the Official Gazette. Chapter IV - A has been inserted in the
Bombay High Court (Appellate Side) Rules, 1960 while the very same
Rules have also been inserted in Chapter LVIII - A in the Bombay High
Court (Original Side) Rules, 1980. The said Rules require a party who
wants to appear and argue the case in person to first file an application
along with the proceedings seeking permission to appear in person. The
reasons for such party to be unable to engage an Advocate are required to
be indicated as well as expressing willingness to accept an Advocate who
can be appointed for such party by the Court. On such application being
filed, a Committee of two Officers of the Registry nominated by the
learned Chief Justice is required to scrutinize the matter and examine the
averments made therein. The Committee has to interact with the party-in-
person and thereafter express an opinion by way of an office report
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indicating whether the party-in-person would be able to give necessary
assistance to the Court or whether an Advocate could be appointed as
amicus curiae in such case. A similar procedure is required to be followed
when a party wishes to defend his / her proceedings in person.
. If it is certified that a party-in-person is competent to assist the
Court in-person, an undertaking is required to be given that such party
would maintain decorum of the Court and would not use or express
objectionable and unparliamentary language or behaviour during the
course of hearing in the Court or in the Court premises or in further
pleadings. Failure to abide by such undertaking would result in initiation
of contempt proceedings. The said Rules however are not applicable when
applications for temporary bail, parole, furlough and habeas corpus are
made. Notwithstanding anything provided in the said Rules, the concerned
Court before which the matter lies can in it's discretion permit a litigant to
appear in person and conduct the proceedings. The Court can also in it's
discretion require the concerned litigant to first appear before the Scrutiny
Committee under Rule 2 or 3 as the case may be.
7. Perusal of the said Rules in their entirety indicates that the same
seek to regulate the mode and manner in which a party who wants to
appear and argue the case in person can do so. The said party is required
to indicate the reason as to why he / she cannot engage an Advocate and
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wants to appear and argue in person. The Committee as constituted is
required to scrutinize the pleadings of the said proceedings and thereafter
interact with the party-in-person and express it's opinion as to whether
such party would be able to give necessary assistance to the Court for
disposal of the matter. On being certified to be competent to assist the
Court, the party-in-person is required to give an undertaking so as to
maintain decorum of the Court and the use of language therein. Rule 7 of
the said Rules is found to be relevant and the same is reproduced
hereunder.
"7. Notwithstanding anything contained in these Rules,
the concerned Court before which the matter lies, may,
in its discretion, permit a litigant/s to appear in person
and conduct the proceedings :
Provided, that the Court may, in its discretion, require
the concerned litigant/s, first to appear before the
Scrutiny Committee under Rule 2 or Rule 3, as the
case may be."
8. It can be seen from the aforesaid Rules that, firstly, there is no
blanket prohibition or bar for a party to appear in person before the Court.
The Rules merely regulate the manner in which a party who desires to
appear in person is required to take steps to facilitate the same. The
modalities prescribed are merely regulatory in nature with an object that
the time of the Court while hearing a party-in-person is not spent on
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unnecessary details and that the party-in-person is found broadly in a
position to render necessary assistance to the Court for deciding his/her
matter. The procedure in that regard is not aimed to prevent or bar a party
from appearing in person. Subject to compliance with the requirement of
the said Rules, permission can be granted to such party to appear in
person. Rule 7 of the said Rules starts with a non-obstante clause and it is
open for the concerned Court while entertaining the matter in question to
permit in it's discretion a litigant to appear in person and conduct the
proceedings. In other words, the Court may permit a litigant to appear in
person and conduct the proceedings without undertaking the procedure
prescribed by Rules 1 to 4 of the said Rules. In such case, the concerned
Court may find that a litigant who is appearing in person for conducting
the proceedings is in a position to assist it without the requirement of any
such certification by the Committee constituted under Rule 2. This would
indicate therefore that in a given case, a party desiring to appear in person
for conducting the proceedings can appear before the concerned Court,
which, if satisfied, can permit such party to appear in person and conduct
the proceedings. The right of a party to appear in person for conducting
the proceedings without approaching the Committee is thus preserved
subject to discretion of the concerned Court. Moreover, the said Rules also
do not apply if a party desires to appear in person when the proceedings
relate to applications for temporary bail, parole, furlough and habeas
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corpus.
