Lal Vs. Jindal Strips Ltd.  INSC 417 (8 August 1994)
S. (J) Mohan, S. (J) Venkatachalliah, M.N.(Cj)
1994 SCC (6) 19 JT 1994 (5) 254 1994 SCALE (3)703
Judgment of the Court was delivered by MOHAN, J.- Leave granted.
appellant is the Chief Minister of Haryana. The first respondent filed a writ
petition CWP No. 1898 of 1992 challenging the assessment order passed by the
Deputy Excise and Taxation Commissioner-cum-assessing authority, Hissar, Haryana
confirming a demand for sales tax of Rs 2,04,13,895.
writ petitions have been filed against separate assessment orders by the first
respondent for a total amount of payment aggregating to a liability of Rs 20 crores.
In these writ petitions allegations of personal mala fide have been levelled
against the appellant.
writ petition came up for preliminary hearing on 7- 2-1992 before a Division Bench consisting of S.S. Sodhi and K.C. Garg,
JJ. The writ petition was admitted and ex parte ad interim stay was granted.
After notice, when the matter came up for hearing before a Bench consisting of
S.S. Sodhi and R.S. Mongia, JJ., it was directed to be listed for final hearing
on 3-8-1992. The then Chief Justice Mr Rama Jois
proceeded on leave on 1-8-1992. Thereupon, S.S. Sodhi, J. became
the Acting Chief Justice.
3-8-1992, when the writ petition was listed before the Tax Bench comprising of
A.P. Choudhary and N.K. Sodhi, JJ., S.S. Sodhi, J. directed the writ petition
to be delisted from the Tax Bench before which it was listed and transferred
the case presided over by S.S. Sodhi, J. himself. It appears this was the only
case which was directed to be delisted from the Tax Bench and transferred to
the Division Bench presided over by the then Acting Chief Justice.
5. On 21-8-1992, Chief Justice Mr Rama Jois returned from leave and
resumed charge. On 24-8-1992 this Court in Special Leave
Petition (Civil) No. 7700 of 1992 arising out of a connected Writ Petition
(Civil) No. 3864 of 1992 directed the case be remanded to the High Court
ordering expeditious disposal along with CWP No. 1898 of 1992. On 1- 9-1992, Chief Justice Rama Jois resigned. Thereupon, again,
S.S. Sodhi, J. became Acting Chief Justice. He continued in that capacity till 13-11-1992. When the writ petition was pending hearing, G.R. Majithia,
J. sought an explanation from the Registrar (Judicial) as to why the case was
transferred from the Tax Bench to the Bench presided over by the Acting Chief
Justice. On 21-10-1992, S.S. Sodhi, J.
the writ petition from his Bench and re- 22 transferred it to the Tax Bench
comprising of A.L. Bahri and Ashok Bhan, JJ. The case did not reach for hearing
before this Bench. On 22-10-1992, G.R. Majithia, J. once again wrote
to the Registrar (Judicial) seeking compliance with his earlier order dated 20-10-1992. This letter was forwarded by the Registrar
(Judicial) to the Acting Chief Justice soliciting orders in respect thereof. It
was directed that the note be placed in the file.
6. On 14-11-1992, Justice S.D. Agarwala was appointed as Chief
Justice, As a result, S.S. Sodhi, J. became the senior most puisne Judge.
the reopening of the High Court after summer vacation, the writ petition along
with other connected petitions were placed for hearing before the Tax Bench
comprising of S.S. Sodhi and Ashok Bhan, JJ. A request was made for an early
hearing of the writ petition on behalf of the first respondent. Accordingly a
direction was issued that the writ petitions be placed for final hearing on
13-9- 1993. The hearing went on on 13-9-1993. A preliminary objection was raised
on behalf of the State about the maintainability of the writ petition since the
alternate statutory remedies available to the first respondent had not been
exhausted. The Division Bench did not consider that objection but directed the
arguments be addressed on merits.
petitions were adjourned for further orders to 4-10- 1993.
records bear out. G.R. Majithia, J. addressed a letter to the learned Chief
Justice on 13-9-1993 referring to his earlier
communication on the subject and requested to know the circumstances under
which the writ petition had been transferred to a Division Bench presided over
by S.S. Sodhi, J. Be that so. On 4-10-1993, the hearing recommenced on the writ petition.
appellant on his return after long tour of Rajasthan and Delhi, on 4-10-1993, came to know about these happenings. They were the cause
of some consternation and apprehension in his mind since allegations of mala
fides had been levelled against him by the first respondent who is said to be a
political opponent. Therefore, on 4-10-1993 an application CM No. 9909 of 1993
was moved requesting the Division Bench to transfer the matter from their
was issued and the hearing was fixed on 6-10-1993.
