'SAIL'-ing LAMENTATION

(By C.J. Varghese, Advocate, Cherthala)

 

Sick Sick I lie in bed

'Lamenting' my lost land

At seventy-three I woke at "SAIL-struck"

To furnish security for closed decree

 

Still I lament on my land

 

Younger days I dreamed

Rights in my own property

Indian Constitution guaranteed

Bought lands I, spending whole assets

 

Still I lament on my land

 

Seeds I brought, sowed, nourished,

Fruits bearing trees owned by me

I "land lord" a dream comes true

Relaxed and relaxed to retire

 

Still I lament on my land

 

'Compulsory acquisition' for public good

Object is tourism development

Notification came in Gazette

Measured my land in Ares

 

Still I lament on my land

 

Went I hastily to lawyer

No chance to protect land,

Course open to compensation

At the hands of LA officer

 

Still I lament on my land.

 

Consumed I years at LA office

Produced valuation certificate

Obtained similar sale deeds

Spent my retirement benefits

 

Still I lament on my land.

 

Paltry sum, fixed market value

Date of notification quite unknown

Years later received I a cheque

Q-ed treasuries waiting its ban lift.

 

Still I lament on my land

 

Lawyer pronounced 'rush to court’

Another decade spent at court

Verdict came in my favour

Approach "execution" for money

 

Still I lament on my land.

 

Ended decree in satisfaction

E.P. Closed I got decree-amount

Unable to own another land

Money lost for medicine

 

Still I lament on my land

 

Come SAIL before my sail to Lord

Natural justice upholder

Restart legal fight with another

Pious is not Law Courts.

 

Still I lament on my land

 

Natural justice heard I not

Verdict comes from highest court

Furnish security for money received

Sick in bed I pray Lord

 

May not give right in property

 

A landlord laments on 1995 (2) KLT 683 - Steel Authority of India Ltd v. State of Kerala

 

PIL -- Why Allergic to Service Matters Alone:

A Study With Reference to Case Laws

 

(By Abraham Vakkanal & Paul A. Vakkanal, Advocates, High Court, Ernakulam)

 

Public Interest Litigation has taken deep roots in the justice delivery system in India and it has come to occupy an important field in the administration of law. In the present day set up, the avoidance of which or an allergic attitude to one of it’s branches, may only result in injustice. The misuse of PIL by some unscrupulous persons cannot justify a ‘total’ eradication of it from a particular field. To deny access to genuine service matters or to cases incidentally involving service law aspects, through PIL, will result in undeserved success to manoeuvrers, manipulators and ill-motivated undesirables over the helplessness of many deserving class of persons and to a certain extent, over the society as a whole. So, it may not be desirable to impose a total ban on PIL in service matters.

 

Findings in Dattaraj Thaware:

 

1. In Dattaraj Nathuji Thaware’s case1 after having noted that the Courts are flooded with a large number of so-called Public Interest Litigations, where even a minuscule percentage can legitimately termed as Public Interest Litigations, a Two Judge Bench of the Supreme Court headed by Arijit Pasayat, J. has observed as under:

 

“Though in Duryodhan Sahu (Dr.) v. Jitendra Kumar Mishra. (1998) 7SCC 273, this Court held that in service matters PILs should not be entertained, the inflow of so-called PILs involving service matters continues unabated in the Court’s and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decisions”. (Emphasis supplied)

 

2. One aspect is to be stated here at once. The Supreme Court has not held so in Duryodhan Sahu as regards the jurisdiction of the Supreme Court under Art.32 and of the High Courts under Art.226. Besides, neither Dattaraj Thaware nor Duryodhan Sahu2 was a PIL on a service matter. So the question as to whether PIL is maintainable in service matters before the Supreme Court and High Courts, was not an issue at all, involved in those cases. Hence the observations made as above, can be treated only as obiter dicta. So it is misunderstanding Duryodhan Sahu that the Supreme Court has given us the above finding, though obiter, first in Ashok Kumar Pandey3 and later in Dattaraj Thaware (cited supra).

 

Decisions of the Kerala High Court based on Duryodhan Sahu:

 

3. In Faizan Kollali’s case4 a learned Single Judge of the Kerala High Court (A.K.Basheer,J.) placing reliance on Duryodhan Sahu, has held that public interest litigations in service matter should not be entertained and on that reasoning dismissed a PIL questioning the alteration of date of birth of a primary school teacher. Though not referred to in FaizanKollali, another Division Bench decision in Saleem Kumar’s case5, on similar issue, was also in existence at that time: In that case again relying on the above two Apex Court decisions in Duryodhan Sahu and Ashok Kumar Pandey, the Court said:

 

"if public interest litigations at the instance of strangers are allowed to be entertained, the very object of speedy disposal of service matters would be defeated".

 

4. Thus, the Division Bench in Saleem Kumar has not taken the extreme position of total ban, but only said that to maintain a Public Interest Litigation in service matters, the petitioner should be a person aggrieved. Speaking for the Bench, K.S. Radhakrishnan, J. has elaborated the laudable objective behind this as:

 

"Court is meant for forum for redressal only of genuine public wrong or public injury, not for the redressal of private, publicity-oriented or political disputes or other disputes not genuinely concerned with the public interest".

