Ram Jethmalani &
Ors. Vs. Union of India & Ors.
O R D E R
1.
Writ
Petition (Civil) No.176 of 2009 was filed by Shri Ram Jethmalani and five others
against the Union of India, the Reserve Bank of India, the Securities Exchange Board
of India, the Director, Directorate of Enforcement and the Chairman, Central Board
of Direct Taxes, Department of 2Revenue, Ministry of Finance, Government of India,
against the purported inaction of the Government to arrange for recovery of
large sums of money deposited by Indian citizens in foreign banks and, in particular,
in Swiss Banks. In that context the Petitioners, inter alia, prayed for the
following reliefs :-
a. "that this Hon'ble
Court may be pleased to issue notice to all the Respondents calling upon them to
disclose all the facts which have come to their knowledge so far pertaining to the
aforementioned issues and the steps taken by them in this regard;
b. to make orders from
time to time to ensure that the outcome of the investigations are not suppressed
or even unduly delayed;
c. the suitable directions
be issued to the Respondent No.1 to apply to the Foreign Banks, more particularly
the UBS Bank for freezing the amounts in the said foreign banks, particularly, the
UBS Bank which as stated above is holding, inter alia, the Khan and Tapurias'
assets."
2.
On
4th July, 2011, on I.A. No.1 of 2009 in the Writ Petition several directions were
given. In fact, the said order was divided into three parts. The first part of the
order dealt with the alleged failure of the Central 3Government to recover the large
sums of money kept in such foreign banks and in tax havens having strong secrecy
laws with regard to deposits made by individuals.
The second part dealt
with the unlawful activities allegedly funded out of such deposits and accounts
which were a threat to the security and integrity of India. The amounts deposited
in such tax havens in respect of one Shri Hassan Ali Khan and Shri Kashinath Tapuria
and his wife Chandrika Tapuria were alleged to be in billions of dollars in UBS
Bank in Zurich alone. Income Tax demands were made to Shri Hassan Ali Khan for Rs.40,000
crores and a similar demand was served on the Tapurias amounting to Rs.20,580 crores.
On being convinced
that, in the absence of any known source of income, the large sums of money involved
in the various transactions by Hassan Ali Khan and the Tapurias were the
proceeds of crime, which required a thorough investigation, this Court felt the
necessity of appointing a Special Investigation Team to act on behalf and at
the behest of the directions of this Court. It was noted by this Court that the
issues involved were complex and would require expertise and knowledge of 4different
departments and the coordination of efforts between various agencies and departments.
It was also recorded that on behalf of the Union of India, it had been
submitted that a High Level Committee had recently been formed under the initiative
of the Department of Revenue in the Ministry of Finance, composed of :
i.
Secretary,
Department of Revenue, as the Chairman;
ii.
Deputy
Governor, Reserve Bank of India;
iii.
Director
(IB);
iv.
Director,
Enforcement;
v.
Director,
CBI;
vi.
Chairman,
CBDT;
vii.
DG,
Narcotics Control Bureau;
viii.
DG,
Revenue Intelligence;
ix.
Director,
Financial Intelligence Unit; and
x.
JS(FT
& TR-I), CBDT. with powers to co-pt, as necessary, representatives not
below the rank of Joint Secretary such as the Home Secretary, Foreign Secretary,
Defence Secretary and the Secretary, Cabinet Secretariat.
It was further recorded
that the Union of India had claimed that such a multi-disciplinary group and
committee would enable the conducting of an efficient and a systematic investigation
into the matters concerning allegations against Hassan Ali Khan and the Tapurias
and would also be able to take appropriate steps to bring back the monies deposited
in foreign banks. In the light of such submission made on behalf of Union of
India and citing the judgments of this Court in (1) Vineet Narain Vs. Union of India
[(1996) 2 SCC 199],(2) NHRC Vs. State of Gujarat [(2004) 8 SCC 610], (3) Sanjiv
Kumar Vs. State of Haryana [(2005) 5 SCC 517] and
(4) Centre for PIL
Vs. Union of India [(2011) 1 SCC 560], this Court completed the second part of
the order by directing as follows :- 49. In light of the above we herewith
order: (i) That the High Level Committee constituted by the Union of India, comprising
of (i) Secretary, Department of Revenue; (ii) Deputy Governor, Reserve Bank of India;
(iii) Director (IB); (iv) Director, Enforcement; (v) Director, CBI; (vi) Chairman,
CBDT; (vii)DG, Narcotics Control Bureau; (vii) DG, Revenue Intelligence; (ix) Director,
6 Financial Intelligence Unit; and
(x) JS (FT & TR-I),
CBDT be forthwith appointed with immediate effect as a special Investigation Team;(ii)
That the Special Investigation Team, so constituted, also include Director, Research
and Analysis Wing;(iii) That the above Special Investigation Team, so constituted,
be headed by and include the following former eminent judges of this Court:
(a) Hon'ble Mr. Justice
B.P. Jeevan Reddy as Chairman; and (b) Hon'ble Mr. Justice M.B. Shah as Vice-Chairman;
and that the Special Investigation Team function under their guidance and
direction;
(iv) That the Special
Investigation Team, so constituted, shall be charged with the responsibilities and
duties of investigation, initiation of proceedings, and prosecution, whether in
the context of appropriate criminal or civil proceedings of: (a) all issues relating
to the matters concerning and arising from unaccounted monies of Hassan Ali Khan
and the Tapurias;
(b) all other investigations
already commenced and are pending, or awaiting to be initiated, with respect to
any other known instances of the stashing of unaccounted monies in foreign bank
accounts by Indians or other entities operating in India; and
(c) all other matters
with respect to unaccounted monies being stashed in foreign banks by Indians or
other entities operating in India that may arise in the course of such investigations
and proceedings. It is clarified here that within the ambit of 7 responsibilities
described above, also lie the responsibilities to ensure that the matters are also
investigated, proceedings initiated and prosecutions conducted with regard to criminality
and/or unlawfulness of activities that may have been the source for such monies,
as well as the criminal and/or unlawful means that are used to take such unaccounted
monies out of and/or bring such monies back into the country, and use of such monies
in India or abroad.
