Vs. Government of India & Ors  Insc 252 (12 April 2004)
S.B. Sinha & S.H. Kapadia. S.B. Sinha, J :
appellant herein was respondent No. 8 in one of the public interest litigations
being No. 6240 of 1997 which was disposed of along with another public interest
litigation being No. 5717 of 1997 and Contempt Case No. 779 of 1997.
appellant herein has not questioned the correctness or otherwise of the
impugned judgment dated 6th July, 1998 passed by a Division Bench of the Andhra
Pradesh High Court in the aforementioned matters but only is concerned with
certain observations made therein as also imposition of a sum of Rs. 20,000/-
by way of costs. These two public interest litigations were filed successively
by one B. Kistaiah, said to be a former Member of Legislative Assembly and the
Writ Petition No. 6240 of 1997 by Digumarthi Premchand, said to be a
journalist. In the said purported public interest litigations alleged
malfunctioning of the Commissioner of Central Excise resulting in loss of
several crores of rupees as also purported dismantling of the Special
Investigating Team headed by the appellant herein were in question.
writ petitioners contended that the said Special Investigation Team was
dismantled by the Commissioner-I Central Excise & Customs, Hyderabad Commissionerate
only with a view to help the dishonest traders and to prevent the cases
relating to evasion of excise duty. The appellant was not initially a party
therein but despite the same an order of transfer passed against him and others
dated 10.3.1997 bearing Establishment Order (G.O.) No. 43/97 was questioned in
the said writ petition. The cause of action for filing writ petition No. 5717
of 1997 was also said to be issuance of the said order of transfer dated
10.3.1997. A Division Bench of the High Court by an order dated 21.03.1997
directed the appellant (although thence he was not a party) not to hand over
any record in any pending case which was or is under his investigation to
M.V.S. Chowdary till 26.3.1997. The respondents were also purported to be
relying on or on the basis of the additional affidavit directed by the High
Court to file their counter-affidavits and produce the records relating to
setting up of the Special Investigation Team and its disbanding. The writ
petitioner, however, instructed his counsel to withdraw the writ petition
conscience, however, does not permit me to proceed with the said writ petition.
I am also uncertain of the effect of the matter will have and I am constrained,
for my personal reasons, and for my personal safety to seek the permission of
the Hon'ble Court to withdraw the writ
petition." When the said matter was pending, another writ petition marked
as W.P. No. 6240 of 1997 came to be filed by Digumarthi Premchand wherein the
averments made, except for one paragraph were verbatim the same of those
contained in writ petition bearing No. 5717 of 1997. In the said writ petition
also the appellant herein was impleaded as a party and the main attack therein
was directed against the said proceedings dated 10.03.1997 transferring the
appears that the Director General, NACEN and Chief Commissioner, Hyderabad by an order dated 08.05.1997
directed that the appellant should be taken back on the rolls of Hyderabad Commissionerate
and furthermore should be handed over the cases for investigation. A further
direction was made to examine how his period of absence can be regularised. The
writ petitioner filed an application dated 22.5.1997 for implementation of the
said proceedings which was marked as WPMP (SR) No. 55758 of 1997.
enough, the said application was purported to have been directed to be placed
for House Motion before a Division Bench purported to be under the orders of
the Chief Justice of the Andhra Pradesh High Court which admittedly was found
to be wrong. The appellant herein filed two applications on the same day one,
to implead him as one of the respondents and the other to give effect to the
said proceedings dated 8.5.1997 issued by the Chief Commissioner, Hyderabad. Despite the fact that the Registry
of the High Court was not supposed to receive the said applications without the
order of the Hon'ble Chief Justice, the same was done on a wrong premise that a
direction in that behalf had been issued by the Chief Justice. Interestingly,
the writ petitioner informed the Registrar (Judicial) that he would not be
insisting for House Motion as his advocate would not be available but keeping
in view the purported order passed by the Chief Justice, a Bench was
constituted in relation whereto admittedly no direction had been issued by the
Chief Justice. It also stands admitted that even no direction had been issued
to number the said applications, whence the application filed by the appellants
were placed before the Bench.