 

5. The Division Bench, relying on the passages in the decisions of Supreme Court, has then made certain general observations, which are not particularly confined to service matters, as given below:

 

“serpentine queues of genuinely aggrieved litigants being denied access to Court due to the admission of so-called Public Interest Litigations resulting waste of precious judicial time on admission of undeserving Public Interest Litigations.”

 

So, the objective, no doubt, is laudable. Nevertheless, the fact remains that it is relying on the obiter dicta in two Supreme Court decisions that Faizan Kollali and Saleem Kumar were decided imposing a total ban on PIL in service matters. Being obiter dicta, and consequently not law declared under Art.141, the learned Judges of the High Court would not have relied on it, if the correct principles of law on those aspects were properly highlighted before them. The suggestion here is not that obiter dicta in Supreme Court decisions can be ignored. All are aware that it is to be given its due weight. But, should it be treated as a binding precedent. The endeavour here is only to highlight some of those aspects on the basis of case law.

 

6. The scope of Duryodhan Sahu has neither been properly urged in full force before the Supreme Court in Ashok Kumar Pandey, and Dattaraj Thaware, nor before the High Court in Saleem Kumar and Faizan Kollali. The 3 Supreme Court decisions, mentioned above, are to be discussed below.

 

Details of Duryodhan Sahu:

 

7. A careful reading of Duryodhan Sahu would disclose that the question considered therein was only whether PIL is maintainable in service matters before the Central Administrative Tribunal (for short, CAT) and also the scope of jurisdiction of the said Tribunal. It also considered as to “who is a person aggrieved” under S.19 of the Administrative Tribunals Act, to file an application before the CAT. The relevant portion of the judgment in Duryodhan Sahu, delivered by Justice M. Srinivasan, for the Bench of 3 Judges, is as follows:

 

"S.3(b) defines the word “application” as an application made under S.19. The latter section refers to “person aggrieved”. In order to bring a matter before the Tribunal, an application has to be made and the same can be made only by a person aggrieved by any other pertaining to any matter within the jurisdiction of the Tribunal. We have already seen that the word “order” has been defined in the explanation to sub-s.(l) of S.19 so that all matters could be brought before the Tribunal. If in that context S.14 & 15 are read, there is no doubt that a total stranger to the service concerned cannot make an application before the Tribunal. If Public Interest Litigations at the instance of strangers are allowed to be entertained by the Tribunal, the very object of speedy disposal of service matters would get defeated”. (Stress supplied)

 

8. In this decision, the Hon’ble Supreme Court has also quoted with approval a decision of Orissa CAT, on similar lines, as follows:

 

“.....Thus, it follows that Administrative Tribunals are constituted for adjudication or trial of the disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts. Its jurisdiction and powers have been well defined in the Act. It does not enjoy any plenary powers”.

 

9. There is no comparison between the power and jurisdiction of the CAT under the Administrative Tribunals Act and that of High Court under Art.226 and of the Supreme Court under Art.32. In Duryodhan Sahu, when arguments were advanced based on S.P. Gupta6 that the concept of locus standi and scope of PIL (before the Supreme Court and High Courts) have been expanded and so the PIL in CAT also is to be held as maintainable, the Supreme Court met it by saying that,

 

“in that case (S.P. Gupta), the Court was not concerned with a Tribunal constituted under a statute”.

 

10. The Supreme Court further said:

 

“In that case, it was discussing the question of "standing" in a proceeding before the High Court or this Court and that ruling cannot help the respondents in the present case”

 

After a discussion on the other points raised, finally what the Supreme Court has held in Duryodhan Sahu, is only that,

 

“the Administrative Tribunal constituted under the Act cannot entertain a Public Interest. Litigation at the instance of a total stranger”.

 

So this is all, what Duryodhan Sahu has said, and nothing more...!

 

Ashok Kumar Pandey and its implications:

 

11. The next decision of the Supreme Court is in Ashok Kumar Pandey, wherein Duryodhan Sahu has not been understood in the correct perspective. Referring to Duryodhan Sahu, the observation made in Ashok Kumar Pandey in paragraph 16, is as under:

 

“though in Duryodhan Sahu (Dr.) v. Jitendra Kumar Mishra. this Court held that in service matters PILs should not be entertained, the inflow of so called PILs involving service matters continues unabated in the Courts and strangely are entertained. The least the High Court could do is to throw them out on the basis of the said decision”. (emphasis given)

 

12. So. the point is whether this observation is true to facts and true to the principles laid down in Duryodhan Sahu. The above observation made in Ashok Kumar Pandey on the basis of Duryodhan Sahu with great respect, is not justified. It is obvious that this has happened because the correct principles laid down in Duryodhan Sahu have not been properly highlighted or brought to the notice of the Supreme Court.

 

13. Ashok Kumar Pandey was not a service matter at all. That was a case where a stranger challenged the conviction and death sentence of an accused in a criminal case, after seeing the news about it in a T.V. channel. His prayer in that case, filed as PIL, was to reduce the convict’s death sentence to life sentence. His reasoning was that because of the non-execution of the condemned prisoner for a long time, he had suffered a great degree of mental torture. Rejecting his contentions, the Supreme Court in the judgment delivered by Justice Arijit Pasayat for the bench of 2 Judges, held that:

 

“neither under the provisions of the Code of 1973 nor under any other statute is a third party, stranger, permitted to question the correctness of the conviction and sentence”.

