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Sen courted trouble as Receiver

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FORMER CALCUTTA HIGH COURT JUSTICE SOUMITRA SEN

For the beleaguered Justice Soumitra Sen of the Calcutta High Court, trouble started in 1983, when the Steel Authority of India Ltd. filed a money suit in the court against the Shipping Corporation of India for sale of Periclase Spinal Bricks lying at the Bokaro Steel Plant.

On April 30, 1984, the court appointed Justice Sen, who was a lawyer at that time, as a Receiver to make an inventory, sell these goods, and keep the proceeds until the case was decided. Between April 1, 1993 and June 1, 1995, he received the sale amount of Rs. 33.23 lakh.

In 1996, though he was entitled to keep only five per cent, Rs 1.66 lakh, towards remuneration, he kept the entire money in a fixed deposit with ANZ Grindlays (which later merged into Standard Chartered) and later transferred it to Lynx India Ltd, a company authorised by the RBI.

On January 20, 1997, another High Court Bench directed Mr. Sen to be the Receiver in another case and to keep Rs. 70 lakh for distribution among workers of Calcutta Fans. But he deposited this amount also in Grindlays Bank. Between May 14, 1997 and August 6, 1997, he issued several cheques to the workers.

On February 26, 1997, he deposited Rs. 25 lakh (from out of Rs. 70 lakh) with Lynx India, which sank. The shortfall was made up by taking Rs. 25 lakh from the SAIL money and depositing it in the Calcutta Fans account

On February 27, 2003, the SAIL filed an application in the High Court asking the Receiver to return the entire sales proceeds and render true and faithful accounts. He failed to do so until he was appointed judge on December 3, 2003.

On August 3, 2004, the High Court appointed a new Receiver, without asking Justice Sen to refund money lying with him till then.

Subsequently on February 15, 2005 when the matter was posted before another judge, he issued notice to Justice Sen for return of the money. On June 30, 2005 after the High Court ordered an enquiry, it came to light that Justice Sen, as Receiver, never filed any accounts, though he was required to do so every six months.

On November 1, 2005 he deposited Rs. 5 lakh. On April 10, 2006, the court directed him to repay Rs. 57.65 lakh, which included an interest of Rs. 26.26 lakh. Justice Sen went on leave and on his return, he was not allotted judicial work. Between June 27, 2006 and September 5, 2006, he repaid Rs. 40 lakh and on November 21, 2006, he repaid the balance amount.

On September 25, 2007, a Division Bench quashed single judge’s order and expunged remarks. The Bench held that there was no material to hold that Justice Sen had misappropriated any amount or made any personal gain.

But on a report from the then Chief Justice of the High court, the then Chief Justice of India K.G. Balakrishnan formed a three-member committee to probe the charge

In February 2008, the in-house committee, found Justice Sen guilty of breach of trust and misappropriation. It said he did not have any honest intention since he mixed the money received as Receiver with his personal money. There was misappropriation, at least temporary, of the sales proceeds.

Acting on the report, he was asked to resign or to seek voluntary retirement, but he declined.

In August 2008, the then CJI, K.G. Balakrishnan, asked Prime Minister Manmohan Singh to initiate removal proceedings against Justice Sen for his misconduct.

On February 27, 2009, 58 MPs of the Rajya Sabha moved a motion seeking Justice Sen’s removal.

On March 4, 2009, the Chairman of the Rajya Sabha appointed a probe panel headed by the then Supreme Court judge, B. Sudershan Reddy.

On September 10, 2010, the committee held him guilty on two counts — misappropriation of money and misrepresentation of facts to the High Court — and recommended his removal.

On August 18, 2011 the Rajya Sabha voted the resolution to remove Justice Sen.

COURTESY: THE HINDU

Rajiv case outcome will settle fate of India’s 18 ‘dead men walking’

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Rajiv Gandhi and R.L.Lakhina

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J.VENKATESAN & VINAY KUMAR in THE HINDU

With as many as 18 clemency petitions filed by death-row convicts or their family members still pending consideration with the Government — some for years on end — the eventual fate of the petition filed by the three condemned men awaiting execution in the Rajiv Gandhi case is bound to have an impact on other prisoners awaiting the gallows across India.

