WHAT IS WRONG IN NOT HEARING BOTH SIDES

(By K. Jagadeesh, Advocate, Ernakulam)

Mr. Kelu Nambiar, Senior Advocate is very much critical of a Judge who disposed off a case without effectively hearing the counsel for the petitioner (2003 (3) KLT Journal 33). He has given an overall account of the chair, mannerisms of the Judge, and the line of events happened in the court. Having read the manner in which the case was disposed off by the Judge, one would wonder what else would be the decision on that set of facts. There the petitioner was aggrieved by transfer and he made representation before the authority. The ordinary and normal relief would be to direct the authority to expeditiously dispose of the said representation submitted by the petitioner. The court was pleased to grant the relief as it was not opposed by the Government Pleader.   The view of the Judge was endorsed by the Government Pleader because it was only reasonable.

An advocate appearing in that court, could understand the nature of cases that were being heard. There are many cases in which such directions as given by the Judge, were prayed for. If the Judge feels that some relief is to be given, what is the impropriety therein without adverting to the detailed arguments of the counsel. What assistance of the counsels (or Senior looking counsels) would the court require to take a decision on such cases. Is the Judge bound to hear all the arguments of "middle aged senior-looking counsels (possibly a Judge in waiting)", even if it thinks that such relief could be granted without his assistance. In such a case, the formality of hearing of the petitioner and the Government Pleader is reduced to the minimum. Still if the senior looking counsel thinks that he has more to be argued, he can draw the attention of the Judge and submit the points which was left unconsidered by the Judge. The Government Pleader can also do the same. Normally no Judge will refuse to hear the counsel. On the other hand, can the middle aged senior looking counsels insist that they should be given enough opportunity to give his lectures so that he can have the satisfaction of having argued the case and presented his skills of advocacy in the court. Having regard to the backlog of cases and the rush in the court, it would be uncharitable, if any senior counsel insist for such special privileges, which is not necessary in the facts and importance of the case. In this context the number of cases heard and disposed of by the Judge assumes significance. The Judge was successful in hearing and disposing of the cases only because of his endeavour  to accomplish speedy justice in his unique manner.

Mr. Kelu Nambiar says that although the case was yet to be argued, but the decision is almost in the bag. A case although it is not argued, exist in the form of pleadings and the Judge goes through the pleadings beforehand and takes a decision on it. As the counsel, senior or junior, can only elaborate on the pleadings already made, there may be cases where argument of the counsel is found unnecessary by the Judge; especially in the illustrated case mentioned in the critique.

One thing is sure in my mind. The middle aged senior looking err have only equal status before the court, like any other counsel. The court judges the merit of the case and not the counsels who argue the case.   If the Judge gives opportunity to the senior or counsel to argue for the sake of his satisfaction, and the decision on it is the same ,it does not make any difference as regards the client. Then why should the Judge devote such valuable time of the court to satisfy the mind of a senior counsel at the cost of client and other advocates. That apart how should a Judge be concerned with the colour of the hair of the counsel rather than the merits of the case. The Senior Counsel has to elaborate.

PARTY - IN - PERSON IN COURTS, TRESPASSERS?

(By Varghese P. Thomas, Advocate, High Court of Kerala. Cochin)

This question is lurking in my legal thought after going through several decisions reported in journals. One of the main cases reported is 1994 (2) KLT 620 wherein the party in person before the District Court at Pathanamthitta argued the matter before the Division Bench in M.F.A. No.561/93 and he succeeded. The defeated party promptly filed SLP (Civil) No. 17945-46/94 through Senior Counsel before the Honourable Supreme Court and the party in person appeared before the Supreme Court and the said SLP were dismissed in his favour. This party in person appeared earlier in a case before the High Court of Judicature at Madras against the acquittal under S .256( 1) of Code of Criminal Procedure and succeeded and it is reported in 1984 Madras Law Journal (Crl.) 692. It seems that the counsel who appeared for the respondents then was now seems to be the sitting Judge Mr. Justice M. Karapangavinayakam. The latest case argued by the party in person forhis close relative is a reported decision in 1999 (3) SCC 614 as the power of attorney holder.