The Special Investigation
Team shall also be charged with the responsibility of preparing a comprehensive
action plan, including the creation of necessary institutional structures that
can enable and strengthen the country's battle against generation of unaccounted
monies, and their stashing away in foreign banks or in various forms domestically.
(v) That the Special Investigation
Team so constituted report and be responsible to this Court, and that it shall be
charged with the duty to keep this Court informed of all major developments by
the filing of periodic status reports, and following of any special orders that
this Court may issue from time to time;
(vi) That all organs,
agencies, departments and agents of the State, whether at the level of the Union
of India, or the State Government, including but not limited to all statutorily
formed individual bodies, and other constitutional bodies, extend all the cooperation
necessary for the Special Investigation Team so constituted and functioning;
(vii) That the Union of
India, and where needed even the State Governments, are directed to facilitate the
conduct of the investigations, in their fullest measure, by the Special Investigation
Team so constituted and functioning, by extending all the necessary financial, material,
legal, diplomatic and intelligence resources, whether such investigations or portions
of such investigations occur inside the country or abroad.
(viii) That the Special
Investigation Team also be empowered to further investigate even where charge-sheets
have been previously filed; and that the Special Investigation Team may register
further cases, and conduct appropriate investigations and initiate proceedings,
for the purpose of bringing back unaccounted monies unlawfully kept in bank accounts
abroad.
3.
The
third part of the order deals with the disclosure of various documents referred
to by the Union of India in relation to the names and particulars of various bank
accounts of Indian citizens in the Principality of Liechtenstein, a small landlocked
sovereign nation-state in Europe, which is generally acknowledged as a tax
haven.
4.
The
third part of the order is not of relevance at this stage, since an
application, being IA No.8 of 2011, has been filed by the Union of India in the
Writ Petition, purporting to be an application under Article 142 of the Constitution
read with Order 47 Rule 6 of the Supreme Court Rules, 1966, seeking modification
of the aforesaid order dated 4th July, 2011.
5.
Before
the Application could be moved by the learned Attorney General, Mr. Anil B.
Divan, learned Senior Advocate appearing for the Writ Petitioners, took a preliminary
objection that the interlocutory application was not maintainable on several counts.
It was firstly urged that in effect, in the guise of an application for modification,
the Respondents/Applicants were wanting either a re-hearing and/or review of the
order passed on 4th July, 2011, disposing of I.A.No.1 of 2009.
Mr. Divan pointed out
that it was the Government itself which had set up a High Level Committee consisting
of senior officers of different departments to take steps for retrieving the black
money which had been deposited in banks in tax havens all over the world and, in
particular, in Swiss Banks and it did not, therefore, lie in the mouth of the Government
to take a different stand when the same Committee had been converted into a Special
Investigation Team with two former Judges of the Supreme Court to monitor the progress
of the recovery proceedings.
6.
Mr.
Divan also contended that the formation of a Special Investigation Team to
monitor the investigation is not a new concept and has been resorted to on different
occasions in order that justice is done between the parties and the rule of law
is not obstructed either by the investigating agency or otherwise. Mr. Divan
urged that once the matter had been decided on merits and a direction had been given
for the formation of a Special Investigation
Team composed of the
very officers who had been appointed as members of the High Level Committee for
the very same purpose, the Government is not justified in objecting to the investigation
being monitored by such Committee headed by two retired Judges of the Supreme Court
with impeccable credentials. Mr. Divan submitted that the contention of the Respondents
in I.A. No.8 of 2011 was as if by appointing a Special Investigation Team, the Supreme
Court had taken over the executive powers of the Union. It was submitted that although
a case against the accused was pending since 2007, no attempt had been made to interrogate
the accused in regard to the allegations made against them.
7.
Mr.
Divan submitted that possibly other fora were available to the Respondents, but
the present I.A. would not provide any remedy to the Respondents. Mr. Divan
urged that it was on account of the complete inertia of the investigating authority
that in spite of huge sums of unaccounted money deposited in tax havens abroad,
little or no action was taken to proceed with the investigation or even to interrogate
the persons accused of having been involved in money laundering and acting against
the interests of the country and its citizens. Mr. Divan submitted that the remedy
available to the Respondents lay in a review petition under the provisions of
Order 47 of the Supreme Court Rules, 1966, and not by an interlocutory
application and that too in a disposed of matter.
8.
Mr.
Shekhar Naphade, learned Senior Advocate who appeared for the Petitioner in Writ
Petition (Civil) No.136 of 2011, supported the submissions made by Mr. Anil Divan
with regard to the maintainability of the Interlocutory Application No.8 of 2011
filed by the Union of India. It was contended that neither the provisions of Article
142 of the Constitution nor Order 47 Rule 6 of the Supreme Court Rules were
attracted in the facts of this case, inasmuch as, the said provisions conferred
power and not jurisdiction on this Court in respect of a matter which was pending
before it. Mr. Naphade submitted that Article 142 very clearly vested the Supreme
Court with jurisdiction to pass such decree or make such order as is necessary
for doing complete justice in any case or matter pending before it. Mr. Naphade
also contended that, as had been held by this Court, in Saurav Chaudhary Vs. Union
of India [(2004) 5 SCC 618], this Court could exercise its jurisdiction under
Article 142 of the Constitution at the time of rendition of the judgment and not
thereafter.