 

The Court further laid down the law that interference at the instances of a stranger is not called for in a case of that nature.

 

14. The reference to Duryodhan Sahu was made thereafter, though not called for, as the question decided there was only about the maintainability of PIL before CAT. Then the observation as quoted above, has also been made. But this was done by way of obiter. As stated above, the question decided in Duryodhan Sahu was in relation to the power of the CAT to entertain PIL in service matters at the instance of strangers and nothing more than that. The powers of the High Court under Art.226 or of the Supreme Court under Art.32 in entertaining PIL, were not in issue nor considered in that decision. So, the above observation in Ashok Kumar Pandey, is to be treated only as obiter, and not as a binding precedent. Here we are reminded of a passage about “obiter dicta” said by Shri.K. Ramachandran, one of the senior and learned members of the Kerala Bar, quoting a 1884 legal luminary, as under:

 

“Obiter dictum” is a gratuitous opinion and individual impertinence, whether it be wise or foolish, right or wrong, burdeneth none — not even the lips that utter it.

 

Though we scanned the pages of some Law Lexicons and other books, this type of an interesting, but blunt definition of the word, could not be found.

 

Scope of Dattaraj Thaware:

 

15. Coming to Dattaraj Nathuji Thaware, as stated above, it. was again not a PIL on service matter. It was a PIL filed by a lawyer in the Nagpur Bench of the Bombay High Court against some alleged unauthorized constructions, which were later found to be untrue. Under the guise of PIL, the said lawyer was blackmailing the builders, to get money. Later he was also caught red-handed accepting “blackmailing” money. Dealing with such a case, where PIL has been misused and which is described as “Paise Income Litigation”, the Supreme Court made the observation that it has been held in Duryodhan Sahu that in service matters PILs should not be entertained. However, this observation in Duryodhan Sahu, as stated above, is not at all justifiable.

 

16. It is true that in Ashok Kumar Pandey and Dattaraj Thaware, the Supreme Court has cautioned that PIL cases filed for personal gain or private profit or political motive or any oblique consideration shall not be entertained. Pasayat, J., in Ashok Kumar Pandey, speaking for the Bench, has also laid down the law as to when can a PIL be justified, as under:

 

“A person acting bonafide and having sufficient interest in the proceeding of Public Interest Litigation will alone have a locus standi and can approach the Court to wipe out violation of statutory provisions, but not for personal gain or private profit or politico, motive or an oblique consideration”.

 

The infraction of statutory provisions, which affects public interest, can happen in service matters also and in such circumstances, should there be a total ban in entertaining PIL in service matters.

 

Whether “Obiter dicta” binding; Discussion based on case laws:

 

17. Hence, the issue is whether the obiter dicta in the above decisions is to be treated as a binding precedent or as the law declared by the Supreme Court under Art.141, which in turn, is binding on all Courts. The law in this regard has been succinctly stated by a 3 Judges Bench, headed by Justice G.B. Pattanaik in Director of Settlements v. M.R. Appa Rao & Anr.7 as under:

 

“A judgment of the Court has to be read in the context of questions, which arose fy consideration in the case in which the judgment was delivered. An “obiter dictum” as distinguished from a ratio decidendi is an observation by the Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observations was unnecessary for the decisions pronounced, but even though an obiter may not have a binding effect as a precedent, but in cannot be denied that it is of considerable weight. The law which will be binding under Art.141 would, therefore, extent to all observations of points raised and decided by the Court in a given case”. (Underlining supplied).

 

18. It is a fact that, the observations in Ashok Kumar Pandey and Dattaraj Thaware that a PIL is not maintainable in service matters, though obiter, are made based on an earlier Supreme Court decision in Duryodhan Sahu. And it is also clear that Duryodhan Sahu has not said so, but it has been misunderstood in subsequent decisions, as the correct implications of which were not placed before the Court. But such aspects are not of any avail to bye-pass a Supreme Court decision. It has been held in Ballabhadas Mathurdas Lakhani v. Municipal Committee, Malkapur8 that a decision in a judgment of the Supreme Court cannot be assailed on the ground that certain aspects were not considered or the relevant provisions were not brought to the notice of the Court. So, when the Supreme Court decides a principle, no doubt, it would be the duty of the High Courts or subordinate courts to follow the decision of the Supreme Court. A judgment of the High Court, which refuses to follow the decision and directions of the Supreme Court is a nullity (see: Narinder Singh v. Surjit Singh9 and Kausalya Devi Bogra v. Land Acquisition Officer10).

 

19. But it is to be remembered that what is binding as the law declared under Art.141, is only the ratio decidendi in the decisions. In Krishena Kumar v. Union of India11, it has been held that the enunciation of the reason or principle upon which a question before a court has been decided is alone binding as a precedent, and the ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case, which gives rise to the decision. Another decision in the State of U.P v. Synthetics and Chemicals Ltd.12 is also relevant here, which said that a decision which is not expressed and is not founded on reasons, nor is proceeded on consideration of issue, cannot be deemed to be a law declared to have binding effect as is contemplated by Art. 141.

