Gujarat High Court CJ questions practice of seeking endorsement by Chief Justice to transfer part-heard cases

Gujarat High Court Chief Justice Sunita Agarwal on Tuesday expressed her reservations about the practice of seeking the Chief Justice's endorsement before part-heard matters are transferred from one court's roster (list of cases allocated to a bench) to another bench..Chief Justice Agarwal opined that once a roster is finalised, the Chief Justice is denuded of any power to list cases before particular benches or transfer part-heard matters between benches. ."There is no administrative power with the Chief Justice to place a matter before a particular bench ... For placing a matter before a particular bench, there has to be a judicial order (by the bench before which the case is listed). The Chief Justice cannot pass order to place matter as a part heard matter before any other bench," she said. .The observation was made after senior advocate Yatin Oza mentioned a matter that was heard at length by Justice CM Roy who also reserved orders, but which was now before another bench after the roster of the High Court underwent a periodic change. .Oza informed Chief Justice Agarwal that, in line with consistent practice, the Chief Justice's endorsement was required before this part-heard case could be sent back to Justice Roy's court. This was part of the Chief Justice's powers as the master of the roster, he said. Chief Justice Agarwal, however, questioned if there was any specific rule that called for such an endorsement by the Chief Justice. Once a matter is listed as per the roster, it is up to the bench hearing the matter to pass a judicial order transferring the case to any other judge(s) if needed, she said. She expressed reservations over whether the Chief Justice is required to interfere in such matters. ."Once the Chief Justice decides the roster, then things go out of the hands of the Chief Justice even. Then the roster is to be given priority. If roster is to be taken care of and there is some part heard matter, then the judge sitting in the roster can pass a judicial order which has to prevail," she said. .Chief Justice Agarwal added that she would discuss the matter with the full court."I will discuss this issue with the full court. But I have my reservation about it. According to me Chief Justice is denuded of power to take away one matter from one roster and give it to another bench on administrative side once the Chief Justice decides the roster. Otherwise, as a Chief Justice, I can take matters from any bench and decide myself. I cannot do this," she said. .The issue came into focus this morning before the bench of Chief Justice Agarwal and Justice Aniruddha Mayee..Chief Justice Agarwal has now questioned whether there is any rule empowering the Chief Justice to intervene in matters where part-heard cases are to be transferred between benches. "This practice is not correct. Many practices were not within the rules. There was a practice of issuing rule which was beyond the rules. Rules do not permit the Chief Justice to have any kind of power to fix or place any matter as a part heard matter before that bench," she said. .Gujarat High Court CJ Sunita Agarwal says will end practice of adjourning bail applications for many weeks after issuing 'rule nisi'.She also opined that one of two courses of action should ideally be followed when part-heard cases have to be transferred between benches.Either the judge who heard the matter earlier at length should record that the case should be posted before him again. In the alternative, the new judge before whom matter was posted next could pass a judicial order transferring the part-heard case back to the earlier judge, she suggested. "Then papers are not to be placed before the Chief Justice. The judicial order - Chief Justice is bound by the judicial order ... It is not about personal choice, it is about rules ... I, sitting on the administrative side, don't know the reasons. Reasons are reflected in the order sheet and judicial order can be passed," she added. Referring to the predicament of Oza's client - who the senior lawyer said has been waiting for years for a resolution of the dispute - Chief Justice Agarwal assured that she would speak with Justice Roy as well."I will discuss this issue with the full bench as well ... I am not disputing the practice ... But I have some reservations, and I can have reservations. So I have to discuss in the full court to find out the final solution," she further said. .Corrigendum: An earlier version of this article contained inaccuracies about the context in which the Chief Justice had made her remarks. These errors have been rectified and is regretted. .Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.