It was further observed
that once judgment had been delivered by the Court, it could not recall the same
and could only exercise its power of review in case it intended to take a different
view from the one rendered in the main judgment. Mr. Naphade also urged that
even the provisions of Order 47 Rule 6 of the Supreme Court Rules were of no assistance
to the Union of India. It was submitted that the Rules framed under Article 145(1)
of the Constitution only empowered the Supreme Court to frame Rules to regulate
its practice and procedure and does not take in its sweep the power to create a
new jurisdiction to entertain a cause or matter.
9.
Reference
was also made to the decision of this Court in Raja Soap Factory & Ors. Vs.
S.P. Shantharaj & Ors.[(1965) 2 SCR 800], wherein it was observed that by jurisdiction
what is meant is the extent of power which is conferred upon a Court by its Constitution
to try a matter or a cause. Such power is not capable of being enlarged because
an extraordinary situation requires the Court to exercise it.
10.
Mr.
Naphade submitted that by virtue of this application, the Union of India was seeking
to review a final order passed by this Court, treating the same to be an
application for recalling the order. Mr. Naphade repeated and reiterated his
submissions that the application filed on behalf of the Union of India and its authorities
was not maintainable and could only be dismissed.
11.
Replying
to the submissions made by Mr. Divan and Mr. Naphade, the learned Attorney General
submitted that in earlier cases also this question had been raised and
considered by this Court. Referring to the decision of a Bench of Seven Judges in
the case of A.R. Antulay Vs. R.S. Nayak & Anr. [(1988) 2 SCC 602], the learned
Attorney General submitted that by a majority judgment this Court held that directions,
if given in violation of the principles of natural justice, if subsequently
questioned in another appeal instead of by way of a Review Petition under Article
137, the same could be set aside by another Bench of the Court ex debito justitiae
in exercise of its inherent powers.
The majority amongst the
Judges held that the want of jurisdiction could be addressed solely by a superior
Court and, in practice, no decision could be reviewed collaterally by any inferior
Court, but the superior Court could always correct its error either by way of a
petition or ex debito justitiae. In fact, it was also observed that in certain
situations, the Supreme Court could always invoke its power of review in
exercise of its inherent jurisdiction in any proceeding pending before it, without
insisting on the formalities of a review application.
The learned Attorney General
submitted that by appointing two retired Judges of the Supreme Court, Justice B.P.
Jeevan Reddy as the Chairman and Justice M.B. Shah as the Vice-Chairman, and
directing that the Special Investigation Team would function under their guidance
and directions, would amount to interference with the executive authority of the
different officials representing different sections of the administration which
would lead to a chaotic situation. The 16direction given to include the
Director, Research & Analysis Wing, was also improper, since the said
authority functioned under strict rules of secrecy, which could be jeopardized
if its Director were to be included in the Special Investigation Team.
12.
The
learned Attorney General submitted that, in the event there was any doubt as to
whether the powers of the Supreme Court under Article 142 of the Constitution
could be invoked for doing complete justice in a matter which was not pending before
it, the present application could always be treated as a Review Petition under Article
137 of the Constitution read with Order 47 Rule 6 of the Supreme Court Rules,
1966. The learned Attorney General submitted that in view of the magnitude of the
transactions involved and that too without any accounting of the monies used, this
Court should cut across technicalities and consider the matter pragmatically.
The learned Attorney General
submitted that the present application may, therefore, be treated as a Review Petition
under Article 137 of the Constitution read 17with Order 47 Rule 6 of the
Supreme Court Rules, 1966 and be proceeded with accordingly, notwithstanding the
objection taken on behalf of the Petitioners in regard to the different procedure
to be adopted in respect of a review application. It was also submitted that as
indicated in A.R. Antulay's case (supra), the Supreme Court can grant relief in
exercise of its inherent powers as the guardian of the Constitution.
13.
Reference
was also made by the learned Attorney General to the decision of this Court in
S. Nagaraj & Ors. Vs. State of Karnataka & Anr. [(1993) Supp. (4) SCC 595],
which was heard along with several other cases by a Bench of three Judges. In
the said cases an order had been passed on oral mentioning which ultimately resulted
in several contempt petitions being filed. Two of the Hon'ble Judges, after
considering the anomalous circumstances which had resulted from the passing of the
order on oral mentioning, held that justice is a virtue which transcends all barriers
and neither the rules of procedure nor technicalities of law can 18stand in its
way.
It was further
observed that the order of the Court should not be prejudicial to anyone and if
the Court found that the order was passed under a mistake and it would not have
exercised the jurisdiction, but for the erroneous assumption which in fact did not
exist, and its perpetration would result in miscarriage of justice, then it
would not on any principle be precluded from rectifying the order. Mistake is accepted
as a valid reason to recall an order. Their Lordships emphasized the fact that
rectification of an order stems from the fundamental principles that justice is
above all.
It is exercised to
remove the error and not for disturbing finality. In the judgment it was also
observed that the Supreme Court has the inherent power to make such orders as may
be necessary for the interest of justice or to prevent the abuse of process of Court.
The Court is, therefore, not precluded from recalling or reviewing its own order,
if it is satisfied that it is necessary to do so for the sake of justice.
It was pointed out that
even the learned third Judge held that while the Government was mainly responsible
for the unfortunate state of affairs that should not desist the Supreme Court from
revising or reviewing the said orders which had serious consequences. The learned
third Judge also observed that it is the duty of the Court to rectify, revise and
recall its orders as and when it is brought to its notice that certain of its
orders were passed on a wrong or mistaken assumption of facts and that implementation
of those orders will have serious consequences.
14.
On
a careful consideration of the submissions made on behalf of the respective parties
in regard to the maintainability of I.A. No.8 of 2011 filed on behalf of the
Union of India, wherein, inter alia, a prayer has been made to modify the order
dated 4th July, 2011 and to delete the directions relating to the Special Investigation
Team in paragraphs 49 and 50 of the said order, it appears that the I.A. is maintainable.