This party in person when appeared before one of the small causes court at Chennai, a group of young advocates, some of them inabriated, protested to the Learned Judge for his sitting on a Bench stating that "it was meant for advocates only". According to him, the learned Judge remained a silent spectator and he walked out of the court after telling that it is the fundamental right to be seated in court, being a Hon'ble citizen of the country. He filed a Writ Petition under Art.226 of the Constitution "praying for the issue of writ in the nature of a declaration that a member of the public like him who is conducting a case, party-in-person, before a Civil or Criminal Court is entitled to be seated in the court and make use of the table available in the court hall and such liberties should not be interfered with or questioned by the members of the Bars". The main Grounds in support of his prayer was that "All the Courts are the creations of the Constitution of India. All the Courts are meant for the citizens of the country. All the laws are enacted for the citizens and the citizens are not for the law. Appointment of a lawyer in a legal proceeding is not a 'sine qua non'. There shall be no discrimination in view of the quality of status enshrined under Art. 14 of the Constitution of India. The famous Latin adages "Fiat justicia ruat coelleium" and "Nevibe fano justicia" - The Court is the guardian of the Constitution as well as peoples' rights. One of the first and highest duties of all Courts is to take care that the act of the court does no injury to any of the suitors. "What should be borne in mind by one and all is that lawyers are created for Courts not Courts for lawyers". This ratio reported in (K.A. Mohammed Ali v. C.N. Prasannan (AIR 1995 SC 454)) he relied.

The learned Judge who was very kind and even if paid encomium to him for his disciplined conduct, disposed of the Writ Petition heavily relying on the Division Bench decision of the Mysore High Court in (T. Venkanna v. Mysore High Court, reported in AIR 1973 Mysore 127) inter alia holding thus:- "Litigants/parties appearing in person before Courts for their own causes cannot claim the same privileges/rights being given to the members of the Bar/ Advocates and they cannot occupy/use the chairs, tables provided for the advocates......."

Being aggrieved he filed Writ Appeal No.2262 of 2003 and the Division Bench presided over by the Hon'ble Chief Justice of the Madras High Court was pleased to allow the appeal by Judgment dated 29.7.2003 (see 2003(3) KLT Major K. Mathews v. RegistrarMad.)(SN) 122) inter alia holding thus in Para 2. "................There cannot be any doubt that the appellant even as a party in person is entitled for the same treatment as any member of the Bar and he is entitled to pursue his legal remedies which include the filing of the cases and arguing before Courts…….”

In the last paragraph of the judgment the Honourable Court observed as follows:

"Hence, we dispose of this Writ Appeal modifying the order of the learned Single Judge stating that the appellant shall be entitled for the seat meant for the Bar, if the seats are not occupied by the Bar and no Court shall deny the appellant's right to address the Court uninhibited by any circumstance. But, we make it clear that this cannot enable the appellant to claim a seat which is occupied by a Member of the Bar, as of right. In fact, no positive direction as sought for by the appellant can be given, and suffice it to say that each court before whom the appellant appears as a party in person shall consider the aspect in accordance with the above legal principles."

In the above circumstances many persons appear as party in person before the court have a wrongful claim that they have got the fundamental right to be seated along with the members of the bar in the court. The proceedings in the court is not meant for any torn, dick and harry walking on the road. But by virtue of inherent adoration for our judiciary by the party-in-person, the court will read and observe the grievances of the party. It is bounden duty of the party in person to present a good case worth of adjudication by the Bench. Better, tolerance of the court is not expected to test by the party-in-person.

(ix) to provide that, for purposes of enforcement of foreign awards, every arbitral award made in a country to which one of the two International Conventions relating to foreign arbitral awards to which India is a party applies, will be treated as a foreign award.

Arbitration has to be looked upto with all earnestness so that the litigant public has faith in the speedy process of resolving their disputes by this process.

The success of the institution of arbitration like a judicial institution depends upon the faith the institution could create and establish in the mind of the public. Faith of the public depend upon the character, credibility, impartiably and uprightness of the persons who are called upon to arbitrate. It is the dedication and devotion of the arbitrator to the cause he is called upon to arbitrate with the proverbial judicial aloofness from the parties and the quickness of perception and perfection, exactitude and uprightness in the disposal of the cases that could bring image, reputation and popularity to the institution of arbitration.

I know of cases where parties to arbitration having fed up with arbitrator have settled the cases by themselves!!

I know of Judicial and quasi judicial authorities and beaurocrats of proven ability, integrity, impartiality, uprightness proving otherwise in positions they hold after retirement. The attitude and reaction of the public to the reports and findings of Commissions held by retired Judicial and quasi judicial authorities and beaurocrats are not very happy.

If institutions like the Indian Institute of Arbitration and Mediation could create the necessary climate/atmosphere in which an arbitrator whether a lawyer, retired judicial or quasi judicial authority, beaurocrat or engineer or Chartered Accountant could be looked upon with all earnestness so that the litigant public has faith in the institution of arbitration, the institution can be a proper and efficient alternative for the judiciary.