In a plea admitted by the Madras High Court on Wednesday, Perarivalan, Santhan and Murugan said that the eleven years the government took to process and reject their mercy petition made the execution of their death sentence unduly harsh and excessive. Rajiv Gandhi was assassinated in 1991 and the trio, who were convicted of being part of the larger conspiracy, have already been incarcerated for 20 years, mostly in solitary confinement.

The last execution in India was carried out in Kolkata in August 2004, when Dhananjoy Chatterjee was hanged for raping and killing a schoolgirl. Since then, there has been no execution of convicts awarded the death penalty.

According to information furnished by the Minister of State for Home, Mullappally Ramachandran, in the Lok Sabha on August 16, 18 mercy petition cases of death convicts are pending. Though “the power under Article 72 of the Constitution does not contain any limitation as to the time in which the power conferred might be exercised,” the minister asserted that, “As per the orders of the Supreme Court, the cases of mercy petitions are processed expeditiously in consultation with the governments/departments concerned for a final decision of the President of India, under Article 72 of the Constitution.”

The facts, however, speak otherwise.

Mercy petitions are usually filed soon after the Supreme Court rejects the petitions seeking review of the judgment convicting and sentencing the accused to death. Right after the mercy petition is filed, the

President’s office forwards it to the Union Home Ministry for advice by the Council of Ministers. Invariably, delay takes place in the government forwarding its advice to the President. Thereafter, the President decides on the mercy petition based on the government’s advice. Lengthy delays occur there too.

In the case of the three convicts in the Rajiv case, the mercy petitions were sent to the President soon after the review petitions were dismissed in October 1999. It took about five years for the government to convey its decision to the President to reject the mercy plea and six years for the President to accept the advice and pass appropriate orders.

Recently the Home Ministry has asked the President to reject the mercy petition of Afzal Guru, sentenced to death in the Parliament attack case of December 2001. In reply to information sought under the RTI Act by Subhash Chandra Agarwal, the President’s Secretariat said the oldest petition pending with them was from 2005, while six mercy petitions were submitted to her office in 2011 alone.

The petition of Sushil Murmu from Jharkhand, who was convicted of killing a nine-year-old child for a religious ritual, has been pending since 2005. Another case is of Jafar Ali, who is facing the death penalty for murdering his wife and daughters. He applied for the President’s mercy August 21, 2006.

Meanwhile, the RTI reply also said that the President had commuted the death sentences of 10 convicts to life imprisonment following mercy petitions. In 2009 alone, death sentences of seven convicts had been commuted to life imprisonment.

In May, President Patil rejected the mercy plea of Mahendranath Das alias Govinda Das who had severed the head of 68-year-old Harakanta Das, secretary of the Guwahati Truck Drivers Association, in 1996. He was sentenced to death by a sessions court in 1997. Another mercy plea rejected by the President was that of Devinder Pal Singh Bhullar, who has been given the death penalty in a 1993 car bombing case in New Delhi.

During his tenure, President A.P.J. Abdul Kalam decided only two mercy petitions. In 2004, he rejected the plea of Dhananjoy Chatterjee, and in 2006 he commuted convict Kheraj Ram’s death penalty to life imprisonment. President K.R. Narayanan did not clear any mercy petition.

In 2009, the Supreme Court judgment in Jagdish vs State of Madhya Pradesh asked the Centre to decide the mercy petitions expeditiously, preferably within three months. It said the condemned prisoner and his suffering relatives have a very pertinent right in insisting that a decision in the matter be taken within a reasonable time, failing which the power should be exercised in favour of the prisoner and the sentence should be commuted into one of life imprisonment.

A self-imposed rule should be followed by the executive authorities rigorously, that every such petition shall be disposed of within a period of three months from the date on which it is received. Long and interminable delays in the disposal of these petitions are a serious hurdle in the dispensation of justice and indeed, such delays tend to shake the confidence of the people in the very system of justice, the court said.

In July this year, the Supreme Court issued notice to the Centre on a plea by Devinder Pal Singh Bhullar to explain the inordinate delay of several years in deciding the mercy petitions of convicts after the Supreme Court had pronounced its final verdict. The petitioner said, “The power is not merely a privilege but a matter of performance of official duty. The power has to be exercised not only for the benefit of the convict, but also for the welfare of the people who may insist for the performance of the duty and therefore the discretion has to be exercised on public considerations alone.”. The matter is still pending as the Centre is yet to file its reply. However, days after Bhullar filed his petition, his mercy plea — which had been hanging fire for years — was speedily processed and rejected by the Home Ministry and President.