In view of the preliminary objection relating to the maintainability of the interlocutory
application filed on behalf of the Union of India, the said issue regarding the
maintainability of I.A. No.8 of 2011 has been taken up first.
15.
From
the arguments advanced on behalf of the respective parties, it appears at first
blush that Mr. Anil B. Divan is technically correct in submitting that since there
was no matter pending before this Court, the provisions of Article 142 of the
Constitution would not be attracted and that even the inherent powers of this Court
preserved under Order 47 Rule 6 of the Rules framed by the Supreme Court in
exercise of its powers under Article 145 of the Constitution would not be applicable.
However, this Court has
preserved its inherent powers to make such orders as may be necessary for the
ends of justice in Order 47 Rule 6 of the Supreme Court Rules, 1966, framed under
Article 145 of the Constitution. As has been held in A.R. Antulay's case (supra)
and in S. Nagaraj's case (supra), such a power was not only inherent in the Supreme
Court, but the Supreme Court was also entitled to and under an obligation to do
justice to exercise such powers as the guardian of the Constitution. Justice transcends
all barriers and neither rules of procedure nor technicalities can stand in its
way, particularly if its implementation would result in injustice.
In addition to the decision
rendered by this Court in A.R. Antulay's case (supra) and in S. Nagaraj's case (supra),
reference may also be made to another equally important pronouncement of this Court
in Vineet Narain's case (supra), wherein the concept of continuing mandamus was
introduced in order to maintain the credibility of the investigation being
conducted.
16.
Reference
may also be made to the decision of this Court in Manganese Ore (India) Ltd. Vs.
Chandi Lal Saha [(1991) Supp. 2 SCC 465], wherein this Court extended the
benefit of its judgment to persons who were not even in appeal before it.17. Even
if the present application was to be dismissed as being not maintainable under
Article 142 of the Constitution read with Order 47 Rule 6 of the Supreme Court
Rules, 1966, it would not preclude the Applicants from filing an 22application for
review under Article 137 of the Constitution.
As the very working of
the Special Investigation Team appointed under the order of 4th July, 2011, is in
question, it is necessary to cut across the technical tapes sought to be invoked
on behalf of the Petitioners and hold that in view of the inherent powers
vested in the Supreme Court of India, preserved in Order 47 Rule 6 of the Supreme
Court Rules, 1966, and having regard to the fact that the Supreme Court is the guardian
of the Constitution, I.A. No.8 of 2011, even in its present form is
maintainable in the facts and circumstances of the case, which include threats
to the security of the country. 18. The objections raised by Mr. Anil B. Divan
and supported by Mr. Shekhar Naphade, regarding the maintainability of I.A. No.8
of 2011, are, therefore, rejected and the said application may therefore be
proceeded with for hearing.
............................................................J.
(ALTAMAS KABIR)
New
Delhi,
Dated:
23.09.2011.
Ram Jethmalani &
Ors. Vs. Union of India & Ors.
O R D E R
1.
I
have had the opportunity, and the benefit of reading, in draft, the learned
opinion of Hon'ble Mr. Justice Altamas Kabir. However, with all humility and
with due respect, I would not be able to concur with the view taken by my
Learned Brother. My Learned Brother has rejected the preliminary objections raised
by Mr. Anil Divan and Mr. Shekhar Naphade, appearing for the writ petitioners
and directed the application to proceed for hearing. In my opinion, the application
is not maintainable for a number of reasons.
2.
The
application clearly states that the order passed by this Court in I.A. No. 1 on
4th July, 2011 impinges upon the doctrine of separation of powers. The
application thereafter sets out the facts leading to the filing of the writ
petition invoking Article 32 of the Constitution of India. The application sets
out the prayers made in the writ petition. Thereafter, it is stated that the
writ petition, as originally filed, did not contain any prayer for appointment
of a Special Investigation Team. The application also points out that in the counter
affidavit filed on behalf of the Union of India, it had been clearly stated that
the Central Government had been alive to the need to be able to retrieve information
about the alleged money lying deposited in the foreign accounts and highlighting
steps 25taken by it in his behalf.
It further points out
that it was on account of such an initiative, tax haven countries, including countries
like Switzerland, made solemn attempts to enter into effective tax information exchange
agreements with various countries. The application proceeds to delineate the steps
taken and the strategy formulated to eradicate the menace of "Black
Money". It states that the Government had joined the global crusade
against Black Money.
It had decided to
create an appropriate legislative framework by incorporating various tax evasion
measures in existing Acts. Thereafter, the application gives the details of the
proposed new legislation for unearthing Black Money. After enumerating all the
efforts made by the Government at national and international level, it is
stated that above all the Government has constituted a Committee on 27th May,
2011 under the Chairman, C.B.D.T. to examine ways to strengthen laws to stop
the generation of Black Money in the country, its legal transfer abroad and its
recovery.
The Committee also
examined various other issues which are enumerated in the application. The application
further proceeds to 26tabulate the efforts to create further legislative and administrative
framework to obtain information about illicit money of Indian citizens already
parked outside the country. Thereafter, the application sets out the efforts
already made and the results thereof. On the basis of that, it is stated that
the Government has achieved substantial success not only in getting information
on illicit money parked outside the country but also in stopping the transfer
of illicit money outside the country. Thereafter, the details are given of the
illicit money detected.
3.
It
is stated that in the order dated 4th July, 2011, these efforts have neither been
adverted to nor evaluated before rendering the finding in Paragraph 46 of the
judgment.
4.
The
application thereafter sets out various efforts made in the matter of investigation
of the case of Hasan Ali Khan and Kashinath Tapuriah. The application
thereafter reproduces the directions sought in I.A. No.1 of 2009, which was
filed on 8th September, 2009. Thereafter, it is submitted that even in this application,
no prayer was made for appointment of a Special Investigation Team [SIT]. It is
further submitted that such a prayer ought not to have been granted on the
basis of written submissions of the learned counsel for the petitioners in the
absence of requisite pleadings in the writ petition or in the absence of a
formal prayer. The application further proceeds to state that it is filed
invoking the inherent power of this Court under Article 142(1) of the
Constitution of India for doing complete justice in any case or matter pending
before it.