Though the general deterioration in standards have effected the judiciary as well as other institutions, still people in India and world over look upon judiciary functioning in democratic countries as the best institution that could be depended upon/relied upon.

Though arbitration is an alternative, it cannot be a substitute for the judiciary. Even to become an effective alternative, the arbitrator whether a lawyer, retired judicial or quasi judicial authority or beaurocrat should have the great qualities of a sitting Judge-impartiality, integrity, rectitude, uprightness and courteous behaviour and the preparedness and patience to learn and listen.

LAWYERS FAVOURITE WEBSITES - 2004

(By P.B. Sahasranaman, Advocate)

CAUSE LIST OF KERALA HIGH COURT

http://causelists.nic.in/kerala/indexl.html.From this site you can obtain the cause list of theKerala High Court directly. You can search the cause list of daily cases by lawyer wise, courtwise. Weekly list as well as important notices of the court are also available.

KERALA HIGH COURT

http://highcourtofkerala.nic.in/Thisis the official web site of Kerala High Court from whereyou can obtain the information about the High Court.

SUPREME COURT OF INDIA

http://courtnic.nic.in/Thisis an official site. You can check the position of the cases in SupremeCourt of India. Interim orders are also made available in the site Daily listing of cases. The otherHigh Courts can also be approached through this site.

KERALA GOVERNMENT

http://www.keralagov.com/This is the official site of Kerala Government on which a lot ofGovernment documents are made available.

LAW COMMISSION OF INDIA

http://lawcommissionofindia.nic.in/This site contains all reports of the Law Commission madeso far. You can also interact with them on certain matters.

KERALA STATE POLLUTION CONTROL BOARD

http://www.keralapcb.org/Thissite provides information about the procedures to he adoptedfor obtaining licence and several forms are available for making applications. This is the official site.

MANUPATRA

http://www.manupatra.com/asp/home.aspThissite is a very useful site for lawyers. It is a paysite. But certain details are available.

RESERVE BANK OF INDIA

http://www.rbi.org.in/Thisis the official web site of the RBT where the circulars issued by themare available. If you subscribe they will send you the said circulars in advance.

SUPREME COURT ON LINE

http://www.supremecourtonline.com/.This is a free site from where you can search and getjudgments of the Supreme Court of India free of cost.

SUPREME COURT OF INDIA

http://www.supremecourtcaselaw.com./Thisis a pay site where the judgments are unloadedimmediately on the next day. Subscriber will be intimated daily about the uploading of the judgments.

SUPREME COURT OF UNITED STATES

http://www.sunremecourtus.gov/This is the official site of the Supreme Court of US. Sitecontains more on the Court.

FAIRNESS IN GOVERNMENT CONTRACTS

(By Pauly Mathew Muricken, Advocate, Ernakulam)

The expectations of the State's involvement in the field of trade and commerce and the concomitant range of its economic and commercial activities has led to the emergence of the theory of Contracting Out', which is basically a U.S. Doctrine. As a result, in almost all legal systems, many public functions forming part of the governmental functions are now being performed by the Government through private organisations under Government contracts, through the process of contracting out. It has several relative advantages. It stimulates efficiency, keeps the costs down by using improved management methods, prevents time and cost overruns in the projects, maintains quality and cost benefit ratios and ultimately provides an opportunity to private bodies to take part in the achievement of national constitutional goals.

Government in the current century is identified as the repository of wealth. It pumps and distributes wealth into the economy in the forms of money, benefits, services, licenses, contracts, etc. Government contract is now seen as the major means by which executive functions of the State is performed by the Government. Naturally, there arises the need to streamline and regulate the arena of Public contracts or Government contracts through constitutional and legal measures. Ideal thing is to regulate it both by the Law of Contract as well as by the principles of Administrative Law.

A Government contract is a privilege or largesse. Unlike a private individual who has freedom to decide with whom to contract and on what terms and conditions to contract, the Government has to use its contracting power in public interest. The Government cannot be equated with an individual in the matter of selection of the recipient for its largesse. It has the duty to stabilise the obligations and party positions. While deciding with whom to contract, it has to provide equal opportunities to all competent in such a privilege. Government cannot adopt a policy of pick and choose' or act arbitrarily at its sweet will while deciding with whom to contract. The outweighing consideration in choosing the party and terms of the contract shall also be to maximise public interest. The settled procedures for contracts by public bodies will have to be scrupulously followed, on pain of invalidation, in violation of them. In other words, Government should be mindful of the vitarallian standards', while choosing the party and formulating the terms of the contract.