After hearing the arguments, the application for transfer was dismissed.
However, time was granted till 12- 10-1993 to
approach this Court and it was indicated that thereafter the matter would be
taken up on day to day basis.
Appellant assails in this appeal the order refusing transfer. During this civil
appeal, an additional affidavit was filed on behalf of the appellant giving
details of the course which the writ petition took. He would have it, on
3-8-1993, when S.S. Sodhi, J. took over as Acting Chief Justice the writ
petition was listed at Serial No. 342 before A.P Chaudhari and N.K. Sodhi, JJ.
S.S. Sodhi, J.
directed the Registrar (Judicial), Shri B.R. Gulati that the writ petition
along with connected writ petitions be listed before a 23 Bench presided over
by the then Acting Chief Justice. The note in support of the same is produced
as Annexure 'F'.
The affidavit further proceeds to state that the deponent reliably learnt that
the then Acting Chief Justice, in fact, went to the chambers of N.K. Sodhi, J.
and told him that by mistake it had been listed before a Bench presided over by
A.P. Chaudhari, J. N.K. Sodhi, J. was somewhat agitated and told the Acting
Chief Justice that the transfer of the case from that Bench was not in
accordance with the normal practice of the High Court. There was no reason why
the matter was removed from the roaster. A.P. Chaudhari, J.
is said to have sent a formal note to the Registrar as to why this particular
matter had been removed from their Bench and the note was apparently returned
with an endorsement by the Registrar (Judicial) indicating that this was done
on the oral directions of the Acting Chief Justice.
deponent believed that S.S. Sodhi, J. thereafter met N.K. Sodhi, J. to express
his regret for what had happened.
list (constitution) of the Tax Bench comprising A.P Chaudhari and N.K. Sodhi,
JJ. was circulated on the evening of 1-8-1992 or on the morning of 2-8-1992. On 31-7-1992 a
request was made before S.S. Sodhi, J. that CWP No. 1898 of 1992, which he had
while presiding over the Bench fixed for 3-8-1992, may not be taken up on that day.
His further averment is as under:
is further reliably learnt that Hon'ble Chief Justice Rama Jois returned to Chandigarh
in August 1992 and both Justice N.K. Sodhi and Justice A.P. Chaudhari met the Hon'ble
Chief Justice and it seems that the Hon'ble Chief Justice conveyed to them that
he had already told the Acting Chief Justice that this should not have been
done and that the Acting Chief Justice should not hear the matter when it came
up for hearing. Under these circumstances, it was felt that the Hon'ble Judges
from whose Bench it was delisted should not carry the matter any further.
these facts are correct, obviously Hon'ble Justice S.S. Sodhi should not have
heard this matter when it came up for hearing before him in October 1992.
* * *
The deponent feels that it is imperative in matters of this nature that the
Court believes that the executive does not file applications of this nature
irresponsibly and with a motivation to have the matter heard by one Bench or
another. The deponent has disclosed these facts as they have come to his
knowledge, so that the Court may not have an impression that the application
was motivationally filed and that by the filing of this application, the
dignity of the Court is being compromised. The deponent herein respects the
highest traditions and dignity of the Court, and would in no circumstances ever
compromise it. The facts set out herein are stated instead to show that there
was genuine apprehension in the mind of the deponent and that these facts were
to the knowledge 24 of the learned Judge in the matter. Since the petition
involved allegations of personal mala fides against the deponent, and since the
deponent was joined as a party-respondent, the circumstances as set out
hereinabove warranted that the learned Judge need not have heard the matter
himself, and that the Hon'ble Chief Justice would have, in the circumstances,
directed the matter to be listed before any appropriate Bench. It is not that
the deponent was, and is wishing the matter to be heard by any particular
Bench. It is with this view that the present affidavit is being filed."
counter-affidavit has been filed on behalf of the first respondent that the
facts stated in the additional affidavit are not admitted by the first
respondent since he has no means to verify the correctness of the same.
the appellant has not disclosed in his affidavit the source of his information.