5.
In
the grounds of the application, it is stated that this Court while exercising
its jurisdiction would not be pleased to attain to itself, the task entrusted
to the executive. It is emphatically submitted in the application that the order
is without jurisdiction since the constitution of the High Level Committee is
within the realm of a decision on policy matters. It is also submitted that
formation of a SIT headed by two former Judges of this Court not only impinges
on the policy decision of the Government but also impinges upon the doctrine of
separation of powers.
This, 28according to
the application, would be beyond the jurisdiction conferred on this Court under
Article 32 of the Constitution of India, which can be exercised for the
enforcement of the rights conferred by Part III and for no other purpose. It is
further submitted that the judgment proceeds on admissions, concessions, submissions
and acknowledgments attributed to the counsel appearing for the Union of India.
It is pointed out that such concessions and admissions do not appear to have been
made.
On the basis of the facts
pleaded, the prayer is made for modification of the order dated 4th July, 2011 and
deletion of the directions relating to SIT in Paragraphs 49 and 50. Since the
directions given in these paragraphs have been reproduced verbatim by His
Lordship, Justice Kabir, the same are not necessary to be reproduced herein
again.
6.
The
aforesaid facts have been stated merely to indicate that the application would not
be maintainable, in its present form, as in substance, it is more in the nature
of a Memorandum of Appeal. In my 29opinion, the application seeks to reopen the
whole matter on merits which would not be permissible in an application for modification.
Therefore, in my opinion, the application deserves to be dismissed at the
threshold.
7.
As
the submissions made by the learned counsel for the parties have been
succinctly noticed by my Learned Brother Altamas Kabir, J. in His Lordship's
order, the same need not be repeated herein.
8.
In
my opinion, an application for clarification/modification touching the merits of
the matter is not maintainable. The Court can consider the matter, if at all,
only upon a review application on limited grounds. In considering the application
for review, the procedure laid down under Order XL of the Supreme Court Rules, 1966
read with Article 137 would have to be followed. Review of a judgment is a
serious matter and is, therefore, governed by constitutional and statutory provisions.
This view of mine will find support from a number of earlier 30decisions of
this Court. It would, at this stage, be appropriate to make a reference to some
of the observations made.
9.
In
the case of Ram Chandra Singh Vs. Savit ri Devi & Ors.1 this Court considered
the issue as to whether an application for clarification/modification would be maintainable
in the face of the provisions contained in Article 137 and Order XL Rule 1 of Supreme
Court Rules. Upon consideration of the entire issue, it was observed as
follows:- "It is now well settled that an application for clarification or
modification touching the merit of the matter would not be maintainable. A Court
can rehear the matter upon review of its judgment but, therefore, the procedure
laid down in Order 40 Rules 3 and 5 of the Supreme Court Rules, 1966 as also Article
137 of the Constitution are required to be complied with as review of a
judgment is governed by the constitutional as well as statutory provisions. ..........................................
"
The prayer of the
applicant is that apart from the corrections which are required to be made in the
judgment, as noticed hereinbefore, the merit of the matter may also be considered,
inter alia, with reference to the pleadings of 1 2004 (12) SCC 713 the parties.
Such a course of action, in our opinion, is not contemplated in law. If there
exist errors apparent on the face of the record, an application for review would
be maintainable but an application for clarification and/or modification cannot
be entertained unless it is shown that the same is necessary in the interest of
justice. An application which is in effect and substance an application for review
cannot be entertained dehors the statutory embargo contained in Order 40 Rules
3 and 5 of the Supreme Court Rules, 1966."
10.
I
am of the considered opinion that the present application would be an abuse of the
process of the Court as it seeks to camouflage an application for Review as an application
for modification. In my opinion, such a course ought not to be encouraged. It
would be relevant to notice the observations made by this Court in paragraph 16
of the judgment in the case of Delhi Administration Vs. Gurdip Singh Uban &
O rs.2 . "16. At the outset, we have to refer to the practice of filing review
applications in large numbers in undeserving cases without properly examining whether
the cases strictly come within the narrow confines of Rule XL of the Supreme Court
Rules.
In several cases, it has
become almost everyday experience that review applications are filed
mechanically as a matter of routine and the grounds for review are a mere reproduction
of the grounds of 2 2000 (7) SCC 296 32 special leave and there is no
indication as to which ground strictly falls within the narrow limits of Rule XL
of the Rules. We seriously deprecate this practice. If parties file review
petitions indiscriminately, the time of the Court is unnecessarily wasted, even
it be in chambers where the review petitions are listed. Greater care,
seriousness and restraint is needed in filing review applications."
11.
In
my opinion, ten years down the line, the situation is even worst than what is
depicted by the aforesaid observations. Now we are facing an almost daily practice
of having to consider applications for "modification and
clarification".
12.
In
the aforesaid judgment, this Court also considered the nature and scope of the
jurisdiction to review its own order/judgment. Since the application herein has
been described as an application for "modification", it would be
necessary to notice the observations made by this Court in Paragraph 17 and 18
of the judgment. The observations of this Court are as under:- "17. We next
come to applications described as applications for "clarification", "modification"
or "recall" of judgments or orders finally passed. We may point out
that under the relevant Rule XL of the Supreme Court Rules, 1966 a review application
has first to go before the learned Judges in circulation and it will be for the
Court to consider whether the application is to be rejected without giving an
oral hearing or whether notice is to be issued.
Order XL Rule 3
states as follows:"3. Unless otherwise ordered by the Court, an
application for review shall be disposed of by circulation without any oral arguments,
but the petitioner may supplement his petition by additional written arguments.