In India, Government contracts are governed by Art.299 of the Constitution, which provides for the procedural requirements of contracts entered into by virtue of the executive power of the Centre or State. Three conditions have been laid down therein as the criteria for determining the validity of the contract. They are (1) that all contracts be expressed in the name of the President or Governor as the case may be, (2) that all contracts be executed on behalf of the President or Governor as the case may be, and (3) that all contracts be executed by such persons and in such manner as the President or Governor may direct or authorise.

The law governing Government contracts in India has undergone sweeping changes since the decision in International Airport Authority's case (AIR 1979 SC 1628) broadening the ambit and scope of judicial review in contractual matters. Formerly, it was viewed only from a private law angle under the law of contract, whereby the contracting parties, namely the Government and individuals were considered alike private individuals. The expected judicial practice now seems to be to interfere in order to prevent arbitrariness, favouritism, nepotism, corruption and discrimination, although there are inherent limitations in the exercise of power of judicial review in this arena. Arbitrariness is an antithesis to rule of law, equity, fair play and justice. (Lakshmi Precision Screws Ltd. v. Ram Bhagat (2002) 6 SCC 552 at P.561). Courts also interfere, if the contract results in prejudice to the State and involves loss of revenue and also in circumstances when the decision of the Government or its instrumentality in the matter of selection of the recipient for its largesse is actuated by extraneous considerations or is opposed to fair play or when the State is shown to have conferred undue benefits upon undeserving party. Equally fatal is the award of contract to a tenderer who at the time of submission of the tender did not satisfy the tender conditions. {Monarch Infrastructure (P) Ltd. v. Commissioner, Whasnagar Municipal Corporation (2000) 5 SCC 287)).

In awarding contracts, rules and instructions must be complied with by the Government scrupulously in order to avoid discrimination, arbitrariness and favouritism which are opposed to rule of law and constitutional values. Adherence to the rules is the best method of protection of public interest, Therefore, relaxation of the rules/conditions in favour of a particular bidder is not permissible, unless expressly provided for in the rules. (West Bengal State Electricity Board v. Patel Engineering Co. Ltd. (2001) 2 SCC 451)).

A Writ Petition under Art.226 is maintainable only for the enforcement of a binding contract, and not for the enforcement of a contract-qua-contract, for which the proper remedy is to institute a suit for damages or for specific performance as the case may be, as it creates only a private right and does not create a duty recognized by public law, to be enforced by the issuance of writ of Mandamus. The relevant consideration is not whether the person against whom relief claimed is State or public authority but whether what is enforced is statutory duty or sovereign obligation or a public function of public authority invested with statutory power.

Courts, while examining Government contracts, seems to have been moving by the consideration that Government, being the guardian of the finance of the State, is expected to protect the financial interest of the State. Courts justify its interference by relying on the principles of reasonableness, non-arbitrariness and fairness. No doubt, contract making is an expert job and courts with no such expertise ought not to substitute its view for that of the experts and it cannot venture to adjudicate on matters of commercial or technical prudence, as in the case of price fixation, where fairness or reasonableness cannot be logically assessed by the Courts. Where it interferes, Courts are not concerned with the merits of the decision but is only concerned with how that decision has been made and the Courts examine this issue purely on questions of legality, rationality and procedural propriety. The process starting from invitation of the tenders till its culmination should therefore be transparent and fair and that it must be free from arbitrariness, bias or mala fides.

The State in a welfare economy has a wider role to play, not merely laissez faire or police, but to perform the diverse roles as the regulator, provider, protector and entrepreneur. Undoubtedly, State is perfectly entitled to enter into a contract with a private party and it can choose a person to its liking for the performance of the contract. Government contracts are looked upon as the means to provide the welfare of the community. Auction and tenders are chiefly adopted and accepted as the rule and negotiation is resorted to only in rare cases, when auction and tenders are not feasible. For non-compliance of the normal procedures, arbitrariness cannot be presumed in all cases, as held by the Apex Court in Netai Bag v. State of West Bengal ((2000) 8 SCC 262).