 

20. It has also been held in this decision that any declaration or conclusion arrived at without application of mind or proceeded without reason cannot be deemed to be declaration of law or authority of a general nature binding as precedent. The decision in Arnit Das v. State of Bihar13 is also somewhat to this effect. In this context, it is worth mentioning here the decision in Municipal Corporation of Delhi v. Gurnam Kaur14, wherein the Supreme Court has examined the provisions of Art.141, and also elaborated the meaning of the expressions “obiter dicta”, “per incurium” and “sub silentio decisions”.

 

“Obiter dicta” has been described as:

 

“Pronouncements of law, which are not part of the ratio decidendi are classified as obiter dicta and are not authoritative “.

 

The ambit of the expression “per incurium”, is given like this:

 

“a decision should be treated as given per incurium when it is given in ignorance of the terms of a statute or rule having the force of a statute”.

 

The Court explained the concept of “sub silentio”, quoting from Salmond on Jurisprudence, as:

 

“a decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind”.

 

In this decision, after explaining the phrase as shown above, the Court has held as under:

 

“Mere casual expressions carry no weight at all. Not every passing expression of a Judge, however eminent can be treated as an ex cathedra statement, having the weight of authority”.

 

Need to prevent the abuse of PIL, stressed:

 

21. It is clear that the reason to make observation by the Supreme Court against PIL in service matters, is nothing but the tendency of misutilization of PIL, which has come to occupy an important field in administration of law, as “publicity interest litigation” or "private interest litigation” or “politics interest litigation” or the latest trend "paise income litigation”. So it is true that PIL is to be properly regulated and its abuses should be averted. Otherwise, PIL will become a tool in unscrupulous hands to release vendetta and wreak vengeance. It cannot also be allowed to be used by person or a body of persons to further his/their personal causes or satisfy his/their personal grudge or enmity. It is also equally necessary that a petitioner who comes to the court for relief in public interest must come not only with clean hands like any other writ petitioner, but also with a clean heart, clean mind and clean objective, as laid down in Ramdas Foundation v. Union of India15, and K.R. Srinivas v. R.M.Premchand16. These principles are reiterated in Dattaraj Thaware also. So these ample safeguards are no doubt, to be applied in dealing with PIL, whether it is ordinary or in service matters.

 

How to filter out frivolous PIL and details of a genuine PIL recently decided:

 

22. Let all safeguards and restrictions, as suggested by Shri. Vijay Hansaria (Senior Advocate and Vice President of the Supreme Court Bar Association), in his Article on Public Interest Litigation17, to check the filing of false and frivolous PIL, be imposed. So also, the parameters and guidelines for filing PIL and awarding of exemplary costs as a measure to filter out frivolous PIL, as enumerated by Arijit Pasayat, J. in Dr.B.Singh v. Union of India & Ors.18 and also in his Lordship's, M.C.Bhandari Memorial Lecture19, be insisted on. But, our suggestion is that a total ban on PIL is not warranted or justified. A total ban may not suit or may adversely affect the justice delivery system. An eternal ban on anything ill goes with a judicial mind. Can anybody foresee that no genuine PIL will ever arise in service matters? The cases involving University Laws and relating to maintenance of high standards in higher education and research and regarding the fixation of qualification of University and college teachers, may also have repercussions in service matters. Even recently, the Supreme Court, by entertaining a PIL filed by a former Chairman of the UGC and another resident of Chhattisgarh who is concerned with the quality of education in his State, has inter alia, held in Prof. Yashpal & Anr. v. State of Chhattisgarh & Ors.20 that the interest of society requires that the holder of an academic degree possesses the requisite proficiency and expertise in the subject which the degree certifies. The Court also held that the conferment of academic degree by Universities, which do not have any infrastructure or teaching facility for higher studies or research, is against the constitutional provisions. On satisfied with the absence of those factors in the Universities under challenge in that case, the Supreme Court, then set aside the relevant provisions of the impugned Act and declared that those Universities (around 100) shall cease to exist. The issues considered there could also be termed bordering service matters as far as the rights and claims of the teachers and other staff appointed in those Universities are concerned. Still the Supreme Court entertained the PIL, and that too at the instance of two public spirited citizens like Prof. Yashpal & Anr. They were not directly affected by the provisions of the impugned Act and consequential developments. Genuine PIL cases of this nature, cannot be ruled out and should be welcomed and encouraged.