The Court may either dismiss the petition or direct notice to the opposite party...."In
case notice is issued, the review petition will be listed for hearing, after
notice is served. This procedure is meant to save the time of the Court and to preclude
frivolous review petitions being filed and heard in open court. However, with a
view to avoid this procedure of "no hearing", we find that sometimes
applications are filed for "clarification", "modification" or
"recall" etc. not because any such clarification, modification is indeed
necessary but because the applicant in reality wants a review and also wants a
hearing, thus avoiding listing of the same in chambers by way of circulation.
Such applications, if
they are in substance review applications, deserve to be rejected straight away
inasmuch as the attempt is obviously to bypass Order XL Rule 3 relating to circulation
of the application in chambers for consideration without oral hearing. By describing
an application as one for "clarification" or "modification",
-- though it is really one of review - a party cannot be permitted to circumvent
or bypass the circulation procedure and indirectly obtain a hearing in the open
Court. What cannot be done directly cannot be permitted 34 to be done indirectly.
(See in this connection a detailed order of the then Registrar of this Court in
Sone Lal v. State of U.P deprecating a similar practice.)
We, therefore, agree with
the learned Solicitor General that the Court should not permit hearing of such an
application for "clarification", "modification" or "recall"
if the application is in substance one for review. In that event, the Court
could either reject the application straight away with or without costs or
permit withdrawal with leave to file a review application to be listed
initially in chambers."
13.
These
observations leave no manner of doubt that the Court should not permit hearing of
such an application for "clarification", "modification" or "recall"
if the application is in substance one for review. It is clearly indicated that
in those circumstances the Court could either reject the application straight away
or permit withdrawal with leave to file a review application to be listed
initially in chambers.
14.
Examined
on the touch stone of the observations made above, I am of the considered
opinion that the application herein though described as an application for
modification is in substance more in the nature of a Memorandum of Appeal. At
best, it could be said to be in substance an Application for Review. It
certainly does not lie within the very narrow limits within which this Court would
entertain an application for modification.
15.
In
yet another case of Zahira Habibullah Sheikh & Anr. Vs. State of Gujarat
& Ors.3 this Court, faced with a similar situation, had this to say : "The
petition is in essence and substance seeking for a review under the guise of making
an application for direction and modification apparently being fully aware of the
normal procedure that such applications for review are not, unless the Court
directs, listed for open hearing in Court, at the initial stage at least, before
ordering notice to the other side and could be summarily rejected, if found to
be of no prima facie merit.
The move adopted in itself
is unjustified, and could not be countenanced also either by way of review or
in the form of the present application as well. The nature of relief sought, and
the reasons assigned are such that even under the pretext of filing a review such
an exercise cannot be undertaken, virtually for rehearing and alteration of the
judgment because it is not to the liking of the party, when there is no
apparent error on record whatsoever to call for even a review. The said move is
clearly misconceived and nothing but sheer abuse of process, which of late is found
to be on the increase, more for selfish reasons than to further or strengthen
the 3 (2004 (5) SCC 353) cause of justice.
The device thus adopted,
being otherwise an impermissible move by mere change in nomenclature of the applications
does not change the basic nature of the petition. Wishful thinking virtually based
on surmises too, at any rate is no justification to adopt such undesirable practices.
If at all, it should be for weighty and substantial reasons and not to exhibit
the might or weight or even the affluence of the party concerned or those who
represent such parties when they happen to be public authorities and
institutions.
16.
This
Court approved the observations made in the case of Gurdip Singh Uban (supra) and
observed that what cannot be done directly cannot be permitted to be done
indirectly. The Court should not permit hearing of such an application for "clarification",
"modification" or "recall" if the application is in
substance a clever move for review.
17.
These
observations were reiterated in the case of A.P. SRTC & Ors. Vs. Abdul
Kareem 4. This Court observed that the petition was in essence and substance
seeking for a review under the guise of making an application for direction and
modification apparently being fully aware of the normal procedure that such
applications for review are not, unless 4 2007 (2) SCC 466 37the Court directs,
listed for open hearing in Court, at the initial stage at least, before ordering
notice to the other side and could be summarily rejected, if found to be of no prima
facie merit. The Court further observed that such a move ought not to be
countenanced.
The move was clearly
misconceived and nothing but sheer abuse of process, which of late is found to be
on the increase, more for selfish reasons than to further or strengthen the
cause of justice.18. To be fair, it must be noticed that the learned Attorney General
appearing for the Union of India had relied on a number of judgments in support
of his submissions that the Court would have inherent powers to modify its own order/judgment.
The primary judgment relied upon by the learned Attorney General is in the case
of S. Nagaraj & Ors. Vs. State of Karnataka & Anr.5. I am of the
considered opinion that the aforesaid judgment would be of no assistance to the
submissions made by the learned Attorney General.
The aforesaid
judgment was rendered in the background of very peculiar facts. It would appear
that this Court 5 1993 (Supp.4) SCC 595 38had passed an order having far
reaching consequences and pre-judicially affecting the rights of other groups
of employees under Articles 14 and 16 of the Constitution of India. The order had
permitted backdoor entry of thousands of stipendiary graduates because of the
negligence of the State in putting correct facts before the Court. The Government
seemed to have woken up after considerable damage had already been done and
moved an application for modification/clarification of the order dated 30th October,
1991.
The learned Attorney
General placed strong reliance on the observations made by this Court in
Paragraph 18, 19 and 36 of the judgment in support of the submission that the
Court should not decline to review its orders when it is brought to the notice
of the Court that it would be in the interest of justice to modify the same. In
order to appreciate the submission of learned Attorney General, it would be
appropriate to notice the observations made by this Court in Paragraphs 18, 19
and 36 of the judgment, which are as under:- "
18.