Registry submitted several reports before the Court, on having been asked to do
so, which reveal as to how a fraud was practised upon the court presumably in
collusion with some officers of the Registry. A contempt proceeding was
initiated against Digumarthi Premchand relying or on the basis of the said
reports but as the writ petitioner had been evading service of notice, not only
non-bailable warrant was issued in absence of any correct address of writ
petitioner having been furnished; the CBI was also asked to cause to make a
detailed enquiry/investigation into the following issues:
whether there is any person by name Digumarthi Premchand, Journalist, r/o. Narayanaguda
and if such a person is available, cause his production before this Court on or
before 19-9- 1997,
there is no such person by name Digumarthi Premchand, the sixth respondent
shall investigate and find out as to under what circumstances this writ
petition came into existence and the person or persons responsible for filing
making an enquiry into the matter, a report was filed by the CBI on 19.9.1997
before the division bench of the High Court. The appellant herein thereafter
appeared before the Court on 17.10.1997. The CBI submitted a final report
stating that a chargesheet under Section 120-B read with Sections 199, 200,
201, 416, 465 and 471 of Indian Penal Code and Sections 109 thereof had been
filed by it against the writ petitioner, the appellant herein and one M. Kali Prasada
who is his close relative. The material portions of the said report read as
17-3-1997 Sri N.K. Prasada met one Sri B. Kistaiah
an Ex.MLA who had got close association with Sri B.P. Agarwal Textile Mill
owner of Shadnagar with whom the said Sri N.K. Prasada also had acquaintance.
On the same day Sri Kistaiah filed a WP No.5717 of 1997 alleging irregularities
in Customs and Central Excise, Hyderabad and
also filed several documents along with writ petition which were supplied by
contended with filing of the above writ petition Sri N.K. Prasada A2 also got
filed another WP No.6240 of 1997 through Sri S. Ramachandra Rao, senior
Advocate and Seshagiri Rao, Advocate.
the subject-matter of both the writ petitions are one and the same, the Hon'ble
High Court posted the matter for hearing before Hon'ble Justice V. Bhaskar Rao
and Hon'ble Justice Sri B. Sudarshan Reddy.
clerk of Sri Ramachander Rao informed that on 22-5- 1997 Sri N.K. Prasada came
to the office of Sri Ramachander Rao and asked him for the house motion
petition of D. Premchand and Sri Padmanabham showed him the bundle from which
Sri N.K. Prasada took out the petition informing him that he is taking the
house motion petition of D. Premchand.
N.K. Prasada, (A2) has obtained this writ petition back from the Registrar of
the High Court since some objections were raised by the Registrar and Sri N.K. Prasada
also signed in return register maintained by the Registrar office in token of
receipt of the petition back.
register as well as specimen signatures of Sri N.K. Prasada have been referred
to GEQD who opined that the signatures on the register pertains to Sri N.K. Prasada.
investigation disclosed that the origin of all Phonogram was from public
telephone booth bearing No. 243 980, located at Basheerbagh and other PCO
telephone No.332917 located at Erramanzil Colony.
disclosed that on the day of filing of WP No.6240 of 1997 i.e., 26-3-1997 Sri Kali Prasada was taken to the office of Sri S. Ramachander
Rao by Sri N.K. Pramda and Sri B.P. Agarwal.
also disclosed that on 26-
3-1997, Sri D. Premchand
was present at Srikakulam and he has not come to Hyderabad nor he signed the affidavit enclose with the WP No.6240 of
GEQD has opined that the signature on WP No.6240 of 1997 was not that of Sri D.
Premchand. But Sri D. Premchand with a fraudulent and dishonest intention filed
an affidavit before the Hon'ble High Court on 7-11-1997 stating that he himself has signed the affidavit enclosed
with the WP No.6240 of 1997 and that he himself filed the petition.