 

Gurpal Singh's case — latest decision on PIL in service matters:

 

23. The latest decision on the subject is in Gurpal Singh v. State of Punjab & Ors.21, which again is rendered by a two Judges Bench headed by Arijit Pasayat, J. This is no doubt a service matter and the Writ Petition before the High Court, was styled as “PIL”. On a careful reading, it can be seen that no special reason is given or pointed discussion is made in Gurpal Singh also justifying a total ban on PIL in service matters, except the reference made on the basis of Duryodhan Sahu and Ashok Kumar Pandey. So, it will not alter the position already arrived at supra, on the basis of discussion on earlier decisions. In Gurpal's case, the appointment of an “Auction Recorder” of a Market Committee, was set aside by the Punjab & Haryana High Court, after 14 years of that appointment. The Writ Petition was filed by his political rival, on the ground that he was convicted under the Punjab Excise Act in 1973 and therefore, he was eligible for the said appointment. This objection was looked into by the authorities and found that since no moral turpitude of any kind was involved, there was no ineligibility. In the counter affidavit, the locus standi of the writ petitioner was questioned. Contention was also raised that no public interest was involved and the case was filed because of mere political and personal rivalry. It was also pointed out that in 1981, there was a circular that only records of conviction for the preceding five years were to be taken note of before making such appointments Anyway, the High Court set aside the appointment, and directed fresh selection, for the reason; stated in the judgment, which is challenged in the Supreme Court.

 

Observations of Supreme Court in Gurpal Singh:

 

24. The Supreme Court held that a scope of entertaining PIL essentially in service matters has been examined by it in several cases. (Those could only be the decisions discussed supra) The Supreme Court then listed the factors which are to be satisfied by the Court before entertaining a PIL. Then the Court said:

 

“The Court has to act ruthlessly while dealing with imposters and busybodies or meddlesome interlopers impersonating as public spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of pro bono publico, though they have no interest of the public or even of their own to protect”.

 

It is evident that these observations made are against PIL in general and not particularly against PIL in service matters. Most of the other observations made in para 7 of the decision are also against PIL as a whole, wherein, the need to observe restraint in entertaining PIL, are stressed. Particular reference is therein made about the observations in the decision in Duryodhan Sahu and Ashok Kumar Pandey, and they are reiterated there, which have already been dealt with above.

 

25. So, it can legitimately be said that the observation in Gurpal Singh that PIL shall not shall not be entertained in service matters, is made on the basis of Duryodhan Sahu and Ashok Kumar Pandey, as discussed earlier. No further independent discussion or analysis, is seen in Gurpal-Singh, justifying the prohibition of PIL particularly in service matters. The discussion made is against PIL generally and also on the need to observe caution that the weapon of PIL is to be used with great care and circumspection and as an effective weapon in the armoury of law for delivering social justice and it should be aimed at redressal of genuine public wrong or public injury. It also said that the Court must be careful to see that a body of persons or members of public, who approaches the Court is acting bona fide and not for personal gain or private motive. A number of other precautions to be taken are also listed. Let all these safeguards be followed in PIL relating to service matters also or in PIL, which may eventually have repercussions in service laws. But, is there justification for a total ban -- in respect of cases of a particular nature.

 

Total ban on PIL in service matters: whether justified?

 

26. To sum up, it is clear from the above discussions that the Supreme Court has not done justice to Duryodhan Sahu, as the principles enunciated therein have not been applied correctly in Ashok Kumar Pandey, Dattaraj Thaware and in Gurpal Singh. Despite, the observations being that of the Supreme Court, though obiter, have to be given considerable weight, while dealing with issues of similar nature. But, can it be treated as a binding precedent, as it is not ratio residendi in any of the above decisions. In Gurpal Singh also, nothing more than what is stated in Ashok Kumar Pandey and Dattaraj Thaware has been said on this point. So, in view of the reasoning given in para 19 and 20 (supra), can it be treated as the law declared under Art.141. The other issue to be considered is whether maintainability of PIL in service matters, has been conclusively decided there, so as to make it a precedent or is it still “res Integra”.

___________________________________________________________________

1. Dattaraj Nathuji Thaware v. State of Maharashtra (2005 (3) KLT(SC) (SN) 44 = (2005) 1 SCC 590)

2. Dr. Duryodhan Sahu v. Jithendra Kumar Mishra (1998) 7 SCC 273.

3. Ashok Kumar Pandey v. State of W.B.(2004) 3 SCC 349.

4. Faizan Kollali v. Vadakkengara Ali (2005 (2) KLT 1026).

5. Saleem Kumar v. State of Kerala (2004 (2) KLT SN 101 (C.No.121) = 2004 (2) KLJ 177).

6. S.P. Gupta v. Union of India (1981) Supp. SCC 87.

7. Director or Settlements v. M.R. Appa Rao & Another (2002) 4 SCC 638.

8. Ballabhadas Mathurdas Lakhani v. Municipal Committee, Malkapur (1970) 2 SCC 267 = AIR 1970 SC 1002.

9. Narinder Singh v. Surjit Singh (1984) 2 SCC 402.

10. Kausalya Devi Bogra v. Land Acquisition Officer (1984) 2 SCC 324.

11. Krishena Kumar v. Union of India (1990) 4 SCC 207.

12. State of U.P. v. Synthetics and Chemicals Ltd. (1991) 4 SCC 139.

13. Arnit Das v. State of Bihar (2000) 5 SCC 488.

14. Municipal Corporation of Delhi v. Gurnam Kaur (1989) 1 SCC 101.

15. Ramdas Foundation v. Union of India (1993) Suppl. 2 SCC 20.

16. K.R. Srinivas v. R.M. Premchand (1994) 6 SCC 620.

17. Article on PIL by Shri Vijay Hansaria (Sr. Advocate) Published in (2005) 5 SCC Journal 1.

18. Dr.B. Singh v. Union of India & Others (2004) 3 SCC 363.

19. M.C. Bhandari Memorial Lecture published in (2002) 7 SCC Journal 1.

20. Prof. Yashpal and another v. State of Chhattisgarh and others (2005) 5 SCC 420.

21. Gurpal Singh v. State of Punjab & Others (2005 (3) KLT 588 (SC) = (2005) 5 SCC 136)

 

The Parliament & The Judiciary

 

(By P.K.R. Menon, Senior Counsel, Government of India (Taxes))

 

The observation made recently by the Hon'ble Chief Justice of India during the course of hearing of a case has been the subject matter of discussion by the public, members of Parliament and members of the legal fraternity.