Justice
is a virtue which transcends all barriers. Neither the rules of procedure nor
technicalities of law can stand in its way. The order of the Court should not be
prejudicial to anyone. Rule of stare decisis is adhered 39for consistency but it
is not as inflexible in Administrative Law as in Public Law. Even the law bends
before justice. Entire concept of writ jurisdiction exercised by the higher
courts is founded on equity and fairness.
If the Court finds that
the order was passed under a mistake and it would not have exercised the jurisdiction
but for the erroneous assumption which in fact did not exist and its perpetration
shall result in miscarriage of justice then it cannot on any principle be precluded
from rectifying the error. Mistake is accepted as valid reason to recall an
order. Difference lies in the nature of mistake and scope of rectification, depending
on if it is of fact or law. But the root from which the power flows is the
anxiety to avoid injustice. It is either statutory or inherent.
The latter is available
where the mistake is of the Court. In Administrative Law the scope is still wider.
Technicalities apart if the Court is satisfied of the injustice then it is its constitutional
and legal obligation to set it right by recalling its order. Here as explained,
the Bench of which one of us (Sahai, J.) was a member did commit an error in placing
all the stipendiary graduates in the scale of First Division Assistants due to
State's failure to bring correct facts on record. But that obviously cannot
stand in the way of the Court correcting its mistake. Such inequitable consequences
as have surfaced now due to vague affidavit filed by the State cannot be permitted
to continue.
19.
Review
literally and even judicially means re-examination or re-consideration. Basic philosophy
inherent in it is the universal acceptance of human fallibility. Yet in the
realm of law the courts and even the statutes lean strongly in favour of finality
of decision legally and properly made. Exceptions both statutorily and
judicially have been carved out to correct accidental 40mistakes or miscarriage
of justice. Even when there was no statutory provision and no rules were framed
by the highest court indicating the circumstances in which it could rectify its
order the courts culled out such power to avoid abuse of process or miscarriage
of justice.
In Raja Prithwi Chand
Lal Choudhury v. Sukhraj Rai the Court observed that even though no rules had been
framed permitting the highest Court to review its order yet it was available on
the limited and narrow ground developed by the Privy Council and the House of
Lords. The Court approved the principle laid down by the Privy Council in Rajunder
Narain Rae v. Bijai Govind Singh that an order made by the Court was final and
could not be altered: "... nevertheless, if by misprision in embodying the
judgments, by errors have been introduced, these Courts possess, by Common law,
the same power which the Courts of record and statute have of rectifying the
mistakes which have crept in ....
The House of Lords
exercises a similar power of rectifying mistakes made in drawing up its own judgments,
and this Court must possess the same authority. The Lords have however gone a step
further, and have corrected mistakes introduced through inadvertence in the details
of judgments; or have supplied manifest defects in order to enable the decrees to
be enforced, or have added explanatory matter, or have reconciled inconsistencies."Basis
for exercise of the power was stated in the same decision as under:
"It is
impossible to doubt that the indulgence extended in such cases is mainly owing
to the natural desire prevailing to prevent irremediable injustice being done
by a Court of last resort, where by some accident, without any blame, the party
has not been heard and an order has been inadvertently made as if the party had
been heard."Rectification of an order thus stems from the fundamental principle
that justice is above all. It is exercised to remove the error and not for disturbing
finality. When the Constitution was framed the substantive power to rectify or
recall the order passed by this Court was specifically provided by Article 137
of the Constitution.
Our Constitution-makers
who had the practical wisdom to visualise the efficacy of such provision expressly
conferred the substantive power to review any judgment or order by Article 137 of
the Constitution. And clause (c) of Article 145 permitted this Court to frame
rules as to the conditions subject to which any judgment or order may be reviewed.
In exercise of this power Order XL had been framed empowering this Court to
review an order in civil proceedings on grounds analogous to Order XLVII Rule 1
of the Civil Procedure Code. The expression, `for any other sufficient reason'
in the clause has been given an expanded meaning and a decree or order passed under
misapprehension of true state of circumstances has been held to be sufficient ground
to exercise the power.
Apart from Order XL
Rule 1 of the Supreme Court Rules this Court has the inherent power to make
such orders as may be necessary in the interest of justice or to prevent the abuse
of process of Court. The Court is thus not precluded from recalling or reviewing
its own order if it is satisfied that it is necessary to do so for sake of
justice.36. There is yet another circumstance. The question is, whether this Court
should enforce the 1982 Rules as 42amended in 1987. The 1987 amendments have
the effect of smuggling in thousands of persons into Government service by a back-door
- without complying with the requirements of Articles 14 and 16.
One can understand the
rules as framed in 1982, but it is extremely difficult to appreciate or
understand the reasons for which the 1987 amendment was brought in. The question,
to repeat, is whether this Court should extend its arm -- its discretionary power
under Articles 136 and 32, as the case may be, to implement such unconstitutional
rules and help these persons to gain a back-door entry into Government service --
that too at the highest level in group `C' services straightaway. It is true that
no one has questioned the 1987 amendments. The petitioners do not question them
because they are advantageous to them; they want them to be implemented.
The Government cannot
and does not question them because it has itself made them. The parties who are
affected namely the persons awaiting employment under the Government probably do
not even know what is happening. But where an unconstitutional provision of such
vast impact is brought to the notice of this Court and it is asked to enforce
it, it is the constitutional duty of this Court to refuse to do so. I am, therefore,
of the firm opinion that this Court should refuse to make any orders directing implementation
of the rules as amended in 1987. The proper direction would be to direct the absorption
of the S.Gs. in accordance with the 1982 Rules as originally framed (i.e.,
without reference to the 1987 amendments) and to the extent provided therein.