9. In our view, Rules 6 and 7 of the said Rules clearly indicate that a
party if governed by the proceedings referred to in Rule 6 or a party who
is permitted by the concerned Court under Rule 7 to appear in person is
not required to undergo the exercise prescribed by Rules 1 to 4 of the said
Rules. The prohibition in that sense is not absolute and sufficient provision
has been made wherein a party in the proceedings that have been referred
to in Rule 6 is entitled to appear in person. Rule 7 is of wider application
and it applies to all matters subject to the discretion being exercised by the
concerned Court. We therefore do not find that the said Rules in any
manner prevent a party from appearing in person. The bar is not absolute.
The said Rules are merely regulatory in nature and cases falling within
Rules 6 and 7 do not require the exercise prescribed by Rules 1 to 4 to be
undertaken. It is thus clear that the said Rules are not prohibitive in nature
so as to offend the provisions of Articles 14 and 19(1)(a) of the
Constitution of India. They are merely regulatory in nature and have been
framed to enable presentation and conduct of proceedings by a party-in-
person smoothly to facilitate the administration of justice.
10. We may note that the Division Bench in Peoples Right Vigilance
Organization (NGO), Jalna and Ors. (supra) has considered the challenge
based on the said Rules not being approved by the State Legislature before
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coming into force. That challenge has been turned down by the Division
Bench. Though the petitioner-in-person sought to urge that the basis on
which the challenge to the said Rules has been turned down requires
reconsideration, we do not find any legal or justifiable reason to take a
different view of the matter. We are in respectful agreement of what has
been held by the Division Bench in Peoples Right Vigilance Organization
(NGO), Jalna and Ors. (supra).
11. The petitioner-in-person sought to urge that being a law graduate
and a former judicial officer, he ought not to have been directed to
approach the Committee constituted under Rule 2 of the said Rules. We
find that Rule 7 takes care of such contention inasmuch as a party-in-
person answering such description and desiring to appear in person can
always request the Court to exercise it's discretion and permit him / her to
appear in person so as to conduct the proceedings without adopting the
procedure prescribed by Rules 1 to 4 of the said Rules. It appears from the
petitioner's affidavit that he had indeed sought to appear in person before
the Division Bench of this Court on 21 st July 2016 and that he was
thereafter asked to appear before the Committee constituted under Rule 2.
This would thus indicate that the Division Bench was not inclined to
exercise discretion under Rule 7 in favour of the petitioner to enable him
to appear in person and conduct the proceedings. In such situation, there
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was no option left for the petitioner but to undergo the exercise
contemplated by Rules 1 to 4 of the said Rules.
. We also note an apprehension sought to be expressed by the
petitioner-in-person that having been once permitted to appear in person,
such litigant may not be required on each subsequent occasion to again
undertake the exercise contemplated by Rules 1 to 4 of the said Rules. In
our view, there cannot be any strait jacket formula for such situation. The
requirement of undertaking the exercise prescribed by Rules 1 to 4 in a
given situation could be either dispensed with or found necessary by the
concerned Court while exercising it's discretion under Rule 7 of the said
Rules. The position would depend on the facts of an individual case.
12. Thus, taking an overall view of the matter, we do not find that the
Notification dated 9th September 2015 deserves to be quashed on the
grounds urged by the petitioner-in-person. The writ petition therefore
fails. Rule stands discharged with no order as to costs.
[ JITENDRA JAIN, J. ] [ A.S. CHANDURKAR, J. ]
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