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The Supreme Court has issued notice to the Bombay High Court and the Maharashtra government in a case challenging the Bombay HC’s decision to transfer a case from the Aurangabad Bench to the principle Bench.
And the subject matter of case before the Supreme Court is none other than the establishment of a National Law University at Aurangabad.
The appeal has been filed by a lawyers association, Lawyers’ Forum for Litigating Public and General Utility, Aurangabad through its president SB Talekar.
The association has challenged the judgment of December 11, 2014 passed by the Bombay High Court upholding the order of High Court’s Chief Justice directing transfer of matters, wherein High Court itself is a party.
The matter was heard by Vikramajit Sen and Shiva Kirti Signh JJ. Senior Advocate Shekhar Naphade along with Advocates Ajay Majithia, Vipin Nair and Atul Dakh appeared for the lawyers association.
The origins of this dispute can be traced back to 2007 when the then CM of Maharashtra decided to establish an NLU at Aurangabad. However, in 2011, the State Minister for Education forwarded a proposal to the Central government to establish the NLU at Nagpur. The Petitioner then filed a writ petition before the Aurangabad Bench of the Bombay High Court seeking implementation of the earlier decision to establish the NLU at Aurangabad.
In response, the CM and the Minister of Higher and Technical Education filed affidavits confirming the decision to establish an NLU at Aurangabad, and also said that a Bill for the same would be introduced in the Budget session of 2012.
They also said that they would take the necessary steps to start the NLU at Aurangabad from the academic year 2012-13. Subsequently, the Petitioner filed a contempt petition alleging that the Respondents failed to comply with their undertaking given in the affidavits.
However, in an interesting move, the High Court transferred both the writ petition and the contempt petition from the Aurangabad Bench to its principal Bench at Bombay. The Petitioner then filed three petitions – two of them challenging the administrative decision of the Chief Justice to transfer the cases to the principal Bench and the other challenging the Constitutionality of the proviso to Rule 2 of the Bombay High Court (Appellate side) Rules, 1960 (Rules).
The challenge was mainly on the ground that the power of Chief Justice to transfer the cases from Benches to principal Seat has to be balanced against the Fundamental Right of access to justice guaranteed under Article 21 as well as equality and non-arbitrary treatment under Article 14, both being principles of basic structure of the Constitution.
The High Court allowed the petition challenging the Rules but rejected the other two thereby upholding the decision of the High Court transferring the writ petition and the contempt petition to the principal Bench.
Subsequently, the petitioner had approached the Supreme Court in February 2015 challenging the said decision of the High Court. The Supreme Court had, however, refused to entertain the case then.
In this present appeal, the petitioner/ appellant has contended that the Division Bench of the High Court confused the power of the CJ to frame the roster with the power to transfer cases – while the former is absolute the latter needs to be balanced against the Fundamental Rights of the litigants.
After hearing the matter for considerable time on October 27, the court proceeded to issue notice to the High Court and the State.