[Bombay high Court] Registrar of the Court cannot take the decision as to maintainability of the Petition.
Registrar of the Court cannot take the decision as to maintainability of the Petition.
It is a judicial function and can be decided by the Court.
Division bench of the Bombay High court passed the order.
M/S EAST & WEST DEVELOPERS, the sister concern of RNA builder filed an appeal challenging the order passed by Justice J.N. Patel in Contempt Petition No.(L) 174 of 2019 dated 28th August, 2018, where Justice G.S. Patel formulated a default provision in the contempt proceedings regarding the issue on rent with society members.
Based on the said order various further orders are passed by the Justice N.J. Jamdar. Said orders are challenged by the M/S East & West Developers on the ground that as per law laid down by the Constitution Bench and Full Bench of the Supreme Court in Sudhir Vasudeva (2014) 3 SCC 373 and reiterated in a recent judgment in K. Armugam Vs. Balkrishnan 2019 SCC OnLine SC 134, the Judge hearing the case of Contempt proceedings cannot go beyond the scope of the original order and therefore the order passed by Justice G. S. Patel in Contempt Petition No.(L) 174 of 2019 dated 28th August, 2018 and all the orders are vitiated and null and void and liable to be set aside. It was further contention of the Counsel for Appellant that, their client has spent around 143 Crore rupees on the project and his rights cannot be taken away without following the due procedure of law and following principles of natural justice where he has a fundamental right to be heard and the principles of audi alterim partem can not be by passed by any Court. In support of his contention he has relied upon the verious judgments of the Supreme Court.
The Registry took the objection that the Appellant should file seprate appeal for each order.
This issue came before the Division Bench of Justice S. J. Kathawalla and Justice Riyaz Chhagla. On 15th September by Adv. Nilesh Ojha, counsel for RNA builders pointed out to the Court that as per recent judgment of Supreme Court in the case of P. Surendran vs State By Inspector Of Police (2019) 9 SCC 154, had ruled that the act of numbering a petition is purely administrative. The objections taken by the High Court Registry on the aspect of maintainability requires judicial application of mind by utilizing appropriate judicial standard. Registry could not have exercised such judicial power to answer the maintainability of the petition, when the same was in the realm of the Court. The power of judicial function cannot be delegated to the Registry.
In the said judgment it is ruled by the Supreme Court that;
“A Constitution Bench of five judges in Jaswant Sugar Mills Ltd., Meerut vs. Lakshmichand and Ors., AIR 1963 SC 677, formulated the following criteria to ascertain whether a decision or an act is judicial function or not, in the following manner;
(1) it is in substance a determination upon investigation of a question by the application of objective standards to facts found in the light of preexisting legal rule;
(2) it declares rights or imposes upon parties obligations affecting their civil rights; and (3) that the investigation is subject to certain procedural attributes contemplating an opportunity of presenting its case to a party, ascertainment of facts by means of evidence if a dispute be on questions of fact, and if the dispute be on question of law on the presentation of legal argument, and a decision resulting in the disposal of the matter on findings based upon those questions of law and fact.
The act of numbering a petition is purely administrative. ”
The said submission is opposed by Adv. Karl Tamboly representing the respondent Azad Nagar co-op Society.
But the Division Bench accepted the submission of Appellant that said issue can be decided by the Court and not by the Registrar.
The order reads thus;
"1. The objection raised by the office that the Appellant ought to have filed independent Appeals with regard to each of the orders impugned in the above Appeal, shall be decided by this Court. As regards the other objections raised, the same shall be removed by the Advocate for the Appellant within a period of two weeks from today.
2. Stand over to 5th October, 2020. "
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