18-11-1993 serious arguments were addressed
whether the affidavit must disclose the source of information.
the first respondent thought fit to file an affidavit that- "his counsel Shri
Shanti Bhushan contacted former Chief Justice Mr Rama Jois in the evening of
18-11-1993 itself. He wrote about the contents of paragraph 8 and also informed
him that the counsel for the appellant had stated before this Court that the
information contained in that paragraph had been conveyed to the appellant by
Chief Justice Mr Rama Jois. The counsel for the respondent asked Chief Justice Mr
Rama Jois whether it was so to which the reply was that he considered it
improper to talk about any conversation which might have taken place between
the Chief Justice and other Judges of the High Court in the chambers. In view
of this principle he could not give any such information to any person much
less to a party or its counsel.
it is clear that Chief Justice Mr Rama Jois could not have conveyed any such
information to the appellant."
response to this, the appellant stated that prior to the date of his filing the
petition for transfer on 4-10- 1993 he contacted the then Chief Justice Mr Rama
Jois on telephone and asked him why S.S. Sodhi, J. had taken up the matter. The
appellant would state that he got the information that Chief Justice Mr Rama Jois
had advised S.S. Sodhi, J. not to do so. This was confirmed by Chief Justice Mr
Rama Jois. The appellant was also informed that Chief Justice Mr Rama Jois had
informed S.S. Sodhi, J. that it was wrong on the part of S.S. Sodhi, J. to have
transferred the matter in the first place. The appellant states that the
retired Chief Justice Mr Rama Jois was asked whether his name could be
mentioned in the application to be moved by him. The appellant was replied that
this would embarrass him and his name should not be brought into the
he did not mention the Judge's name in the application and in the additional
affidavit filed by him.
Kapil Sibal, learned counsel for the appellant submits that transfer of one
case alone to the file of the then Acting Chief Justice would be enough to
establish his interestedness. The right to fair trial is guaranteed under the
Constitution. It entitles a litigant to adjudication of a cause by a judge who
is perceptibly and demonstrably unbiased and without prejudice. In order to
dispel any suspicion of a litigant a judge should refuse himself even though
the judge is not conscious of any bias or prejudice.
prejudice, a state of mind, cannot be proved by direct and positive evidence.
Therefore, it cannot be judged on the basis of an objective standard but from
the point of view of the litigant. In support of his submission learned counsel
cites the following cases: American Steel Barrel Co. 1; ex (p) Bell v.
Chandler2 where the test adopted is not bias or prejudice alone but the bent of
mind that may prevent impartiality; United States v. Scuito3 wherein the test
is to accept the affidavit which is taken as true for the purposes of motion;
Metropolitan Properties Co. (FG. C.) Ltd. v. Lannon4.
This Court had also adopted the same principle as seen from Ranjit Thakur v.
Union of India5 and Lalita Rajya Lakshmi v. State of Bihar6.
Thus, it is submitted that the learned Judges had gone wrong in refusing to
order transfer when the litigant entertained suspicion that he may not get
justice at the hands of this Bench, that too, In a sensitive matter where allegations
of mala fides have been made against the appellant.
Shanti Bhushan, learned counsel for the first respondent submits that when a
clear finding has been recorded by the Bench there could be no possible
occasion for the appellant to entertain any apprehension that he would not get
justice from the Bench. The only ground for transfer urged was that the
petition was taken up for hearing by S.S. Sodhi, J. after he had directed the
matter to be delisted from the Tax Bench and be listed before his Bench. This
ground is untenable. It was the normal practice if a date was fixed for final
hearing by a particular Bench, it should come before the same Bench.
practice has not been denied by the appellant. A request was made by the
Advocate General of Haryana, the counsel for the appellant before S.S. Sodhi,
J. that since he was busy otherwise the case might not be taken up on 3-8-
1992. This request was acceded to. On 31-7-1992, when this request was made S.S. Sodhi,
J. was not Acting Chief Justice. The learned Advocate General knew that the
matter should be listed before S.S. Sodhi, J.'s Bench. However, when it was
mistakenly shown on 2-8-1992 before a different Bench and since
on 3-8-1992 S.S. Sodhi, J. became Acting Chief
Justice he directed the matter be posted before him for hearing. The case
remained on the Bench of S.S. Sodhi, J. from 3-8-1992 to 21-10-1992 and 1 57 L
Ed 1379, 1383-84 : 230 US 35 2 569 Federal Report 2d Series 556, 558-559 3 531
Federal Report 842, 845 4 (1969)1 QB 577, 599:(1968) 3 All ER 304: (1968)3 WLR
694 5 (1987) 4 SCC 611 : 1988 SCC (L&S) 1 :(1987) 5 ATC It 3 :(1988) 1 SCR
512 6 AIR 1957 Pat 198, paras 20-21 : 1956 BJLR 99 26 no objection whatsoever
was raised. The application of the appellant was a belated attempt after three
days of hearing and after 20 days of the commencing of final hearing on 13-9-1993 by which time the arguments had reached an advance
stage. In M. Y Shareef v. The Hon'ble Judges of the High Court of Nagpur7 this
Court had occasion to condemn the attempts for a change of Bench. The ratio of
that ruling will squarely apply to the facts of this case. To the same effect
is the case in Gujarat Electricity Board v. Atmaram Sungomal Poshani8. No
doubt, reasonable apprehension of bias which a reasonable person can entertain
may be a good ground for transfer. That does not mean a litigant has a right to
ask for a change of Bench. A mere statement of a party to a proceeding about
his entertaining an apprehension may be inadequate as the facts of this case
make it quite clear. Even in the later affidavits filed, the source of
information has not been disclosed. The requirement of law is, there must be
such a disclosure as seen from Barium Chemicals Ltd. v. Company Law Board9, Sukhwinder
Pal Bipan Kumar v. State of Punjab IO and Savithramma
v. Cecil Naronha 11.
