A two-judge bench of the Supreme Court led by Justice B.R. Gavai has questioned the propriety of another bench led by senior judge Justice M.R. Shah of referring a matter directly to it in breach of the established practice of the Chief Justice of India alone being empowered to allocate cases.

While expressing its disapproval, the bench of Justice Gavai and Justice Vikram Nath directed the registry to place the matter before Chief Justice of India D.Y. Chandrachud for obtaining “appropriate orders”.

The bench led by Justice Gavai maintains that the bench headed by Justice Shah cannot directly refer a matter to it for consideration and it has to be routed only through the CJI who is the master of roster having the sole authority to constitute benches and allocate cases.

Justice Shah is the fourth senior-most judge of the Supreme Court and a member of the collegium while Justice Gavai is the eighth senior-most judge in terms of the hierarchy.

However, Justice Gavai is slated to take over as the CJI on May 14, 2025, a post that he will hold till November 23, 2025. Justice Shah is set to retire on May 15 this year.

Justice Gavai, sitting in a bench with Justice Nath, was miffed about Justice Shah’s bench referring the matter related to a civil appeal by Orris Infrastructure Private Limited to it merely because Justice Gavai had once heard the matter.

When the matter came up for hearing, the bench of Justice Gavai and Justice Nath issued the following order on Monday night.

The official copy of the order came into the public domain on Tuesday.

“It is a normal practice of this court that the matter follows a judge who is part of the bench which has passed an effective order. In the present proceedings, the only effective order that has been passed is on September 27, 2021, of issuance of notice.

“The said order has been passed by the bench consisting of Hon’ble Mr Justice A.M. Khanwilkar (Retired) and Hon’ble Mr Justice C.T. Ravikumar. After the retirement of Hon’ble Mr Justice A. M. Khanwilkar, the matter followed the bench in which Hon’ble Mr Justice C.T. Ravikumar was one of the members. As such, the matter was listed before the Bench presided by one of us (Hon’ble Mr Justice B. R.Gavai) on September 14, 2022 as Hon’ble Mr Justice C.T. Ravikumar was part of that bench. No effective order was passed on the said date. When the matter was listed before the bench presided by Hon’ble Mr Justice M.R. Shah sitting with Hon’ble Mr Justice C.T. Ravikumar on February 27, 2023, the bench passed the following order: ‘Let the present application be placed before a bench presided over by Justice B.R. Gavai, at the earliest,’” the bench led by Justice Gavai noted.

It added: “Ordinarily, the matter(s) pertaining to placing the matter(s) before the benches are to be passed by Hon’ble the Chief Justice of India. If the particular bench in a particular situation finds that the matter be placed before another bench, the bench is required to direct the matter to be placed before the Hon’ble the Chief Justice of India for obtaining appropriate orders. As already stated hereinabove, since an effective order has been passed by the bench of which Hon’ble Mr Justice C.T. Ravikumar is a member, the matter should have followed the bench of which he is a member. In that view, we find it appropriate to direct the registry to place the matter before the Hon’ble the Chief Justice of India for obtaining appropriate orders.”

On Tuesday, senior advocate Mukul Rohatgi, appearing for the parties to the dispute, mentioned the order passed by Justice Gavai and requested CJI Chandrachud to constitute an appropriate bench to deal with the issue. The CJI assured that he would look into the issue.