Ramachander Rao, Sr. Advocate and Sri Seshagiri Rao, Advocate who filed the WP
No.6240 of 1997 have also stated in their statements recorded under Section 164
Cr.PC before the II MM Hyderabad that the person Sri D. Premchand who had
surrendered before Hon'ble High Court on 19-9-1997 was not the person who came
along with Sri N.K. Prasada and who signed the WP No.6240 of 1997 on 26-3-1997.
filed along with WP No.5717 of 1997 of Sri B. Kistaiah, Ex.MLA, Shadnagar were
supplied by Sri N.K. Prasada has stated by Sri K.R. Prabhakar Rao, Advocate for
Sri B. Kistaiah, Sri B. Kistaiah also stated before the Hon'ble High Court that
Sri N.K. Prasada requested him not to withdraw the petition.
aforesaid acts all the accused entered into criminal conspiracy and
fraudulently filed WP No.6240 of 1997 and in which process A3 impersonated A1
under the active connivance of A2 and thereby played fraud on the higher
judiciary. A1 has falsely stated through an affidavit before the Hon'ble High
Court of A.P. on 7-11-1997 that he himself filed WP No.6240 of
all the three accused i.e., A1 to A3 committed offences punishable under Section
120-B read with 199, 200, 201, 419, 465 and 471 IPC and Section 109 IPC.
therefore prayed that the Hon'ble Court
may take cognizance of the case against the accused and they may be dealt with
according to law.
the charge-sheet." The CBI was also directed by the High Court by an order
dated 19.9.1997 to make investigation into the question as to:
whether the petitioner, himself, got the information required for the purpose
of filing this writ petition and if so, who are the persons from whom the
petitioner had gathered the information. It is also just and necessary to find
out as to
and on what basis the averments in the affidavit filed in support of the writ
petition are made and the persons responsible for making or engineering the
averments made in the affidavit."
direction was also issued to find out as to under what circumstances the writ
petitioner proposed to withdraw the writ petition as also who were the persons redsponsible
for getting the letter of withdrawal filed by the writ petitioner. The CBI in
its report inter alia opined that the appellant herein was the person working
behind the scene. Interestingly, during the said investigation the appellant
could not be traced out. The aforementioned B. Kistaiah (writ petitioner in
W.P. No.6240 of 1997) made a solemn statement before the High Court wherein
also he named the appellant herein as a person who was responsible for getting
the writ petition filed through the advocate although he did not know him
personally. He further alleged that the requisite documents for filing the writ
petition have been handed over to the learned Advocate by the appellant.
High Court upon analysis of the pleadings and other materials placed before it
analysis of the pleadings before us and various reports filed by the CBI and
the sworn statement of the petitioner in WP No.5717 of 1997 would lead to an irresistable
conclusion that both these writ petitions are engineered and brought into
existence by the 8th respondent herein with an oblique motive of avoiding an
order of simple transfer dated 8-5-1997. It is the 8th respondent who has acted
from behind the scene and had set up the petitioner to file the writ petition
making reckless and unfounded allegations against the respondents. All this has
been done only to avoid an order of simple transfer. To what extent the 8th
respondent can stoop down is amply demonstrated from the contents of his own
affidavit filed into this Court. In one of his counter- affidavits to the report
of the CBI dated 17-10-1997 the 8th respondent inter alia
states that "on the day Sri B.P. Agarwal introduced me to the advocate but
I had met Sri S. Ramachandra Rao later on my own to seek advice whether I
should file in CAT or in High Court. As per his directions, I had given him
relevant papers which he said he would examine and advise me accordingly.
However, without my knowledge or authorisation he used the documents to file a
Public Interest Litigation. I came to know much later that the Hon'ble High
Court has issued certain directions on the PIL filed by B. Kistaiah, At no
point of time did I influence or induce anyone to file a petition on my
behalf." It is further stated that "the role of Sri S. Ramachander Rao
as a senior Advocate looks very dubious in this context. This is apart from
misusing the documents given by me to him in good faith for filing my own
petition. This is a clear case of breach of client's confidentiality and
interest." It is now clear that it is the 8th respondent who made available
the entire material filed into Court as material papers in these writ
petitions. Obviously, the writ petition is drafted on the basis of the material
supplied by the 8th respondent.
would be totally altogether a different matter as to whether the affidavit is
signed by the petitioner or by somebody else at the instance of Respondent
No.8. But the feet remains that material has been admittedly made available by
the 8th respondent, undoubtedly he is the king pin in the whole drama and
operating from behind the scene." Before the High Court Shri E. Seshagiri Rao,
advocate who had filed the writ petition affirmed an affidavit wherefrom it
transpired that the writ petition had been filed from the Office of Shri S. Ramchander
Rao, a senior advocate purported to be on the instructions of one Shri B.P. Agarwal,
the appellant herein and some other persons.
