Rajendra Singh Tomar (Since Dead) Through Lrs Dharmendra Singh Tomar And Another vs State Of Madhya Pradesh And Another

Rajeev Kumar Shrivastava,J

This writ appeal under Section 2(1) of Madhya Pradesh Uchcha Nyayalaya Ko Appeal Adhiniyam, 2005, has been filed against the order dated

6.2.2020 passed in Writ Petition No. 3444/2010, whereby the writ petition filed by the appellant/petitioner Late Rajendra Singh Tomar through his legal

representatives has been dismissed.

The sole argument of learned counsel for the appellants is that Writ Petition No. 3444/2010 was heard and decided by learned Single Bench vide

impugned order dated 6.2.2020, whereas it should have been heard and decided by Division Bench as the present matter pertains to Madhya Pradesh

Lok Parisar (Bedakhali) Adhiniyam, 1974 and according to the Roster at the relevant time, the Division Bench alone was had jurisdiction to hear and

decide the aforesaid matters. Hence, the impugned order passed by learned Single Judge suffers from lack of jurisdiction and deserves to be set aside.

As the only point involved in the present matter is with regard to jurisdiction of the learned Single Judge, therefore, it is not necessary to narrate the

facts of the case.

The Full Bench of Allahabad High Court in the case of Smt. Chawali (Habc 594/2012 Now PIL) vs. State of UP (Misc. Bench No. 9470 of 2014,

decided on 16.1.2015), has held as under :-

“The learned single judge, not having the authority to entertain and neither having the roster, was inherently incompetent to pass the orders on the petition. It is

here that the principle ""Form becomes substance"" is attracted. The court of the learned single judge for a division bench matter was improperly constituted and thus

suffered from an inherent incompetence to hear and decide the case. This was an error arising out of absence of jurisdiction and not any error in the orders passed

within the jurisdiction of the learned single judge. The dispute is not of an error in the application of law or in the orders passed, but of the jurisdiction of the learned

single judge to enter upon adjudication in the matter.

There is a higher forum of a division bench created by the 1952 Rules to hear and decide a state detention habeas corpus petition. The learned single judge presides

over a court that only enjoys the jurisdiction of a private detention habeas corpus matter. Thus the forum of a larger bench of two judges as against a learned single

judge is not a minor difference and leads to a major defect of want of corum that alters jurisdiction altogether if the assigned function of a division bench is casually

allowed to be taken over by a learned single judge. The division bench has exclusive authority and not partial jurisdiction in state detention matters. The exercise of

authority in excess by the learned single judge is an outcome of lack of jurisdiction.â€​

In the present appeal, learned counsel for the appellants has filed copy of the Notification dated 31.1.2020 (Annexure A/3) regarding Roster/

Assignment for the Bench at Gwalior from 3. 02.2020 to 07.02.2020. As per aforesaid notification, under the heading “ DIVISION BENCH-I,I'

at serial No.5 it is mentioned as under :-

“5. All cases pertaining to Public Premises (Eviction of Unauthorised Occupants) Act, 1971, M.P.Government Premises (Eviction) Act, 1952 and Lok Parisar

(Bedakhali) Adhiniyam, 1974 for admission / orders / final hearing.â€​

That means, the matters pertaining to Public Premises (Eviction of Unauthorised Occupants) Act, 1971, M.P. Government Premises (Eviction) Act,

1952 and Lok Parisar (Bedakhali) Adhiniyam, 1974 were required to be heard by Division Bench of this Court.

Therefore, in the light of above, as the Writ Petition No. 3444/2010 had been heard and decided by learned Single Judge, which as per Roster

(Annexure A/3) was to be heard by Division Bench, therefore, the impugned order dated 6.2.2020 is a nullity. Consequently, the order dated 6.2.2020

is hereby set aside and Writ Petition No. 3444/2010 is restored to its original number.

Registry is hereby directed to list Writ Petition No.3444/2010 before the appropriate Bench according to prevailing roster.