- (1.) It appears that the maintainability of this bunch of writ petitions under Article 226 of the Constitution of India was doubted by one of the Hon'ble Judges constituting the bench. Consequently the arguments were heard by the bench on the aforesaid point. Hon'ble R. K. Mahajan, J. by his order dated 19-12-96 dismissed all the writ petitions. The penultimate paragraph of the order reads as under- "We are of the considered view that this Court under Article 226 of the Constitution of India cannot convert itself into a Civil Court for determining the issues. The truth has to be sifted by Court of fact and i.e. Civil Court and not by the High Court. The plea that the amount cannot be recovered as arrears of land revenue has no relevance at all and if the petitioners want to contest this point, we are of the view that they should deposit the amount under protest citation and cannot contest the case. Therefore, aforesaid writ petitions are not maintainable."Hon'ble Palok Basu, J., on the other hand, after noticing the order of Hon'ble R. K. Mahajan, J., has observed as under :- "Hon'ble R. K. Mahajan, J. has written one judgment for the petitions serialled 1 to 6 and another for serial No. 7. So far as this Court is concerned, separate judgment does not appear necessary at this stage in all the petitions for the reasons mentioned below."After the aforesaid observations, Hon'ble Palok Basu, J. has noticed the questions raised in each of the writ petitions separately and has issued notice to opposite parties to show cause why the petitions be not admitted/allowed fixing the date and the parties counsel appearing for the parties were given time to file counter-affidavit and rejoinder-affidavit. The learned Judge also granted interim relief staying the recovery proceedings on certain conditions. The order of Hon'ble Palok Basu, J. is also of the same date i.e. 19/12/1996. Hon'ble Palok Basu, J. on the same day then passed the following order :- "In view of the difference of opinion, the papers of these seven cases he laid before Hon'ble the Chief Justice for nominating another third Hon'ble Judge."This order has not been signed by Hon'ble R. K. Mahajan, J. The order bears only signature of Hon'ble Palok Basu, J. Hon'ble the Chief Justice by order dated 2/01/1997 nominated Hon'ble Mr. Justice B. M. Lal (as his Lordship then was) for his opinion. It appears that Hon'ble B. M. Lal, J. could not give his opinion, then Hon'ble Mr. Justice Om Prakash was nominated by Hon'ble the Chief Justice on 5-8-97. However, Hon'ble Om Prakash as he then was) could also not give his opinion, then by order dated 16-2-98 Hon'ble Chief Justice nominated this Court for giving opinion. This is how this matter has come before me.
(2.) Before proceeding to consider the merits of the questions involved for giving opinion, in the facts and circumstances narrated above, it has become necessary to consider whether the case has been properly referred for opinion of third Judge of this Court in terms of Ch. VIII, R. 3 of the Rules of the Court, 1952 here-in-after referred to as 'Rules'. . . R. 3 of Ch. 8 reads as under :- "3. Procedure when Judges are divided in opinion-When a case (to which the provisions of the Code of Criminal Procedure do not apply), is heard by a Division Court composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority, if there shall be a majority. Should the Judges be equally divided they may state the point upon which they differ and each Judge shall record his opinion thereon. The case shall then be heard upon that point by one or more of the other Judges as may be nominated by the Chief Justice and the point decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it."1. In the present case, the points, upon which the Hon'ble Judges constituting the bench had divided opinion have not been formulated.2. Only one Hon'ble Judge has given his final opinion dismissing the writ petitions whereas another Hon'ble Judge has issued notices to the opposite parties to appear and to show cause why the petitions be not admitted/allowed and had granted time to parties to file counter affidavit and rejoinder affidavit and has also granted interim relief. The Hon'ble Judge while doing so has specifically observed that so far as this Court is concerned separate judgment does not appear necessary at this stage in all the writ petitions/meaning thereby that no final opinion upon the point/points of difference has been recorded.
(3.) The order referring the matter for opinion of third judge has not been signed by both the Hon'ble Judges. Though learned counsel for the parties have not addressed this Court on question as to whether reference to third Judge is in terms of R. 3 of Ch. VIII of the Rules, however, on noticing the aforesaid facts it became necessary for this Court to consider the propriety as to whether it will be proper and possible to give opinion in the facts and circumstances narrated above. A Full Bench of this Court in case of M/s. Shriram Industrial Enterprises Ltd. v. Union of India reported in AIR 1996 Allahabad 135 had occasion to consider the provisions of Chapter VIII, R. 3 of the Rules in detail. In paragraph 87 of the judgment after noticing various authorities on the point, the Full Bench has held as under :- "There can be no doubt that the proper course for the Judges who have dissented in their respective opinions while hearing a writ petition is not to pass final order either allowing or dismissing the same but to state their point of difference after expressing their opinions. However, it will still be open to them to state the point upon which they have differed even if they have passed final orders. If the point of difference is not stated, it will be for the third Judge (or Judges) to whom the case is referred to ascertain the same and to give his (or their) opinion thereon."In Union of India v. Joginder Singh Bhasin, reported in (1996) 3 All WC 1504 : (1996 All LJ 1855), a subsequent Full Bench of this Court has taken the view that as no separate point of law was referred by the Judges of the Bench, having difference of opinion, the reference was incompetent. But the view expressed thereon was in the context of S. 98 of CPC as the reference had arisen from a First From Order and the same is not applicable to the present case.3. In view of the aforesaid pronouncement of the legal position by the full bench in case of M/s. Shriram Industrial Enterprises Ltd. (AIR 1996 All 135) (supra), there remains no doubt that though Hon'ble Judges have failed to state the point/points upon which they have differed, the third Judge to whom the case is referred may formulate the point for giving opinion.;