Case ID: 5277

Judgment:
N: Criminal Appeal No. 516 of 1986 From the Judgment and Order dated 13.6.1986 of the Bombay High Court in Crl. A.No.90 of 1983. M.C. Bhandare and Miss C.K. Sucharita for the Appellants. A.S. Bhasme and A.M. Khamwilka for the Respondent. The Judgment of the Court was delivered by THAKKAR	 J. 'Right '	 or 'wrong '	 'guilty ' or 'not guilty '	 is not the question. Whether the learned Single Judge had the 'right ' to hear and decide the appeal and hold that the appellants were guility whilst setting aside their acquittal by the Judgment under appeal 1 is the question which has surfaced in the context of a judgment rendered by a learned Single Judge which according to the relevant rules of the High Court was required to be heard and decided by a Division Bench. The State of Maharashtra (respondent herein) preferred an appeal to the High Court of Bombay in order to challenge the order of acquittal rendered by the lower Court in favour of the present appellants. The acquittal was in respect of an offence under Section 7(1) read with Sections 16 and 17 of the Prevention of Food Adulteration _________________________ 1. Criminal Appeal No. 90 of 1983 decided by the High Court of Bombay (Aurangabad Bench) on June 13	 1986 resulting in the present appeal by special leave. The offence was punishable with a sentence of imprisonment exceeding two years.2 The appeal was	 therefore	 required to be heard by a Division Bench of the High Court and not by a learned Single Judge. Such is the problem that has arisen in the context of Rule 1 read with Rule 2 II(e) of the Bombay High Court Appellate Side Rules	 1960.3 What then is the consequence? Is the order of conviction and sentence recorded by the learned Single Judge who allowed the appeal merely irregular or void? When a matter required to be decided by a Division Bench of the High Court is decided by a learned Single Judge	 the judgment would be a nullity	 the matter having been heard by a Court which had no competence to hear the matter	 it being a matter of total lack of juris _______________________ of the : 16. PENALTIES: "Subject to the provisions. . he shall	 in addition to the penalty to which he may be liable under the provisions of Section 6	 be punish able with imprisonment for a term which shall not be less than six months but which may extend to three years	 and with fine which shall not be less than one thousand rupees:. . . . " 3. Rule 1: "The Civil and Criminal jurisdiction of the Court	 on the Appellate Side	 shall	 except in cases where it is otherwise provided for by these rules	 be exercised by Division Bench consisting of two or more Judges. " Rule 2 II(e): "Save as otherwise expressly provided by these 2 rules	 a Single Judge may dispose of the following matters: II "Appeals against convictions in which only a sentence of fine has been awarded or in which the sentence of imprisonment awarded does not exceed five years with or without fine	 appeals against acquittals wherein the offence with which the accused was charged is one punishable on conviction with a sentence of fine only or with a sentence of imprisonment not exceeding two years or with such imprisonment and fine	 and appeals under Section 377 of the Code of Criminal Procedure	 revision applications and Court notices for enhancement of sentence for offences punishable on conviction with sentence of imprisonment not exceeding two years or with such imprisonment and fine. (e) Applications for leave to appeal under Section 378(4) of the Code of Criminal Procedure against acquittals wherein the offence with which the accused was charged is one punishable on conviction with a sentence of fine only or with a sentence of imprisonment not exceeding two years or with such imprisonment and fine." 1007 diction. The accused was entitled to be heard by at least two learned Judges constituting a Division Bench and had a right to claim a verdict as regards his guilt or innocence at the hands of the two learned Judges. This right cannot be taken away except by amending the rules. So long as the rules are in operation it would be arbitrary and discriminatory to deny him this right regardless of whether it is done by reason of negligence or otherwise. Deliberately	 it cannot be done. Negligence can neither be invoked as an alibi	 nor can cure the infirmity or illegality	 so as to rob the accused of his right under the rules. What can be done only by atleast two learned Judges cannot be done by one learned Judge. Even if the decision is right on merits	 it is by a forum which is lacking in competence with regard to the subject matter. Even a 'right ' decision by a 'wrong ' forum is no decision. It is non existent in the eye of law. And hence a nullity. The Judgment under appeal is therefore no judgment in the eye of law. This Court in 1982(3) S.C.R. page 81 (State of Madhya Pradesh vs Dewadas & Ors.) has taken a view which reinforces our view. We	 therefore	 allow the appeal	 set aside the order passed by the learned Single Judge	 and send the matter back to the High Court for being placed before a Division Bench of the High Court	 which will afford reasonable opportunity of hearing to both the sides and dispose it of in accordance with law	 expeditiously. We wish to add that the Registry of the High Court was expected to have realized the true position and ought not to have created a situation which resulted in waste of court time	 once for hearing the appeal	 and next time	 to consider the effect of the rules. No Court can afford this luxury with the mountain of arrears which every Court is carrying these days. M.L.A. Appeal Allowed.

