R. D. Agarwala & ANR Vs. Union of
India & ANR  INSC 31 (23 February 1970)
23/02/1970 HIDAYATULLAH, M. (CJ)
HIDAYATULLAH, M. (CJ) SHAH, J.C.
CITATION: 1971 AIR 299 1970 SCR (3) 778 1970
SCC (1) 708
F 1971 SC1594 (2)
Practice and Procedure-Single Judge deciding
important questions and suo motu granting certificate under Art.
132(1) of the Constitution Propriety.
Writ petitions involving important questions
of law came up before a single Judge of the High Court. He was requested by the
parties to refer the cases to a Divisional Bench.
Instead of doing so he disposed them of
himself, and suo motu granted a certificate under Art. 132(1) of the
constitution for appeal to this court.
HELD : The action of the Judge though
technically permissible was improper, because, either the Judge should' have
referred the cases to a Bench, or allowed the parties to pursue their right of
appeal to a Bench against the decision of the single Judge, without short
circuiting the right by passing on the cases to this Court. [779 E-G.]
CIVIL APPELLATE JURISDICTION : Civil Appeals
Nos. 2634 of 1969 and 63 of 1970.
Appeals from the judgment and order dated
December 5, 1969 of the Delhi High Court in Civil Writ Nos. 220 and 725 of
C.A. No, 2634 of 1969.
Sarjoo Prasad, Prem Nath Chadda, K. L. Mehta,
S. K. Mehta,K. R. Nagaraja, M. G. Gupta and Sona Bhatiani, for the appellants.
R. N. Sachthey, for respondent No.1.
M. C. Setalvad, Govind Das and B. P. Singh,
for intervener No. 1.
M. C. Chagla, K. K. Jain, Bishamber Lal and
H. K. Puri, for intervener no. 2.
C.A. No. 63 of 1970.
R.V.S. Mani, for the appellants.
S. P. Nayar, for respondent No. 1.
S. K. Mehta, K. L. Mehta, K. R. Nagaraja and
Sona Bhatiani,for respondents Nos. 3 and 4.
779 The Order of the Court was delivered by
Hidayatullah, C.J. This order will govern the disposal of Civil Appeals Nos.
2634 of 1969 and 63 of 1970. These two appeals arise out of two writ petitions
filed in the High Court of Delhi which were disposed of by a common judgment
delivered by a learned single Judge on December 5, 1969. The appeals have been
brought on certificate granted suo motu by the learned single Judge under Art.
132(1) of the Constitution of India. While granting the certificate, the
learned single Judge observed that at an earlier stage in the case, request was
made to him to refer these two petitions for decision to a Bench, because
important questions were involved in them. At that time, the learned Judge felt
that since there was a Division Bench decision of the Rajasthan High Court in
Jaipur Udyog Ltd. v. Union of India and another(') there was no need to refer
the matter to a larger Bench. The learned Judge goes on to say in the order
granting certificate that at the time of the hearing, he found that several
questions arose before him which were not covered by the Rajasthan decision. He
probably felt that as the points which he had to decide were not considered by
this Court in any earlier decision and as he had decided the case sitting
singly, he should grant certificate suo motu for appeal to this Court.
In our opinion, and we say it respectfully,
the learned Judge was in error in not making a reference to a Bench when he
found that important questions of law were arising before him. Even if he did
not make any reference, he should have allowed the parties to take an appeal in
the High Court itself under the provisions pertaining to appeals against
decisions of a single Judge. The practice of deciding the case sitting singly
and giving a certificate under Art.
132(1) for appeal to this Court although
technically correct, is an improper practice. If is the right of the party to
file an appeal in the High Court itself against the decision of the single
Judge and that right should not be short-circuited by passing on the case to
the Supreme Court for decision. We think we should not endorse this practice
which would create a bad precedent in India. We accordingly cancel the
certificate and leave the parties free to file an appeal in the High Court, it
they so desire. There will be no order as to cost s. V.P.S. Certificate
(1) A.I.R. 1969. Raj. 281.