The allegations relating to bias have paled into insignificance since the
learned Judge (S.S. Sodhi, J.) against whom bias is alleged is no longer in the
High Court of Punjab and Haryana. Normally, therefore, we would have rest
content with the dismissal of this appeal as having become really infructuous.
But certain unhappy events have taken place in this case which we view with
we feel obliged to express our mind.
The appellant is the Chief Minister of a State.
him allegations of mala fides are made by the first respondent. He might have
strongly resented such allegations quite understandably desired to defend himself.
that score, it cannot be said, a particular Bench cannot hear the case.
Whatever might have been the reason for the transfer of the writ petition from
one Bench to another to make that a ground for allegation of bias appears
unjustified. May be, either because of a particular practice prevailing in a court
that the Bench which directed the posting of a case should finally hear the
matter or because of the change of roasters, the case would have come before a
particular Bench. There is nothing to indicate that the then Acting Chief
Justice S.S. Sodhi evinced an interest in hearing this matter or that, he was
Bias is the second limb of natural justice. Prima facie no one should be a
judge in what is to be regarded as `sua causa', whether or not he is named as a
party. The decision-maker should have no interest by way of gain or detriment
in the outcome of a proceeding. Interest may take many forms. It may be direct,
it may be indirect, it may arise from a personal relationship 7 (1955) 1 SCR
757 :.AIR 1955 SC 19 8 (1989) 2 SCC 602, 606: 1989 SCC (L&S) 393 :(1989) 10
ATC 396 :(1989) 2 SCR 357, 362 9 1966 Supp SCR 311, 352: AIR 1967 SC 295 10
(1982) 1 SCC 31, 3 8 (1982) 2 SCR 31, 40 11 1988 Supp SCC 655 1988 Supp (2) SCR
561 27 or from a relationship with the subject-matter, from a close relationship
or from a tenuous one.
the case of non-pecuniary bias, as alleged in the instant case, regard is to be
had to the extent and nature of interest. Then alone, the judge will be
leading case R. v. Sussex Justices, ex p McCarthy12, Lord Hewart
observed thus: fundamental importance, that justice should both be done and be
manifestly seen to be done.... Nothing is to be done which creates even a
suspicion that there has been an improper interference with the course of
R. v. Barnsley Licensing Justices, ex p Barnsley and District Licensed Victuallers' Assn. 13 Justice Devlin, L.J. said:
have not to inquire what impression might be left on the minds of the present
applicants or on the minds of the public generally. We have to satisfy
ourselves that there was a real likelihood of bias, and not merely satisfy
ourselves that that was the sort of impression that might reasonably get
term 'real likelihood of bias' is not used, in my opinion, to import the
principle in R. v. Sussex Justices12 to which Salmon, J.
It is used to show that it is not necessary that actual bias should be proved.
It is unnecessary and, indeed, might be most undesirable to investigate the
state of mind of each individual justice. 'Real likelihood' depends on the
impression which the court gets from the circumstances in which the justices
were sitting. Do they give rise to a real likelihood that the justices might be
biased? The court might come to the conclusion that there was such a likelihood
without impugning the affidavit of a justice that he was not in fact biased.
Bias is or may be an unconscious thing and a man may honestly say that he was
not actually biased and did not allow his interest to affect his mind, although,
nevertheless, he may have allowed it unconsciously to do so. The matter must be
determined on the probabilities to be inferred from the circumstances in which
the justices sit."