High Court noticed gross abuse of the process of the Court in the manner of
filing the aforementioned two writ petitions said to be in the nature of public
interest litigations. The High Court also went into the merit of the matter and
arrived at a finding that the writ petitions were filed at the instance of the
appellant herein. The High Court while finding the said writ petitions to be
without any merit opined that no relief can be granted to the writ petitioner.
The High Court also expressed its unhappiness over the role of the lawyers. The
High Court although noticed that the writ petitioner in writ petition No. 5717
of 1997 appeared in person and wanted to withdraw the writ petition but did not
absolve him of his responsibility in the matter in filing the writ petition at
the instance of the appellant herein. However, it took a lenient view and
dismissed the writ petition without awarding any cost against him. The High
Court, however, administered severe warning to him to be careful in future and
not to play any game with judicial process.
as writ petition No. 6240 of 1997 is concerned, the High Court held:
far as WP No.6240 of 1997 is concerned, we have already observed that the petitioner,
as well as the 8th respondent are guilty of abuse of the judicial process in
the name of public interest litigation. They have put the device of public
interest litigation to naked abuse. The weapon invented by the Apex Court with
a noble cause intended to serve the deprived sections of the Society pressed
into operation for destructive purpose. The streams of justice are polluted by
under those circumstances, consider it appropriate to dismiss the writ petition
- Writ Petition No.6240 of 1997 with exemplary costs quantified at Rs.25,000/-(Rupees
twenty five thousand only); out of which a sum of Rs.5,000.00 (Rupees five
thousand only) shall be paid by the petitioner, Digumarthi Premchand and the
remaining sum of Rs.20,000/- (Rupees twenty thousand only) shall be paid by the
respondent No.8, N.K. Prasada. The amount shall be deposited by the petitioner
and the 8th respondent with A.P. State Legal Services Authority." In the
contempt proceedings the writ petitioner was found guilty and punishment till
the rising of the court was awarded to the writ petitioner. The High Court,
however, keeping in view the pendency of the criminal case observed:
we would like to make very clear that we have not expressed any opinion
whatsoever with regard to the merits of the prosecution and the charge-sheet
filed by the CBI against the petitioner as well as 8th respondent and one Kali Prasada.
The trial Court shall proceed with the trial uninfluenced by any of the
observations made by us in this order. We have not expressed any opinion about
any of the aspects and merits of the allegations levelled against the
petitioner and the 8th respondent. The observations, if any, made by this Court
while referring to the reports of the CBI and the charge-sheet are confined for
the purpose of disposal of this writ petitions and the contempt case. The trial
Court shall dispose of the criminal case uninfluenced by any observation
whatsoever made in this case." Contentions of Mr. Amarendra Sharan,
learned senior counsel appearing on behalf of the appellant are two-fold.
he drew our attention to a First Information Report purported to have been
lodged by him against one T.N. Rao, Dy. S.P. CBI Hyderabad and urged that as
the said officer had himself been facing a criminal charge of asking for bribe,
his report filed before the High Court should not have been relied upon. The
learned counsel would secondly urge that although the appellant was impleaded
as a party, no opportunity of hearing having been granted to him the impugned
judgment cannot be sustained.
Anoop G. Choudhary, learned senior counsel appearing on behalf of the
respondents, on the other hand, would submit that the High Court itself could
have been moved for expunction of the remarks by the appellant herein.
pointed out that the appellant took part in the CBI enquiry, filed an
application for reqularisation of leave and keeping in view the report
submitted by the Central Bureau of Investigation, his involvement in getting
the writ petition filed is apparent on the face of the record.
writ petitioner who had been arrayed as respondent No. 8 in the Special Leave
application has filed an affidavit. He in his affidavit does not deny or
dispute the findings of the High Court. He does not say that the writ petition
was not filed at the instance of the appellant herein.