 

In this context it may be noted that as early as in 1953, Lord Denning, "the greatest and most colourful Judge the 20th century has known" had spoken about "Criticisms By the Judges" thus:

 

“The sources of criticism of which I have already spoken are all frankly partisan and known to be so. In Parliament discussion runs on party lines. So it does in the Press and in broadcasts, and now-a-days also in municipal elections. Indeed, many sources of criticism are to be discounted by reason of party bias. But there is one source which is not so to be discounted. It is criticism by the Judges. Observations by them may form an important basis of public opinion. This carries with it the responsibility of being wise and discreet in all they say, but it does not mean that they must say nothing. If matters come before them where injustice is being done, they are entitled to point it out so that the public may know of it and form an opinion upon it.

 

Two or three years ago, however, an Attorney-General laid down in the House of Commons a limitation on the Judges. He declared that it was "a most important principle of our constitutional practice that Judges do not comment on the policy of Parliament, but administer the law, good or bad, as they find it. It is [he said] a traditional doctrine on which the independence of the judiciary rests." The fact that an Attorney-General said that does not mean that it is correct but I do not think that anyone would quarrel with it so long as it is not carried too far. The Judges, of course, administer the law, good or bad, as they find it. A good deal of it is made by Parliament, and so they must act in accordance with what Parliament says. They should show proper respect for, and confidence in, what Parliament has decided and should always carry out faithfully the intentions of Parliament. If a Judge or Magistrate should say, "I do not agree with this statute or regulation, and therefore I will only inflict a nominal penalty," he would be doing a grievous wrong. Nor should a Judge enter into any captious or irresponsible criticism of what Parliament has done. If a Judge should say to a young blackguard, "I wish I could have you birched, but Parliament in its wisdom says I cannot," that borders on the captious, or at any rate displays a want of confidence in Parliament which it is undesirable to express. But Parliament is not infallible. Its policies may have results it did not foresee. Its enactments may not work out in practice in the way in which it had intended. The draftsmanship may be obscure and give rise to unexpected difficulties. When this happens, the Judges have the right and indeed the duty to point it out: and in the past they have often done so without being accused of impropriety. The Judges are able to see how the Acts of Parliament work in practice and, when defects appear in them, their observations may be a great help to those responsible for making or amending the law. Not only the public but also the legislature may be left in ignorance of the defects unless they are pointed out to them.

 

The true principle, as I understand it, is that Judges are entitled to make responsible comments or suggestions on the way in which Acts work, if it appears to them necessary to do so in the public interest. This applies not only in respect of enactments in ancient times but also in respect of enactments in modern times, subject to the qualification that Judges must. never comment in disparaging terms on the policy of Parliament, for that would be to cast reflections on the wisdom of Parliament and would be inconsistent with the confidence and respect which should subsist between Parliament and the Judges. Just as members of Parliament must not cast reflections on Judges so Judges must not cast reflections on the conduct of Parliament. If everyone observes these rules, there will be no conflict."

 

Shyam Sundar Sarma -- A Precedential Virus

 

(By K.V. Sohan, Advocate)

 

A three Judge Bench of the Supreme Court in Shyam Sundar Sharma v. Panalal, 2005 (1) KLT 198 (SC) = (2005) 1SCC 436 held that:

 

"an appeal filed along with an application for condoning the delay in filing that appeal when dismissed on the refusal to condone the delay is nevertheless a decision in the appeal".

 

The Hon'ble Supreme Court held above in the context of an argument that the bar in Explanation to Order 9 Rule 13 will not cover an appeal not entertained for the reason of not condoning the delay in filing it. Repelling this contention Supreme Court held that dismissal of the application for condonation of delay and consequent dismissal of the appeal is also dismissal of an appeal and there is a resultant merger of the decree appealed in the decree of the appellate Court.

 

It is submitted that the judgment of the Supreme Court requires reconsideration in view of the conflicting precedents and the omission to take note of the binding larger bench decision.

 

Hon'ble Justice P.K. Balasubramanyan on behalf of the Bench observed that:

 

"The Learned counsel placed reliance on the decision in Ratansingh v. Vijayasingh & Ors., 2001 (1) KLT 327 (SC) = (2001) 1 SCC 469 rendered by two learned Judges of this Court and pointed out that it was held therein that dismissal of an application for condonation of delay would not amount to a decree and, therefore, dismissal of an appeal as time-barred was also not a decree. That decision was rendered in the context of Article 136 of the Limitation Act, 1963 and in the light of the departure made from the previous position obtaining under Article 182 of the Limitation Act, 1908. But we must point out with respect that the decisions of this Court in Mela Ram and Sons (AIR 1956 SC 367) and Sheodan Singh (AIR 1966 SC 1332) were not brought to the notice of Their Lordships. The principle laid down by a three-Judge Bench of this Court in Mela Ram and Sons and that stated in Sheodan Singh was, thus, not noticed and the view expressed by the two-Judge Bench, cannot be accepted as laying down the correct law on the question."