Summary:
The appeal of the State against the order of acquittal of the appellants of an offence under section 7(1) read with sections 16 and 17 of the 	 punishable with a sentence of imprisonment exceeding two years	 was heard and decided by a Single Judge	 though under Rule 1 read with Rule 2 H (e) of the Bombay High Court Appellate Side Rules 1960 such an appeal was required to be heard by a Division Bench. The Single Judge allowed the appeal	 held the appellants guilty and set aside the order of acquittal. Allowing the appeal of the accused appellants	 on the question "whether the decision of a Single Judge in a matter required to be decided by a Division Bench was a nullity	 ^ HELD: 1.1 When a matter required to be decided by a Division Bench of the High Court is decided by a Single Judge, the judgment would be a nullity, the matter having been heard by a Court which had no competence to hear the matter, it being a matter of total lack of jurisdiction. [1006C D] 1.2 In the instant case, the accused appellants were entitled to be heard under Rule 1 read with Rule 2 II(e) of the Bombay High Court Appellate Side Rules 1960, by at least two Judges constituting a Division Bench and had a right to claim a verdict as regards their guilt or innocence at the hands of two Judges. This right cannot be taken away except by amending the rules. So long as, the rules are in operation it 1005 would be arbitrary and discriminatory to deny them this right regardless of whether it is done by reason of negligence or otherwise. Negligence can neither be invoked as an alibi nor can cure the infirmity or illegality, so as to rob the accused of his right under the rules. What can be done only by at least two Judges cannot be done by one Judge. [1007A C] 2. Even a 'right ' decision by a 'wrong ' forum is no decision. It is non existent in the eye of law. And hence a nullity. The impugned judgment is no judgment in the eye of law. It is set aside and appeal remanded to High Court for hearing by a Division Bench. [1007C D] State of Madhya Pradesh vs Dewadas & Ors. , [1982] 3 S.C.R. page 81 relied upon. 
1011	By a notification dated November 2, 1864, a piece of land forming part of the Panchannagram Estate which was permanently settled under Regulation 1 of 1793, was acquired by the Government of Bengal at the instance of the justices of the Peace for the Town of Calcutta, which was a corporation established under the provisions of the Calcutta Municipal Act, 1863, and the justices were required to pay the compensation payable to the proprietor of the Estate. After the acquisition, the proprietor of the Estate was granted abatement of land revenue assessed on the Estate to the extent of Rs. 386 7 1, being the proportionate land revenue on the land acquired. On October 27, i865, the Government called upon the justices to pay a sum of Rs. 7,728 13 8, which represented the amount capitalised at 20 years ' purchase of land revenue attributed to the area acquired. On December 5, i870, the Secretary of State executed in favour of the justices of the Peace a conveyance of the land acquired, which stated, inter alia, that it was ever free and clear and for ever discharged from all Government land revenue whatever or any payment or charge in the nature thereof to the end and intent that the said land may be used for a public purpose	 namely	 for the conservancy of the town." On January 23	 1880	 a lease of the land was granted by the Justices to the predecessors in title of the appellant	 under which the lessee had the right to carry on cultivation with the aid of sewage. Before the income tax authorities the appellant claimed that the agricultural income derived by him from the land was not liable to income tax	 but the claim was rejected on the ground that on the payment of a lump sum in 1865 the liability to pay land revenue was redeemed and no land revenue was demanded thereafter; consequently	 the income derived from the land was not agricultural income within the meaning of section 2(1) of the Indian Income tax Act	 1922	 and was not	 therefore	 exempt from tax. The appellant 's contention was that the redemption only saved the justices from liability for payment but did not affect the assessability of the land to revenue under Regulation 1 of 1793. 599 Held	 that by the down payment of a lump sum in 1865 the entire land revenue to be recovered from the land was redeemed and the land became free from land revenue assessment in perpetuity	 as completely as if there was no assessment. Thereafter	 the land could not be said to be assessed to land revenue within the meaning of section 2(1) of the Indian Income tax Act	 1922	 and	 consequently	 the income derived therefrom could not be considered to be agricultural income under that section. The Collector of Bombay vs Nusserwanji Rattanji Mistri and others; 	 	 distinguished.