CWP/2255/2017
2021 Latest Caselaw 1012 HP

CWP No. 2254 of 2017 with CWP

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Nos. 2255 and 2256 of 2017.

05.02.2021 Present: Mr. Juvraj Bindra, Advocate, for the petitioner(s) in all the petitions.

Mr. Ajay Vaidya, Sr. Addl. A.G. with Mr. R. N. Sharma, Advocate, for the respondents-State.

(Through Video Conferencing)

These writ petitions relating to taxation matters have

been placed for orders before a Division Bench of this Court

during vacations ostensibly because of interpretation being

given by the registry to Chapter 2 Rule 1 of the High Court of

Himachal Pradesh (Appellate Side) Rules, 1997 (for short , "the

Rules) as amended vide notification published in Himachal

Pradesh Gazette (Extra), 29/31.3.2003, relevant portion whereof

reads as under:-

(xii) All writ petitions filed under Article 226 or 227 of the Constitution of India except the following:-

(a) Writ petitions relating to taxation matters.

(b) Writ petitions which are in the nature of public interest litigation.

(c) Such writ petitions where the judgment of tribunals constituted under Articles 323-A or 323-B of the constitution of India are under challenge.

(d) Such writ petitions which by law or by a judgment of a Court are to be heard by a Bench of two or more Judges.

(e) Writ petitions in the exercise of extraordinary Criminal jurisdiction under Articles 226 or 227 of the constitution, including writ petitions in the nature of Habeas corpus.

(f) Such writ petitions were the vires of statute is under challenge.

Explanation-In cases covered by clause (f) above, the writ petition shall be heard by the Division Bench only if at the time of admission the Division Bench specifically and

explicitly forms an opinion that the vires of the statute

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being under challenge, the case should be heard by a

Division Bench. In the absence of such an opinion, the case shall be heard by a Single bench.

Provided that all the writ petitions, which even though

under this clause are to be heard and disposed of by a Single bench, shall first be listed for admission before a Division Bench and only if and after the Division Bench admits for hearing these would be listed for hearing and disposal before a Single bench.

(3) Rule 3 of Chpater 2 shall be deleted. (4) The existing proviso in Rule 4 of Chapter 2 shall be substituted for the following-

Provided that it shall be open to the Chief Justice to direct,

by a general or special order that notwithstanding

anything to the contrary contained in this Chapter or anywhere else in these rules, any matter or case or class or classes of cases shall be heard and disposed of by a Single bench or a Bench of two or more Judges.

(b) an appeal under Section 378 of the code from an order of acquittal in respect of offences punishable with imprisonment for 10 years or more;

(c) a case in which notice has been issued to a convicted

person who has been sentenced to imprisonment for a term of ten years or more to show cause why the sentence

should not be enhanced;

(d) a case in which notices has been issued to a convicted person requiring him to show cause why his

conviction should not be altered to one of any offence punishable only with death or imprisonment for life;

(e) an appeal by the accused against the conviction where the imprisonment awarded is 10 years or more; Provided that a Judge may, if he thinks fit, refer any matter mentioned in any of the clauses of this rule on any question arising therein to a Division Bench, with the approval of the Chief Justice.

What the registry appears to have ignored or failed to

take into consideration is that listing of the cases during vacations

is not governed by Rule 1, but is governed by Rule 2, which reads

as under:-

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2. Except in a case which the law requires to be heard by a bench of two or more judges, a Single Judge whilst acting in the long vacation as a Vacation Judge/s, may exercise, the original and appellate jurisdiction vested in

the Court:-

(i) in any criminal case other than one mentioned in exceptions (a), (b), (c) and (d) of clause (xi) of Rule 1;

(ii) in any civil matter;

(iii) in any matter connected with, relating to or arising out of a writ petition under article 226 of the Constitution for the Preliminary hearing or the admission of such a

petition; and

(iv) in any miscellaneous business, which in his opinion requires immediate attention.

Meaning thereby, that except in a case, which the

law requires to be heard by a Bench of two or more Judges like

LPA, OSA, appeals arising out of family courts etc., the Single

Judge whilst acting in the long vacations as a Vacation Judge is

not only fully competent, but the registry as a matter of course is

required to place all the matters in the original and appellate

jurisdiction, as contemplated by Rule 2 of the Rules, before the

learned Vacation Judge.

The registry cannot even fall back on Rule 3 of the

Rules, which applies only when the Bench is transacting the

business in a ordinary course and not in long vacations, which as

observed above, is governed by Rule 2 (supra).

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CMP No. 12242 of 2020 in CWP No. 2254 of 2017 CMP No. 12362 of 2020 in CWP No. 2255 of 2017 CMP No. 12364 of 2020 in CWP No. 2256 of 2017

Rejoinder, as prayed for, be filed within two weeks. List

before Regular Bench on 22.02.2021.

                                            (Tarlok Singh Chauhan)
                   r                        Vacation Judge

                                          (Vivek Singh Thakur)
        Feb. 5, 2021                       Vacation Judge
        (sanjeev)









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