Judicial review on Government contracts is permissible both from the perspective of its terms and conditions and also on the count of the parties. Every decision to enter into a contract by the Government with private individual is administrative and so, can also be impeached on the ground of violation of the rule of fairness or for other reasons having its footing under Art. 14 of the Constitution. No hard and fast rule can be laid to mark whether writ jurisdiction is an appropriate remedy or not, where the contract has a statutory basis. It will depend upon the nature of the rights, whether the dispute involves assessment of damages or some other positive action on the part of the Government, the extent of the statutory regulations, the existence of administrative appeals and other factors.

The 'rule of fairness' or fair play in action is a direct and collateral ground for attacking Government contracts, as the duty to act fairly applies to every administrative function. It is a public law element to be present and visible in every Government contract and to be followed with alacrity. Fairness is an essential component of the principle of natural justice and natural justice is nothing but fairness writ large and judicially (Administrative Law, William Wade, 8^,h edition, at page 486). It is the established law that the rule of fairness must pervade every administrative action, statutory or contractual and must be allowed to operate in every field unless its operation is excluded by express provisions or by necessary implication. In Council of Civil Service Unions (1985) AC 374 at 407, Lord Scarman extended natural justice to include the duty to act fairly and held that it is required of a purely administrative act. Duty to act fairly also means the duty of acting with substantial fairness and consistency. It also means that the contracting process should be free from bias or caprice and the parties to contract must act honestly. Nowadays, fairness is enforced as an implied statutory requirement and its failure means that administrative act is outside the statutory power, unjustified by law, ultra vires and void.

It is the rule that every administrative action involving civil consequences should be tested on the touchstone of the rule of fairness. Principle of fairness may require that Government shall afford hearing before it takes an action against a contractor such as cancellation, termination, blacklisting or before it takes an action which is penal in nature, such as appropriation of claims under the contract or withholding of earnest money or security deposit. However, in emergency situations, the requirement of hearing will have to be substituted by equally efficacious alternate remedies in the form of post decisional hearing, for advancing the general interest of the public rather man safeguarding the rights of an individual contractor. Such situations may arise in respect of contract works performed as part of Flood relief, Farming relief, Defence requirements, etc. In such like situations, Government is always competent to make pragmatic adjustments.

Rule of fairness may also require the Government not to sit as the Judge to decide on a dispute in which it is a party, instead of getting the same adjudicated by an independent body. It may also insist that the legitimate expectations of a contracting party shall not be affected by an administrative act. Fairness of rule shall be followed in procedural matters of contracts also. The requirement of reasons also form part of the rule of fairness and every decision causing injury or having the tendency to cause injury to a party must be supported with reasons. Therefore, every tenderer who has submitted tender duly complying with all necessary procedural requirements has a right to insist for reasons why his tender which shall ordinarily be accepted was rejected. Non obstante power conferred on authorities to reject the highest tender without assigning any reasons will only have to be pronounced as ultra vires. Fairness insists the authorities to follow meticulously the principle of equality enshrined in Art. 14. The power of State under Art.298 is circumscribed by Art. 14. Therefore, it cannot exclude persons arbitrarily or treat citizens with discrimination. The acceptance of tender is subjected to equality clause and the rules of reasonableness and non-arbitrariness. However, it will be appropriate for the Government to lay down/adopt a policy in public interest and envisage a reasonable classification between the contractors either with regard to the qualifications or with regard to the procedural requirements/conditions, aiming to boost the State's economy.

In the modern era, there are situations when the State agency perform functions as an individual and as the Government. The first category is considered as purely commercial and the latter category as Governmental. The United States Courts have embarked upon such a distinction. Such a distinction may be relevant for purposes like determination of the jurisdiction and for deciding the substantive law to be applied and for nothing more. For other purposes, such a distinction seems to be unnecessary and unrealistic. Unlike the U.S. Courts, Courts in India are seen to be distinguishing between contracts having statutory basis and contracts lacking statutory basis and rule of fairness is seen insisted upon by the Courts in India only in respect of contracts having statutory basis. Contracts lacking statutory basis entered into by the Government is visualized by the Courts only in the level of a contract entered into by a registered company or a private body and fairness is not insisted as a charter for judicial review of State actions in such cases. But as far as Government largesse is concerned, public money is involved and the State owes a duty to act fairly, in accordance with the constitutional mandate enshrined in Art.39(c) for preventing concentration of wealth and means of production to the common detriment and for its failure, judicial review must always be available. In that view of the matter, it is meaningless to draw any such distinction. But it is rather heartening to note that Courts fail to appreciate or refuse to appreciate that there can be non-statutory contracts in which public purposes are either apparent or hidden to be viewed from public law angle, as the Government is not precluded from acting with and for public purposes in ways different from those set out by legislation.