not in dispute that although the appellant was not a party in the writ petition
the order of transfer passed against him dated 10.3.1997 was the subject matter
thereof and an interim order had been passed by the Division Bench of the High
Court. The fact that he derived benefit of the said interim order is not denied
or disputed. The fact that he filed two applications, one for impleading
himself as a party in the pending writ proceeding and another for an interim
order purported to be for implementing the order of the Chief Commissioner
dated 08.05.1997 also stands admitted.
recall that the original writ petitioner also filed a similar application. The
High Court arrived at its conclusion not only on the basis of the report of the
Central Bureau of Investigation which, inter alia, contains the statements of
the clerk of Shri S. Ramchandra Rao, Advocate and his involvement in filing the
application and taking the same back from the Registry which is borne out of
the return register maintained by the Registry but also the detailed reports
submitted by the Registrar (Judicial) before the High Court from time to time
as also other affidavits, sworn statements and other materials brought on
finding of the High Court is to the effect that the appellant herein was the
king pin of the entire episode and had engineered the entire game with a view
to getting his order of transfer stayed is prima facie in nature, we do not
find any reason to interfere therewith.
writ petition and the contempt proceedings pending before the High Court were
disposed of on the basis of the materials on record. The materials not only
included affidavits of the parties as also that of the appellant but also the
sworn statements of the writ petitioner and the Advocate appearing for the writ
petitioner. In view of the fact that even the learned advocate appearing on
behalf of the writ petitioner categorically stated that at the time of drawing
of the writ petition the appellant was present, no fault with the findings of
the High Court can be found out if reliance had been placed thereupon. The
appellant had intervened in the writ applications as far back as on 22.5.1997.
He, it will bear repetition to state, filed an application for grant of an
interim relief. The same was pending and, thus, there cannot be any doubt
whatsoever, having regard to the fact that the Central Bureau of Investigation
was making enquiry; the appellant herein must be held to have been aware
thereabout. His two applications were also pending and presumably pressed (as
there is nothing on record to show that at any point of time, he intended to
withdraw the same), and thus a presumption can be drawn to the effect that he/
his advocate had been keeping a watch over the entire proceeding. Despite the
same at no point of time the appellant wanted to cross-examine any witness. He
never brought the fact to the notice of the court that a criminal case had also
been filed against the Dy. S.P. of the C.B.I. allegedly for taking bribe. He
allowed the proceedings before the High Court to go on. He sat on the fence.
He, as has been noticed by the High Court, even could not be traced out for
he appeared to be on leave during the following period:
83 days EL from 3-4-1997 to 24-6-1997.
days EL from 26-6-1997 to 10-11-1997.
days EL from 11-11-1997 to 25-11-1997.
days Half-pay leave from 26-11-1997 to 29- 4-1998.
days extraordinary leave from 30-4-1998 to 31-5-1998."
noticed hereinbefore, filed application for regularisation of the said period
of leave pursuant to or in furtherance of the observations made by the Chief
Commissioner, Hyderabad in his order dated 08.05.1997.
principles of natural justice, it is well-settled, cannot be put into a
strait-jacket formula. Its application will depend upon the facts and
circumstances of each case.
also well-settled that if a party after having proper notice chose not to
appear, he a later stage cannot be permitted to say that he had not been given
a fair opportunity of hearing. The question had been considered by a Bench of
this Court in Sohan Lal Gupta (Dead) through LRs. SCC 492] of which two of us
(V.N. Khare, CJI and Sinha, J.) are parties wherein upon noticing a large
number of decisions it was held:
principles of natural justice, it is trite, cannot be put in a straitjacket
formula. In a given case the party should not only be required to show that he
did not have a proper notice resulting in violation of principles of natural
justice but also to show that he was seriously prejudiced thereby..." The
principles of natural justice, it is well-settled, must not be stretched too
event, it is not a case where this Court should exercise its discretion in favour
of the appellant. It is trite that in a given case, the Court may refuse to
exercise its discretionary jurisdiction under Article 136 of the Rajasthan and
Another [(2003) 6 SCC 545] and State of Punjab The scope of public interest
litigation has recently been noticed by this Court in Guruvayoor Devaswom
Managing Committee and Another vs. C.K. Rajan and others [(2003) 7 SCC 546] holding
functions are assigned to the State by the Legislature and not by the Court.
