TaxTMI 
TaxTMI 
1977 (5) TMI 88
X X X X Extracts X X X X
X X X X Extracts X X X X
..... the petition was to be allowed inasmuch as the voters list and the whole programme of the election were invalid and consequently the election which had taken place was also to be quashed. (iii) Accordingly, they directed the case to be placed before the Chief Justice for nominating a Bench under Rule 11 of Chapter I of the High Court Rules. (iv) The Chief Justice nominated Lodha, J. as the third Judge. (v) Lodha, J., in his order, directed as follows:-- "In view of my foregoing conclusions, I partly allow this petition and quash the Electoral Roll (Annexure 2) and direct that a fresh Electoral Roll be prepared in accordance with law on the lines indicated above and election for constituting the market committee be held thereafter in accordance with law. The election held during the pendency of this petition is quashed. There will be no order as to costs. In other words, he agreed with Bhachawat J. (vi) The Registry then placed the matter before the Chief justice who constituted a Division Bench of Vyas,....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... or to some other Division Bench for disposal according to the method provided by Clause 26 of the Letters Patent? It appears that for two peculiarities, the Division Bench (Vyas, J. and Bhachawat, J.) thought that these questions should be decided by a larger Bench, (i) Vyas, J. did not hear this case earlier. It was Raina, J. who heard it with Bhachawat, J. (ii) the operative part of Lodha, J.'s opinion is couched in a language expressive of the final decision of the writ petition. Rule 11 of Chapter I of the High Court Rules reads thus:-- "11. When in any appeal or civil matter heard by a Bench of two Judges, the Judges composing the Bench differ on a point of Law and state the point on which they differ, the proceeding shall be placed before the Chief Justice for the purpose of nominating one or more of the other Judges to deal with the matter." It was under this rule that, when Raina, J. and Bhachawat, J. differed, the proceedings were placed before the Chief Justice who nominated Lodha, J. to deal with the matter. The expression 'civil matter' is comprehensive enough to include a writ petition under Article 226 of the Constitution. The ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat the majority opinion is? Clause 26 does not specify which Judge or Bench would decide the point. It merely leaves the matter with the mandate that the point shall be decided according to the opinion of the majority of the Judges who heard the case including those who first heard it." It is undoubted position that the point has to be decided at this stage (i.e. after the third Judge has recorded his opinion) as a matter of formal expression of the decision. There is no question of fresh application of the mind on the merits of the point, on which the opinion of the third Judge has been recorded. If two Judges had first heard the matter, the point will be decided by a Division Bench of two Judges after receipt of the opinion of the third Judge. It is true that the word 'decided' ordinarily envisages an application of the mind but such application of the mind must be restricted to two things only: (i) to find out from the three opinions what the majority opinion is and to 'decide' the point according to the majority opinion; and (ii) to decide what relief flows from such decision, which relief the Division Bench shall toe bound to give to t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ivision Bench. Clause 26 of the Letters Patent itself confines it to the 'point' on which there has been difference of opinion between the two Judges. It follows that if the referee Judge decides any point on which the' Judges of the Division Bench did not differ, or if referee Judge decides the whole case, that part of his opinion, or order or judgment (howsoever the opinion may be styled) must be read as opinion on the point or points on which the Judges of the Division Bench were divided in opinion. The rest is to be ignored, for want of jurisdiction, by application of the principle of Kiran Singh v. Chaman Paswan AIR 1954 SC 340. See Amalgamated Coalfields Ltd. v. State of M. P. AIR 1967 MP 56 : 1966 Jab LJ 884 : 1966 MP LJ 842 where it is observed as follows (at p. 74 of AIR) :-- "The very language of Clause 26 makes it undoubted that the Judge to whom the matter is referred in consequence of the difference of opinion between the Judges constituting the Division Bench, shall not hear the case upon any other point, because his opinion on such other points will not itself be the decision of the Court, his opinion on the point or points on which ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ubtful whether even the referee Judge has jurisdiction to decide the point of difference. The clause says that the appeal shall be heard upon that point by the referee Bench and the point shall be decided according to the opinion. It does not specifically lay down that the point shall be decided by the referee Judge, as the Legislature could very easily have stated, if it had been the intention to transfer jurisdiction for deciding the point, from the Division Bench seized of the case, to the referee Judge. It appears to me, there-tore, that the jurisdiction for the decision not only of the appeal as a whole but also of the point of difference, remains with the referring Bench; and all that the clause lays down is a method by which in the case of a difference of opinion, the difficulty is to be resolved. On this view, it would be the duty of the referee Judge to express an opinion on the point or points of difference and to return the case with his opinion to the Division Bench seized of the case which must pronounce the final judgment, according to the method provided by Clause 26. If in the interval a change has occurred in the constitution of the Division Bench in question, it w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ollows the opinion of the third Judge. This is because of the clear language of Section 392 of the Code of Criminal Procedure, which adopts the language of Section 429 Cr. P. C., 1898 See Hethubha v. State of Gujarat, AIR 1970 SC 1266 which was followed in Union of India v. 6. N. Ananthapadmanabhaiah, AIR 1971 SC 1836. To the present case, the provisions of the Code of Criminal Procedure have no application. Therefore, the dictum of the two cases last mentioned is not apposite. The present case is governed by Rule 11 of Chap. I of the High Court Rules and Clause 26 of the Letters Patent. Suppose in a civil appeal between A as the appellant, and B and C as respondents, each one of the three parties claims title to the land and the two Judges of the Division Bench of the High Court differ in their opinion, one of them holding that A is the owner, while the other holding that B is the owner. In such a case, if the third Judge is of the opinion that neither A nor B is the owner, but C is the owner, it will have to be said that the opinion of the third is without jurisdiction. He has to confine his opinion to the difference of opinion whether A is the owner or B. We would now a....