JUDGMENT
1. By an order dated 29th June, 2000, all these appeals, along with the writ application filed by one Shri Tapan Kumar Dey [W.P. 7155(W) of 2000], were directed to be heard together. Accordingly, all these matters were taken up for consideration.
2. At the very outset, however, Mr. P.N. Chatterjee, learned Advocate, appearing for the respondent No. 8, took a preliminary objection that notwithstanding the order passed on 29th June, 2000, the writ petition of Shri Tapan Kumar Dey could not be heard along with the appeals in view of the Division Bench decision of this Court in the case of Ram Nath Santra and Ors., v. State of West Bengal & Ors., reported in 2001(1) CHN, page 649.
3. Mr. Chatterjee submitted that in Ram Nath Santra’s case the Division Bench had held that a writ application under Article 226 of the Constitution of India was invariably to be heard by a single Judge at the first instance and by consent the parties could not confer upon the Division Bench jurisdiction which it did not otherwise possess, to dispose of a writ application as a Court of first instance. Mr. Chatterjee urged that in view of the said decision the writ petition was required to be heard by the learned single Judge even though the facts involved therein may be the same as those in the three appeals.
4. Mr. Chatterjee also referred to the provisions of Rule 26 of the Rules framed by this Court in respect of applications under Article 226 of the Constitution, which, inter alia, makes provision for a Rule issued by a learned single Judge on such an application to be made returnable before a Division Bench or during hearing of the Rule the learned single Judge could refer the same to a Division Bench for hearing. Mr. Chatterjee submitted that the said Rule was probably not placed before the Division Bench which heard ‘the appeal of Ram Nath Santra & Ors. However, according to Mr. Chatterjee, having regard to the decision of the Hon’ble Supreme Court in the case of Dr. Vijay Laxmi Sadho v. Jagdish, , wherein the procedure to be adopted in case of difference in view between two co-ordinate Benches of a High Court was considered and it was held that if a Bench of co-ordinate jurisdiction disagreed with another Bench of co-ordinate jurisdiction whether on the basis of “different arguments” or otherwise on a question of law. the matter was required to be referred to a larger Bench for resolution of the issue rather than leave two conflicting judgments to operate and create confusion.
5. Mr. Chatterjee submitted that in case this Bench was not in agreement with the views expressed in Ram Nath Santra’s case the proper course of action would be to refer the question involved to a larger Bench instead of describing the earlier decision as per incurium.
6. Mr. T.K. Sarkar, who appeared for the appellant, contended that the preliminary objection taken by Mr. Chatterjee was not sustainable because the directions given for hearing of the writ petition along with the appeals was prior in point of time and was in consonance with established practice supported by the Rules framed by this Court in respect of applications under Article 226 of the Constitution.
7. Mr. Ranajit Kumar Mukherjee, appearing for the respondent No. 9 supported the submissions made by Mr. Sarkar and added that in various matters even the Hon’ble Supreme Court had directed writ petitions pending before a learned single Judge to be heard by a Division Bench. Mr. Mukherjee urged that it could not, therefore, be said that writ petitions were invariably required to be heard by a learned single Judge at the first instance. Mr. Mukherjee urged that Rules relating to writ petitions did not impose any bar on a Division Bench to hear a writ application where an appeal was being heard on the self-same issue.
8. We have given our anxious consideration to the question raised by Mr. Chatterjee in the light of the decision of the Division Bench in Ram Nath Santra’s case. It appears to us that the Rules relating to the writ petitions under Article 226 of the Constitution of India had not been brought to the notice of the Division Bench when Ram Nath Santra’s case was being heard. No doubt the writ Court derives its jurisdiction from the Constitution, but for the sake of administrative convenience such jurisdiction is circumscribed by the Rules framed by the various High Courts in that regard. While writ applications under Article 226 of the Constitution are initially moved and heard by a learned single Bench, subject to the appellate jurisdiction of the Division Bench. it does not follow that the writ petition is invariably required to be heard by a learned single Judge at the first instance.
9. Rule 26 of the Rules relating to matters under Article 226 of the Constitution itself indicates that a Rule issued by a learned single Judge may in appropriate cases be made returnable before a Division Bench or during the course of hearing the Rule may be referred by the learned single Judge to the Division Bench for hearing. The above Rule is sufficient to indicate that a writ petition may be heard by a Division Bench even at the first instance.
1O, The present case is not one where there is a divergence of views on the law of procedure based on identical materials placed before the Division Bench in Ram Nath Santra’s case and before this Bench. Since no reference has been made in the decision in Ram Nath Santra’s case to Rule 26 of the writ Rules, it may be presumed that the same had not been noticed by the said Bench Accordingly, in our view, ,the decision of the Hon’ble Supreme Court in Dr. Vijay Laxmi Sadho’s case (supra) cannot have application to the present case, particularly when the writ Rules provides for a writ application to be heard by a Division Bench as a Court of first instance. With due respect, the decision rendered ‘In Ram Nath Santra’s case is per incurium since it did not take into consideration the writ Rules which governs the procedural aspect of applications filed under Article 226 of the Constitution. This is not case of different arguments or difference on a question of law, but a provision of the writ Rules not having been brought to the notice of the Court.
We are not, therefore, inclined to accept Mr. Chatterjee’s preliminary objection and the same is accordingly rejected.
Let the appeals and the writ application of Shri Tapan Kumar Dey be listed for hearing on Thursday.
11. Appeal allowed