Reference to larger Bench: Right of Reference – Chief Justice in his administrative capacity cannot constitute a larger bench for the purpose of deciding a pure question of law: Gujarat High Court Rules, 1993.

A
preliminary objection as to the maintainability of certain References
at the instance of the then Chief Justice of the Court was raised.

According
to the learned Counsel, a reference to a Larger Bench can be initiated
only at the instance of a Judge sitting singly or the Judges of a
Division Bench or even the Judges of a Larger Bench, provided the said
Court while dealing with a judicial matter proposes to disagree with the
view earlier taken by any other Bench of this Court on the self same
point. According to the learned Counsel, in these cases, the
subject-matter of dispute is the proposition of law laid down by a
Division Bench of this Court consisting of Justice Shethna and Justice
Patel and, thus, unless another Judge of this Court sitting singly or
another Division Bench, in judicial side, disagrees with the above view,
there is no scope of referring the matter to the Chief Justice for
constitution of a Larger Bench. The decision given by the said Division
Bench while laying down the proposition of law has not been appealed
against by the aggrieved party and has attained finality and the said
decision is binding upon a Division Bench or a learned Single Judge of
this Court as a precedent, while deciding any subsequent judicial
matter. In such circumstances, the Chief Justice of this Court, sitting
in administrative capacity, is not authorised by law to make a Reference
to a Larger Bench for the purpose of deciding the correctness of the
said decision of the Division Bench. In other words, according to the
learned Counsel, the initiation of Reference is not permissible under
law, unless there exists a pending judicial matter where the Judges of
the Bench or a learned Single Judge has referred the matter on judicial
side before the Chief Justice. The learned Counsel, therefore, prayed
for dismissal of these References as not maintainable.

The
Hon’ble Court referred to Rules 5 and 6 of the Gujarat High Court Rules,
1993, and observed that Rule 5 authorises either a learned Single Judge
or a Division Bench to refer the matter pending before them or any
question arising in such matter to a Division Bench of two-Judges or a
larger Bench respectively. On such Reference being made, it is the duty
of the Chief Justice to constitute either a Division Bench or a larger
bench for the decision on the question referred or for decision of the
matter referred.

Rule 6 of the Gujarat High Court Rules, on the
other hand, authorises the Chief Justice of the High Court to direct
either by a special or a general order that any matter or class of
matters should be placed before a Division Bench or a Special Bench of
two or more Judges.

Thus, Rule 6 of the Rules of 1993 merely
authorises the Chief Justice to place any pending matter or any type of
pending matters to a Division Bench or a Larger Bench notwithstanding
the fact that according to the Rules of 1993, those matters are required
to be decided by any learned Single Judge or a Division Bench fixed by
the Chief Justice in exercise of his power of fixation of roster. The
aforesaid Rule also authorises the Chief Justice to place the matter,
which is otherwise required to be heard by a Division Bench, for hearing
before a Larger Bench.

In the matter of References, the source
of Reference must be a judicial order passed by either a learned Single
Judge or any Bench while deciding a judicial matter. The Chief Justice,
in his administrative capacity, cannot constitute a Larger Bench for the
purpose of deciding a pure question of law simply because the Chief
Justice is of the view that such question, notwithstanding a decision of
a Division Bench of this Court in one way or other, is required to be
heard by a Larger Bench. Even if on any important question, there is no
decision of this Court, such fact cannot enable the learned Chief
Justice to constitute a Larger Bench suo motu in exercise of
administrative power.

The Court also considered the inherent power of the Chief Justice as the “muster of roster”.

A
right of Reference, like the one of appeal, review or revision, is a
substantive right and is a creature of statute and should be exercised
strictly in the manner as provided for in the statute which creates such
right.

Thus, it was held that there is no scope of referring
any question at the instance of the Chief Justice in his administrative
capacity to a Larger Bench which is not preceded by a Reference at the
instance of a Court sitting in judicial capacity and relating to any
matter pending in such Court.