Of course those S.Gs.
who have been absorbed already into group `C' service in accordance with the
said rules will remain unaffected since disturbing them, without notice to them
and in view of all the circumstances of this case, may not be advisable. All
those S.Gs. who have not so far been absorbed in group `C' service shall continue
in the present status, drawing Rs 960 per month. They will be entitled for
absorption in group `C' posts only in accordance with the 1982 Rules, without
reference to the 1987 amendments."Relying on these observations, learned Attorney
General, submits that the Court should regardless of any technical objections
proceed to hear the present application without insisting that the applicant
should seek its relief in an application for review.
19. I am of the considered
opinion that the facts and circumstances highlighted in the present application
would not enable the applicant to satisfy the conditions under which this Court
exercised its inherent jurisdiction in the S. Nagaraj's case (supra). A perusal
of the judgment would clearly show that the Court was anxious to "even the
balance". On the one side, there were orders of the Court passed on vague and
incomplete affidavit, creating rights and hopes in favour of five thousand
stipendiary graduates to be absorbed as First Division Assistant, and on the
other hand, there were others, the likely injustice to whom had been
highlighted in the affidavit filed by the Government and in the writ 44petition
filed by different sections of the employees.
The Court in fact
emphasised the principle of finality of orders and binding nature of directions
issued by the Court which could only be overridden, if there is injustice
inherent in the situation (see Page 615, Para 14 e & f). A little later in
the judgment, in Paragraph 16, the Court observed as follows:- "16. "Mere
eligibility was not sufficient unless availability of posts was also
established. In absence of posts and due to equitable considerations arising in
favour of other employees the practical difficulty in appointing all the five
thousand stipendiary graduates as First Division Assistants appears to be
insurmountable. Even so we have no hesitation in saying that we would have refused
to modify our order dated October 30, 1991 at the instance of the Government
but the Court cannot be unjust to other employees." (emphasis supplied)
20.
These
observations make it abundantly clear that the Court was dealing with a
particularly unsavory situation created by the Government which had led to insurmountable
difficulties and possible injustice to both the stipendiary Magistrates and other
employees. The Court, therefore, observed that but for this unique situation, it
would have refused to modify the order dated 30th October, 1991. In Paragraph
18, the Court makes it clear that the order was passed under a mistake. The
Court would not have exercised its jurisdiction but for the erroneous
assumption, which in fact did not exist. In Paragraph 36, again, it is
reiterated by the Court that it would be the duty of the Court to rectify,
revise and recall its orders as and when it is brought to its notice and
certain of its orders were based on wrong or mistaken assumption of facts and that
implementation of those orders would have serious consequences.
21.
In
my opinion, in the present case, there is no question of mistaken facts, being
presented by anyone to the Court. The application also fails to indicate any
miscarriage of justice or injustice which would be caused to any particular class.
The other authorities cited by the learned Attorney General followed the judgment
in S. Nagaraj's case (supra) and would not advance the cause of the applicant
or Union of India any further.
22.
The
judgment in Gurdip Singh Uban's case (supra) rather supports the writ petitioner
as noticed in the earlier part of this order. The learned Attorney General
further submitted that this Court would be fully justified in passing the orders
in exercise of its inherent jurisdiction under Article 142 of the Constitution
of India. It can always correct its non errors brought to its notice either by
way of a review petition or ex debito justitiae. In support of the submission, the
learned Attorney general has relied on judgment of this Court in the case of
A.R. Antulay Vs. R.S. Nayak & Anr.
23.
In
my opinion, the aforesaid judgment was also delivered in view of the peculiar
circumstances of the case. The Court therein set out the circumstances in which
this Court can pass the appropriate orders unhindered by technical rules. The
observations made in paragraph 48, which are of relevance, are as under : "48.
According to Shri Jethmalani, the doctrine of per incuriam has no application
in the same proceedings. We are unable to accept this contention. We are of the
opinion 6 1988 (2) SCC 602 that this Court is not powerless to correct its
error which has the effect of depriving a citizen of his fundamental rights and
more so, the right to life and liberty. It can do so in exercise of its
inherent jurisdiction in any proceeding pending before it without insisting on
the formalities of a review application. Powers of review can be exercised in a
petition filed under Article 136 or Article 32 or under any other provision of
the Constitution if the court is satisfied that its directions have resulted in
the deprivation of the fundamental rights of a citizen or any legal right of the
petitioner. See the observations in Prem Chand Garg v. Excise Commissioner."
24.
In
my opinion, the aforesaid observations would not be applicable in the facts and
circumstances of the present case. The application herein is not moved by an individual,
who had been deprived of his fundamental rights by an order dated 4th July,
2011. The application is filed by the Union of India challenging the order on various
legal and factual issues. In Antulay's case (supra), one of the grounds taken
was that the directions have been issued by the Court without following the
principle of audi alteram partem. In the present case, the directions had been
issued after hearing the learned counsel for the parties at length and on
numerous dates. These directions, in my opinion, cannot be recalled in an
application seeking only modification of the order. At this stage, it would also
not be possible to treat the present application for modification as an
application for review.
25.
In
view of the above, with utmost respect, it would not be possible to agree with
the order passed by Hon'ble Mr. Justice Altamas Kabir. In my opinion, the
applicant Union of India has failed to make out a case to enable this Court to
treat the modification application as application for review and proceed to
hear the same in open Court. In my opinion, the present application is wholly
misconceived. It is, therefore, dismissed. Union of India is, however, at
liberty to take recourse to any other legal remedy that may be available to it.
...................................J.
[Surinder Singh Nijjar]
New
Delhi;
September
23, 2011.
Ram Jethmalani &
Ors. Vs. Union of India & Ors
O R D E R
Since we have differed
in our views regarding the maintainability of I.A. No.8 of 2011 filed in W.P. No.176
of 2009, let the matter be placed before Hon'ble the Chief Justice of India,
for reference to a third Judge.
......................J.
(ALTAMAS KABIR)
......................J.
(SURINDER SINGH NIJJAR)
New
Delhi;
September
23, 2011.
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