 

With great respect it is submitted that Shyam Sundar Sharma's case conflicts with a co-equal bench decision and is also per incurium of a larger bench decision. It also failed to consider the consequences of the ratio laid. Another three Judge Bench of the Supreme Court in Chandi Prasad and others v. Jagdish Prasad & Ors., 2004 (3) KLT 654 (SC) = (2004) 8 SCC 724 held referring the decision in Ratansingh that:

 

"when an appeal is dismissed on the ground that delay in filing the same is not condoned, the doctrine of merger shall not apply".

 

His Lordship Justice S.B. Sinha on behalf of the bench relied on Raja Mechanical Company (Pvt. Ltd.) v. Commissioner of Central Excise, ILR 2002 (1) Delhi 33.

 

Shyam Sundar directly conflicts with the co-equal bench decision in Chandi Prasad. While his Lordship Justice S.B. Sinha in Chandi Prasad relied on the Delhi decision rendered by himself, His Lordship Justice Balasubramanyan in Shyam Sundar inter alia relied on, 1987 (2) KLT 848, the Full Bench decision of the Kerala High Court, which his Lordship had argued as a counsel. This apart both the bench omitted to take note of the five Judge bench decision of the Supreme Court in Union of India v. Hansoli Devi & Ors. reported in (2002) 7 SCC 273 which had answered the question, whether a dismissal of an application seeking reference under S. 18 on the ground of delay amounts to not filing an application within the meaning of S.28-A of the Land Acquisition Act 1894. The larger Bench held that:

 

"the dismissal of an application seeking reference under S.18 on the ground of delay would tantamount to non filing an application within the meaning of S.28-A of the Land Acquisition Act, 1894."

 

Apart from the above submission the reliance on Mela Ram & Sons and Sheodan Singh is unfounded. Mela Ram & Sons was a case which arose under S.31 of the Income Tax Act and the ratio of the case is only that S.31 of the Income Tax Act is the only provision relating to the hearing and disposal of the appeals and if an order dismissing an appeal as bared by limitation is one passed in appeal it must fall within S.31. And as S.33 confers a right of appeal against all orders passed under S.31 it must also be appealable. The Court ultimately held that: (AIR 1956 SC 367 at Page 374)

 

"in this view, the orders of the Appellate Assistant Commissioner holding that there were no sufficient reasons for excusing the delay and rejecting the appeals as time barred would be orders passed under S.31 and would be open to appeal, and it would make no difference in the position on whether the order of dismissal is made before or after the appeal is admitted."

 

So the ratio of the Mela Ram case is to be confined in its application to the provisions of Sections 31 and 33 of the Income Tax Act only and not to the general law. As regards Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332 the question arose was under S.11 of C.P.C. The Court held that:

 

"Where the trial Court has decided two suits having common issues on the merits and there are two appeals therefrom and one of them is dismissed on some preliminary ground, like limitation or default in printing, with the result that the trial Court's decision stands confirmed, the decision of the appeal court will be res judicata and the appeal court must be deemed to have heard and finally decided the matter. In such a case the result of the decision of the appeal court is to confirm the decision of the Trial Court given on merits, and if that is so the decision of the appeal court will be res judicata whatever may be the reason for the dismissal. It would be a different matter, however, where the decision of the appeal court does not result in the confirmation of the decision of the trial Court given on the merits, as for example, when the appeal court holds that the trial Court had no jurisdiction and dismisses the appeal, eventhough the trial Court might have dismissed the suit on the merits."

 

The position in Sheodan Singh has no application to the case and the principle on which the Court holds above is to be doubted and in fact doubted in AIR 2004 SC 2546 and AIR 1995 SC 316. The principle on which Sheodan Singh holds that the appellate Court decree will be res judicata is evidently erroneous. When there are two appeals from one suit and one of them is dismissed on the ground of delay or on some other technical reasons like default in submitting notice batta etc., the trial Court decree which had attained finality alone will be res judicata for the appellate Court to consider in connected case and not the appellate Court decree which has not decided any issues will be res judicata.

