Calcutta High Court
The Kolkata Municipal ... vs Ai-Sumama Agro Foods Pvt. Ltd. & ... on 17 December, 2021
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
(Original Side)
I.A No. G.A/1/2021
With
W.P.O/257/2020
In
A.P.O. No. 54 of 2021
The Kolkata Municipal Corporation & Ors.
Vs.
AI-Sumama Agro Foods Pvt. Ltd. & Ors.
Before: The Hon'ble Justice Arijit Banerjee
&
The Hon'ble Justice Kausik Chanda
For the Appellants : Mr. Alok Kumar Ghosh, Adv.
Mr. Gopal Chandra Das, Adv.
For the Respondents : Mr. Asad Alvi. Adv.
Heard On : 22.11.2021, 30.11.2021 & 06.12.2021
CAV On : 06.12.2021
Judgment On : 17.12.2021
Arijit Banerjee, J.:
1. By consent of the parties the appeal and the stay application were
taken up together for hearing.
2. The appeal is directed against a judgment and order dated March 11,
2021, whereby W.P.O 257 of 2020 was disposed of by a Learned Single
Judge.
3. The writ petitioners/respondents had participated in a tender floated
by the appellant Kolkata Municipal Corporation (for short 'KMC') for
Operation, Maintenance and Overall Management of KMC's newly
established modern Abattoir. They were unsuccessful. Their bid was rejected
on the ground of technical disqualification. However, the earnest money
deposit was not returned to them. Being aggrieved, they approached the
Learned Single Judge.
4. By the order impugned the Learned Judge directed KMC to refund the
earnest money deposited by the writ petitioners in terms of the "Request for
Proposal". It was further directed that "in default of refund of earnest money
within the date indicated above, interest at the rate of 6 per cent per annum
till payment of the said amount is to be made by respondent No. 2 to the
petitioner". Being aggrieved the KMC has come up in appeal.
5. Several grounds have been taken in the Memorandum of Appeal.
However, we have heard Learned Counsel for the parties only on one
ground, i.e., the Learned Single Judge did not have determination to hear
the writ petition on which the impugned order was passed. We consciously
deferred hearing the parties on the other points as we were of the view that
if the ground indicated above succeeds, it would not be necessary for us to
consider the other grounds of appeal.
6. Learned Senior Counsel representing the KMC submitted that on the
date the impugned order was passed, i.e., March 11, 2021, the Learned
Single Judge did not have determination to hear Corporation matters. That
determination was with another Learned Judge of this Court. In support of
his submission Learned Counsel drew our attention to the relevant Cause-
list. It was submitted that an order passed by a Learned Judge in a matter
which he did not have determination to hear, is a nullity.
7. Learned Advocate for the writ petitioners/respondents submitted that
the Learned Judge concerned had determination to hear tender matters on
the relevant date. KMC repeatedly stayed away from the Court. Hence, the
Learned Judge had to dispose of the matter ex parte. If it is the contention of
KMC that the Learned Judge lacked determination to hear the matter, it
should have appeared before the Learned Judge and made such submission.
An order passed by a Judge of this Court not having determination to hear
the matter in which the order is passed, may be, at the highest, an irregular
order but not a void order. The Learned Judge concerned had the
jurisdiction to pass the impugned order under Article 226 of the
Constitution of India.
8. In reply, Learned Advocate for the KMC submitted that since the
Learned Judge did not have determination to hear Corporation matters,
KMC's Learned Advocates were naturally not following the cause-list of that
Learned Judge. Hence, KMC could not be represented before the Learned
Judge on the date the impugned order was passed.
9. We have considered the rival contentions of the parties.
10. It is fairly well settled that a Learned Judge of a High Court derives
jurisdiction to hear a particular matter only upon such matter being
assigned or allotted to him/her. The Chief Justice is the Master of the
Roster who is constitutionally empowered to decide which Judge shall hear
which type of matters.
11. In the case of Sohan Lal Baid v. State of West Bengal & Ors., AIR
1990 CAL 168, a Division Bench of our Court, at paragraphs 18, 23, 24
and 28 of the reported judgment held, inter alia, as follows:-
"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 singly 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 cases
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
whereunder still continues to be there, as held in National Sewing
Thread Co. Ltd.'s case, but also inheres in the Chief Justice.
23. The foregoing review of the Constitutional and statutory
provisions and the case law on the subject leaves no room for doubt
or debate that once the Chief Justice has determined what Judges
of the Court are to sit alone or to constitute the several Division
Courts and has allocated the judicial business of the Court amongst
them, the power and jurisdiction to take cognizance of the respective
classes or categories of cases presented in a formal way for their
decision, according to such determination, is acquired. To put it
negatively, the power and jurisdiction to take cognizance of
and to hear specified categories or classes of cases and to
adjudicate and exercise any judicial power in respect of them
is derived only from the determination made by the Chief
Justice in exercise of his constitutional, statutory and
inherent powers and from no other source and no case which
is not covered by such determination can be entertained,
dealt with or decided by the Judges sitting singly or in
Division Courts till such determination remains operative. . . .
24. . . . .The cardinal position cannot be overlooked that before
jurisdiction over the subject matter is exercised, the case must be
legally brought before the concerned Court for the hearing and
determination and that a judgment pronounced by Court without
investment of jurisdiction is void.
28. For the foregoing reasons, the order under appeal being without
jurisdiction is and declared to be void and as having no effect in the
eye of law." (Emphasis is ours).