The present day law in England is based on reasonable suspicion. Metropolitan
Properties Co. (FGC) Ltd. v. Lannon4, an authority relied on by Mr Kapil Sibal,
Hannam v. Bradford City Council14 Cross, L.J. expressed the view, at p. 949,
that there is really little, if any, difference between the real likelihood of
bias and reasonable suspicion of bias test:
reasonable person who has no knowledge of the matter beyond knowledge of the
relationship which subsists between some members of the tribunal and one of the
parties would think that there might well be bias, then there is in his opinion
a real likelihood of bias. Of course, someone else with inside knowledge of the
12 (1924) 1 KB 256: 1923 All ER Rep 233 13 (1960) 2 QB 167, 186-87 : (1960) 2
All ER 703 : (1960) 3 WLR 305 14 (1970) 2 All ER 690: (1970) 1 WLR 937 28
characters of the members in question might say: "Although things don't
look very well, in fact there is no real likelihood of bias." But that
would be beside the point, because the question is not whether the tribunal
will in fact be biased, but whether a reasonable man with no inside knowledge
might well think that it might be biased., This view was accepted in R. v.
Liverpool City Justices, ex p Topping15. The Divisional Court considered that
the correct test to apply is whether there is the appearance of bias, rather
than whether there is actual bias; and that as to the way in which the test is
to be applied the question is: Would a reasonable and fair-mined person sitting
in Court and knowing all the relevant facts have a reasonable suspicion that a
fair trial for the applicant was not possible? 'Reasonable suspicion' seems to
have prevailed over 'reasonable likelihood' as the test to be applied in
is in the light of this, the matter will have to be examined. So done, we
hardly find any ground to hold that there could be a reasonable suspicion of
bias in this case.
is evident from the facts. The case was in the list of the Bench headed by S.S.
Sodhi, J. from 3-8-1992 to 21-10- 1992. No objection was raised. Arguments were
advanced for three days on the main writ petition. The application for transfer
was taken out on the ground of alleged bias. By then the matter was coming to a
close. It cannot be said that there could be any reasonable apprehension of bias
which a reasonable person could entertain, as rightly urged by Mr Shanti Bhushan.
It appears the attempt was to avoid the Bench headed by S.S. Sodhi, J.
are unhappy that the appellant should have felt compelled to seek information
as to what transpired within "the judicial fortress" among the
judicial brethren. Judges should not be dragged in and their names mentioned in
such matters. Rightly the former Chief Justice Mr Rama Jois refused to allow
his name to be quoted considering it improper to talk about any conversation
which might have taken place between the Chief Justice and the other Judges of
the High Court in their chambers.
Then, we come to G.R. Majithia, J., a senior Judge. On 20-10-1992 he sought an
explanation from the Registrar (Judicial) as to why the case was transferred
from the Tax Bench to the Bench presided over by the then Acting Chief Justice,
S.S. Sodhi, J. Secondly, on 22-10-1992, he wrote a letter to the Registrar
(Judicial) calling for a report.
letter, at the direction of the then Acting Chief Justice was placed in the
file. Again, on 13-9-1993 another letter was written by Majithia, J. to the
have perused these letters. We are of the view that the learned Judge should
not have sent these communications.
conduct might incur the criticism of transgressing the proprieties of the high
office. We cannot 'but express our unhappiness about these letters; whatever
might have been the compulsions that impelled the learned Judge to do so.
that 15 (1983) 1 All ER 490: (1983) 1 WLR 11 9 29 the learned Judge did so on
his own impression of the proprieties of procedure adopted by the Registry. But
his enquiries and letters are not consistent with the restraint expected of the
Courts are indeed a storm centre facing the panoply of human problems, crowded
dockets and unrelenting work schedules. Justice Oliver Wendell Holmes said:
are quiet here but it is the quiet of a storm centre." In Justice Benjamin
Cardozo's memorable words, "the great tides and currents which engulf the
rest of men, do not turn aside in their course, and pass judges by". We
should only add that the judges must remain unruffled and calm in the midst of
contending forces. To recall the words of Mr Justice Frankfurter in Public
Utilities Commission of the District of Columbia v. Franklin S. Pollakl6:
judicial process demands that a judge move within the framework of relevant
legal rules and the covenanted modes of thought for ascertaining them. He must
think dispassionately and submerge private feeling on every aspect of a case.
There is a good deal of shallow talk that the judicial robe does not change the
man within it. It does.
fact is that on the whole judges do lay aside private views in discharging
their judicial functions. This is achieved through training, professional
habits, self-discipline and that fortunate alchemy by which men are loyal to
the obligation with which they are entrusted." (emphasis supplied) With
this we leave.
Appeal No. 5525 of 1994 arising out SLP (C) No. 16577 of 1993 and Transfer
Petition (Civil) No. 880 of 1993 are dismissed. No costs.