 

On the simple logic and common sense also the principle cannot be supported because when an appeal is filed with an application for condonation of delay the reasons stated in the application for condonation of delay has nothing to do with the judgment appealed. Reason for condonation of delay may be the delay on the part of the Advocate clerk, illness of the party and such other common grounds which has nothing to do with the issues adjudicated. So when a Court consider the correctness of such reasons which are always post judgment for condoning delay and holds that there is no sufficient reasons to condone the delay that cannot merge with any issues decided in the judgment. The history of the legislation makes the position clear. In the XlVth Law Commission report it is stated that:

 

"In cases where a memorandum of appeal is accompanied by a petition seeking condonation of delay under S.5 of the Limitation Act, the High Courts, at one time, used to admit the appeal subject to objections as to its maintainability being raised at the time of hearing. Sometimes no such reservation is made so that the point of limitation survives and is debated upon at the hearing of the appeal. This practice was disapproved by the Privy Council in two cases. In the first case, Sir Lawrence Jenkins delivering the judgment of the Judicial Committee sought "to impress on the Courts in India the urgent expediency of adopting a procedure which will secure at the stage of admission, the final determination (after due notice to all parties) of any question of limitation affecting the competence of the-appeal". Following this advice, the High Courts of Andhra Pradesh, Bombay and Madras have made appropriate amendments to the rules. We recommend that similar amendments be made in their rules by the other High Courts, so as to provide that, if the appellate Court thinks fit to condone the delay under S.5 of the Limitation Act, it should, before admitting the appeal, give notice to the respondent and hear his objections, if any, to the condonation of the delay in filing the appeal."

 

ILR 41 Madras 412 and ILR 43 Bombay 376 had clearly stated that the delay condonation should be considered prior to the appeal being considered and recommended legislation being brought. The wisdom Privy Council tried to infuse in the law prior to 87 years though accepted by the legislature in 1977 by inserting Order 41 Rule 3A is sought to be undone by the decision of the Supreme Court in Shyam Sundar.

 

On the practical point of view also the decision cannot be supported. It casts unnecessary burden on a litigant. If Shyam Sundar is followed, against the dismissal of an application for condonation of delay and consequent dismissal of appeal only a second appeal will lie. The court fee will have to be paid at the same rate payable in the suit. (In Kerala it is at an exorbitant rate of 10% of the claim). After paying full Court fee the second appellate Court cannot examine the merit of the case as the first appellate Court had not examined. There cannot have any substantial question of law except whether the lower appellate Court is correct in not allowing the delay condonation petition on the particular facts alleged. If at all it is a substantial question the only way is to set aside the decree and remand to the first appellate Court after allowing the appeal. If the second appellate Court dismisses the appeal the decree to be worked out for execution is only the trial Court decree as the appellate Court is not considering the merit of the issues involved. So a litigant has to spend Rs.30,000/- by way of Court fee in three courts to recover an amount of Rs.1 lakh apart from the miscellaneous expenses he had to incur by way of advocate fee and clerical expenses. Procedural law ought to be interpreted without creating more hurdles in the way of obtaining the relief.

 

The Shyam Sundar virus requires to be quarantined at the earliest possible opportunity.

MODERN ONAM*

(By T.P. Kelu Nambiar)

 

In absentia though, it is only appropriate that I start by extending hearty and warm wishes to the Hon'ble Chief Justice Sri Rajiv Gupta for a happy "Kanni”/primary Onam, in Kerala.

 

On the eve of the happy Onam, let us look beyond the past end forward to the future.

 

Maharaja Mahabali, son of Virochana, grandson of Prahlada and great-grand-son of Hiranya, whom we have never met, but feel we know, was the demon King who ruled narans, not Rakshasas as Ravana did; who disappeared leaving his fame and name behind for all time to come. Malayalis were happy and prosperous from Friday to Friday, under the rule of Mahabali, unlike the Lankans. During Mahabali's rule, everybody was happy and safe; it is said, no lion was in distress, no tiger was in trouble; and everybody enjoyed the right to become old. Everybody climbed without being lifted from above. There was no Tsunami, no earthquake, no Katrina, no whirlpool, no whirlwind, because Devendra, Varuna and Vayu, had been subjugated by Raja Mahabali. There was no collective madness, an there is now-a-days. Nobody had occasion to seek anticipatory bail. If only Mahabali had heeded to, and accepted, the advice of his mentor, and enlivener, Sri Sukracharya, Malayalis would never have lost their great King for over, except a day a year. Voltaire's declaration that history is nothing more than a picture of crimes and misfortunes, is proved wrong by Mahabali's rule.

 

Onam started as an annual rural festival, celebrated with perfect harmony and traditional favour; an annual feature started from time immemorial and persisted, since; an event of imagination, not memory. But, now-a-days, it has assumed the character of urban commercial competition. Even 'Onasadya' is purchased, not made. Onam has become a season of rebates, discounts, margin-free offers, concessions, bumper/mega reductions, etc. in every branch of activity. The only institution which does not make these 'reduction offers' is the legal profession, the judiciary included.

 

It is doubtful whether there was any community other than the Hindu in the days of Mahabali. But Onam is celebrated without any difference in caste and religion. Let it be virtuous to be so. If we make a combined and comparative study of the Vedas, the holy Koran and the Bible, we will find several similarities.

 

By its very conception, Onam is now an occasion for Malayalis to greet one another.

 

I should never speak wide at a function like this, as, ought I know, all your eyes and mind are fixated on the ‘Palada’.

 

So, let us celebrate and enjoy Onam, with the glitter of Kashikodokoro, if I may give employment to an unemployed word.

___________________________________________________________________

*Felicitation Address delivered on 8.9.2005, at the Bar Council Hall, Ernakulam, on the occasion of "Onam Celebrations - 2005" by the Kerala High Court Advocates Association.