12. In State of Maharashtra v. Narayan Shamrao Puranik, AIR 1982
SC 1198, the Supreme Court observed that the Chief Justice is the Master
of the Roster. He has full power, authority and jurisdiction in the matter of
allocation of business of the High Court and the same inheres in him in the
very nature of things. In the said case, the Supreme Court quoted with
approval the following passage from a Full Bench decision of the Madras
High Court in Mayavaram Financial Corporation Ltd. v. The Registrar
of Chits, 1991(2) L.W. 80:-
"The Hon'ble the Chief Justice has the inherent power to allocate the
judicial business of the High Court including who of the Judges
should sit alone and who should constitute the Bench of two or more
Judges. No litigant shall, upon such constitution of a Bench or
allotment of a case to a particular Judge of the Court will have a
right to question the jurisdiction of the Judges or the Judges hearing
the case. No person can claim as a matter of right that his petition
be heard by a single Judge or a Division Bench or a particular single
Judge or a particular Division Bench. No Judge or a Bench of
Judges will assume jurisdiction unless the case is allotted to
him or them under the orders of the Hon'ble the Chief
Justice." (Emphasis is ours)
13. In Inder Mani v. Matheshwari Prasad, (1996) 6 SCC 587, the Apex
Court observed as follows:-
"It is the prerogative of the Chief Justice to constitute benches of his
High Court and to allocate work to such benches. Judicial discipline
requires that the puisne Judges of the High Court comply with
directions given in this regard by their Chief Justice. In fact it is their
duty to do so. Individual puisne Judges cannot pick and choose the
matters they will hear or decide nor can they decide whether to sit
singly or in a Division Bench."
14. In State of Rajasthan v. Prakash Chand & Ors. (1998) 1 SCC 1,
the Supreme Court held, inter alia, that no Judge or a Bench of Judges can
assume jurisdiction in a case pending in the High Court unless the case is
allotted to him or them by the Chief Justice. Strict adherence of this
procedure is essential for maintaining judicial discipline and proper
functioning of the Court. In the said decision, in conclusion, the Supreme
Court observed, inter alia, as follows:-
"1. That the administrative control of the High Court vests in the
Chief Justice alone. On the judicial side, however, he is only the first
amongst the equals.
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. That the puisne Judges can only do that work as is
allotted to them by the Chief Justice or under his directions.
4. That till any determination made by the Chief Justice lasts, no
Judge who is to sit singly can sit in a Division Bench and no
Division Bench can be split up by the Judges constituting the bench
themselves and one or both the Judges constituting such bench sit
singly and take up any other kind of judicial business not
otherwise assigned to them by or under the directions of the
Chief Justice.
.............
6. That the puisne Judges cannot "pick and choose" any case
pending in the High Court and assign the same to himself or
themselves for disposal without appropriate orders of the Chief
Justice.
7. That no Judge or Judges can give directions to the Registry for
listing any case before him or them which runs counter to the
directions given by the Chief Justice.
. . . . . . . . . . . . ."
15. Finally, in that case, the Supreme Court held the order impugned
before it as being without jurisdiction.
16. In the case of Smt. Maya Dixit & Ors. v. State of U.P., (2010) SCC
OnLine ALL 1740, a Full Bench of the Allahabad High Court held, inter
alia, as follows:-
"7. The issue, whether a Bench allotted a particular assignment can
hear matters allotted to another Bench, in our opinion, need not be
gone into at length, as the same has been extensively covered by a
judgment of a learned Division Bench of this Court in Prof. Y.C.
Simhadri, Vice Chancellor, B.H.U. v. Deen Bandhu Pathak,
Student. We may gainfully reproduce paragraphs 16, 17 and 18
which read as under:
16. Thus, the following principles emerge from the foregoing
discussions:
1. The administrative control of the High Court vests in the
Chief Justice alone and it is his prerogative to distribute
business of the High Court both judicial and administrative.
2. The Chief Justice alone has the right and power to decide
how the Benches of the High Court are to be constituted:
which Judge is to sit alone and which cases he can and is
required to hear as also which Judges shall constitute a
Division Bench and what work those Benches shall do.
3. The puisne Judges can only do that work which is
allotted to them by the Chief Justice or under his
directions. No Judge or a Bench of Judges can assume
jurisdiction in a case pending in the High Court unless
the case is allotted to him or them by the Chief
Justice.
4. Any order which a Bench or a Single Judge may choose to
make a case that is not placed before them or him by the
Chief Justice or in accordance with his direction is an order
without jurisdiction and void.
. . . . . . . . . . . . ." (Emphasis is ours)
17. From the aforesaid discussion, it is clear that the Chief Justice of a
High Court alone has the power and authority to allocate particular types of
cases to particular Judges. He decides the class of cases that a particular
Judge can hear and decide. A Judge can take up only such matters as have
been allocated to him by the Chief Justice and no other matters. The
jurisdiction of a puisne Judge to hear a particular case stems from the
allotment of such case to that Judge by the Chief Justice. That Judge will
have no jurisdiction to hear any other matter. If a Judge hears a matter
which is not within his determination and passes an order therein, such
order will be void for want of jurisdiction.
18. In the present case, on the day the writ petition was disposed of by
the Learned Single Judge, His Lordship did not have determination to take
up writ applications against K.M.C. We are sure that this was not pointed
out to the Learned Judge. Since we are of the view that an order passed in a
matter which a Learned Judge did not have determination to hear, is a
nullity for inherent lack of jurisdiction, we are constrained to set aside the
order under appeal on that ground alone. We have not gone into the merits
of the writ petitioner's case. We remand the matter for being heard by the
Learned Single Judge who presently has determination to hear the writ
petition. Nothing in this order shall have any bearing on the merits of the
case.
19. The appeal and the connected application are accordingly disposed of,
without however any order as to costs.
20. Urgent certified website copy of this judgment, if applied for, be
supplied to the parties upon compliance of necessary formalities.
(Kausik Chanda, J.) (Arijit Banerjee, J.)