The Courts while exercising its jurisdiction ordinarily must remind itself
about the doctrine of separation of powers which, however, although does not mean
that the Court shall not step- in in any circumstance whatsoever but the Court
while exercising its power must also remind itself about the rule of
self-restraint. The Courts, as indicated hereinbefore, ordinarily is reluctant
to assume the functions of the statutory functionaries. It allows them to
perform their duties at the first instance.
court steps in by Mandamus when the State fails to perform its duty. It shall
also step in when the discretion is exercised but the same has not been done
legally and validly. It steps in by way of a judicial review over the orders
passed. Existence of alternative remedy albeit is no bar to exercise
jurisdiction under Article 226 of the Constitution of India but ordinarily it
will not do so unless it is found that an order has been passed wholly without
jurisdiction or contradictory to the constitutional or statutory provisions or
where an order has been passed without complying with the principles of natural
justice. (See Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and
Others (1998) 8 SCC 1).
trite that only because floodgates of cases will be opened, by itself may not
be no ground to close the doors of courts of justice. The doors of the courts
must be kept open but the Court cannot shut its eyes to the ground realities
while entertaining a public interest litigation.
of self-restraint, thus, should be adhered to, subject of course to, just
exceptions." (See also Maharashtra State Board of Kumarsheth etc., AIR
1984 SC 1543.) The said decision has been followed in Chairman & MD, BPL
Ltd. vs. S.P. Gururaja and Others [(2003) 8 SCC 567], wherein it was noticed :
Oliver in Constitutional Reform in the UK
under the heading 'The Courts and Theories of Democracy, Citizenship, and Good
Governance' at page 105 states:
this concept of democracy as rights-based with limited governmental power, and
in particular of the role of the courts in a democracy, carries high risks for
the judges - and for the public. Courts may interfere inadvisedly in public
administration. The case of Bromley London Borough Council v. Greater London
Council ( 1 AC 768, HL) is a classic example. The House of Lords quashed
the GLC cheap fares policy as being based on a misreading of the statutory provisions,
but were accused of themselves misunderstanding transport policy in so doing.
The courts are not experts in policy and public administration - hence Jowell's
point that the courts should not step beyond their institutional capacity
(Jowell,2000). Acceptance of this approach is reflected in the judgments of
Laws LJ in International Transport Roth GmbH Department ( EWCA Civ 158,
 3 WLR 344) and of Lord Nimmo Smith in Adams v. Lord Advocate (Court of
Session, Times, 8 August 2002) in which a distinction was drawn between areas
where the subject matter lies within the expertise of the courts (for instance,
criminal justice, including sentencing and detention of individuals) and those
which were more appropriate for decision by democratically elected and
accountable bodies. If the courts step outside the area of their institutional
competence, government may react by getting Parliament to legislate to oust the
jurisdiction of the courts altogether. Such a step would undermine the rule of
and public opinion may come to question the legitimacy of the judges exercising
judicial review against Ministers and thus undermine the authority of the
courts and the rule of law." Another [(2003) 2 SCC 673] it was observed:
expression 'public interest' or 'probity in governance', cannot be put in a
straitjacket. 'Public interest' takes into its fold several factors.
cannot be any hard and fast rule to determine what is public interest.
circumstances in each case would determine whether Government action was taken
is in public interest or was taken to uphold probity in governance.
role model for governance and decision taken thereof should manifest equity,
fair play and justice. The cardinal principle of governance in a civilized
society based on rule of law not only has to base on transparency but must
create an impression that the decision-making was motivated on the
consideration of probity. The Government has to rise above the nexus of vested
interests and nepotism and eschew window dressing. The act of governance has to
withstand the test of judiciousness and impartiality and avoid arbitrary or
capricious actions. Therefore, the principle of governance has to be tested on
the touchstone of justice, equity and fair play and if the decision is not
based on justice, equity and fair play and has taken into consideration other
matters, though on the face of it, the decision may look legitimate but as a
matter of fact, the reasons are not based on values but to achieve popular
accolade, that decision cannot be allowed to operate." We are pained to
see how the forum of public interest litigation is being abused. This Court
recently had also the occasion to notice the same. (See Ashok Kumar Pandey For
the reasons aforementioned, we do not find any merit in this appeal which is