Order Passed By Bench Not Conferred With Determination By Roster Is A Nullity: Calcutta High Court

The Calcutta High Court has held that orders passed by a bench which has not been conferred with that particular determination by virtue of the roster decided by the Chief Justice would lack jurisdiction and be a nullity in the eyes of the law.

In answering a reference, the full bench of Justices Debangsu Basak, Shampa Sarkar and Hiranmay Bhattacharya held:

The reference is answered by holding that, an order passed by a Bench of the High Court not been conferred with the determination by virtue of the roster fixed by the Hon'ble The Chief Justice, is vitiated by inherent lack of jurisdiction so as to render the order so passed a nullity in the eye of law and void ab initio.

At the hearing of the reference, Advocate for the appearing parties submitted that the question framed in the reference is covered by the ratio of 2025 case of Garden Reach Shipbuilders and Engineers Limited. vs. Grse Limited Workmens Union and Others.

Appellants in FMAT 296 of 2024 claimed that they are the owners of a particular immovable property by virtue of a registered deed of conveyance dated June 23, 2023. The appellants have claimed to be members of the tenants' association of the building in which the immovable property is situated.

The appellants, being concerned with the maintenance of the building, had participated in a meeting of the association when, the appellants came to learn about certain facts. Appellants had learnt about Title Suit no. 2602 of 2023 in which an interim order was passed. Appellant had filed a Civil Suit, being Title Suit no. 1037 of 2024.

In such a Civil Suit, appellants had filed an application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908. The Judge had declined to grant ad interim relief to the appellants. Appellants had thereafter preferred an appeal from the refusal to grant ad interim relief, being FMAT 269 of 2024, in which the order of reference has been made.

By the order dated November 4, 2024, passed in FMAT 269 of 2024, the Division Bench, admitted the appeal under Order XLI Rule 11 of the Code of Civil Procedure, 1908 and directed that the same be heard on the question of law framed.

The private respondent in the appeal had applied for vacating of the order dated November 4, 2024 on the ground that when such order admitting the appeal was passed, the Division Bench did not have the requisite determination to consider an application under Order XLI Rule 11 of the Code of Civil Procedure, 1908 to admit the appeal.

The Division Bench making the reference, has considered the issue as to whether the earlier order passed by the Bench on November 4, 2024 recording that the appeal be deemed to be admitted under Order XLI Rule 11 of the Code of Civil Procedure, 1908 and should be heard on the question framed, is a nullity and ought to be recalled on such ground.

After noticing the same, the Division Bench held that, since the lack of jurisdiction was not inherent or implicit, the order dated November 4, 2024 cannot be labelled as void ab initio or a nullity in the eye of the law due to lack of jurisdiction, but at best irregular.

It noticed the distinction between jurisdiction and determination, and the contrary view of another Division Bench rendered in The Kolkata Municipal Corporation and Ors. vs. AI-Sumama Agro Foods Private. Limited and Others.

Thus, it refused to recall its earlier order dated November 4, 2024 despite noticing the fact that on such date, it did not have the requisite determination to consider an appeal filed after 2020.

In considering the case laws placed by the counsel, the bench stated that these authorities, both by the High Court and by the Supreme Court have held that, a Single Bench or a Division Bench derives jurisdiction to deal with and decide the cases or class of cases assigned to them by virtue of determination made by the The Chief Justice.

It was stated that the Division Bench in FMAT 269 of 2024 has noticedthat the distinction between the expression “jurisdiction” and “determination” and held that the latter being only a technical and administrative allocation, whereas the former hits at the root of the power exercised by the Court. It has noticed that jurisdiction is not conferred by the roster alone but is vested in a Court in terms of a statute and Letters Patent of a Chartered High Court.

While the High Court has the jurisdiction to admit and dispose of a matter, individual Benches either sitting Singly or in a Division Bench or otherwise, can assume jurisdiction over the subject matter only in accordance with the allocation of business by the Hon'ble The Chief Justice on the principles of Master of Roster. High Court's jurisdiction to decide the lis may not be questioned. However, exercise of jurisdiction in an individual case outside determination can be questioned in the event, such Bench assumes jurisdiction beyond the allocation of business by the Hon'ble The Chief Justice, the bench held.

Thus, it answered the reference accordingly.

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