Objection, your honour

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Satya Prakash in the HINDUSTAN TIMES

As Justice Soumitra Sen of the Calcutta High Court faces impeachment proceedings, the focus is back on corruption in the Indian judiciary, often accused of opposing measures to introduce transparency and accountability in an institution that also judges the works of the Legislature and the Executive.

During the debate on the resolution in the Rajya Sabha to remove Justice Sen, cutting across party lines, MPs attacked the judiciary for corruption, lack of accountability and the collegium system of appointments, in which the executive hardly has any role to play. No wonder, in his farewell speech, Justice VS Sirpurkar of the Supreme Court described the statements against the judiciary as “indigestible”.

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Should the Judiciary be under Lokpal?
Gandhian Anna Hazare, who had been on an indefinite fast since August 16 to demand a strong Lokpal (anti-corruption ombudsman), first demanded that the judiciary be brought under the Lokpal. However, team Anna is now said to have agreed to keep the judiciary out of the purview of the Lokpal if the government simultaneously brings the Judicial Standards and Accountability Bill with strong provisions to deal with judicial corruption.

“Judiciary can’t be covered by this (proposed) Lokpal. It should be covered by another alternative mechanism. We call it the National Judicial Commission,” leader of Opposition in the Rajya Sabha Arun Jaitley said on August 18, during the debate on Sen’s impeachment.
According to former Chief Justice of India PN Bhagwati, bringing the judiciary under the Lokpal would “seriously” affect its independence. Only a “specialised agency” should be entrusted to ensure accountability in the judiciary, whose autonomy could be compromised if brought under the Lokpal, Bhagwati said in an open letter to Hazare.

The Judicial Standards and Accountability Bill, 2010
The UPA government introduced the Judicial Standards and Accountability Bill in the Lok Sabha on December 1, 2010. It proposes to lay down judicial standards, provide for the accountability of judges, and requires them to declare their assets and liabilities, and also that of their spouse and children.

The Bill requires judges to practise universally accepted values of judicial life, such as prohibition on close association with individual members of the Bar who practise in the same court as the judge and allowing family members who are members of the Bar to use the judge’s residence for professional work.

Law Commission Vice Chairman KTS Tulsi terms it a historic step, saying, “For the first time judges’ conduct is being defined by a statute.”
The proposed law is to replace the Judges (Inquiry) Act, 1968 that lays down procedure for removal of the Supreme Court and high court judges. But most importantly, it empowers the common man to file complaints against judges of the high courts and the Supreme Court.
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The numbers game
Under the present system provided for in the Judges (Inquiry) Act, 1968, the process for removal of a judge can be initiated through a resolution either by 100 Lok Sabha members or 50 Rajya Sabha members.

After the MPs submit a duly signed motion to the Lok Sabha speaker or Rajya Sabha Chairman, the presiding officer constitutes a three-member committee to probe the allegations and determine if it is a fit case for initiating the impeachment process.

If the panel indicts the judge, the resolution for removal has to be passed by two-thirds majority in both Houses in the same session. The resolution is then sent to the President, who orders removal of the judge. The judge is given an opportunity to defend him/her.

While retaining the reference procedure, the Bill proposes to introduce a complaint procedure to empower the aam admi to file complaints against judges of the high courts and the Supreme Court.

It seeks to establish two authorities — a National Judicial Oversight Committee and a Scrutiny Panel — to investigate complaints against judges.

The Oversight Committee will comprise a retired Chief Justice of India as the chairperson, a judge of the Supreme Court nominated by the sitting Chief Justice of India, a Chief Justice of the High Court, the Attorney General for India, and an eminent person appointed by the President. The scrutiny panel shall comprise a former Chief Justice and two sitting judges of that court.

A Parliamentary panel on Law and justice is said to have recommended inclusion of one MP each from the Lok Sabha and the Rajya Sabha in the Oversight Committee.  Initial complaints will be made to the Oversight Committee, and they will be referred to the scrutiny panel constituted in the Supreme Court and in every High Court.

If the scrutiny panel feels there are sufficient grounds for proceeding against the judge, it shall report on its findings to the Oversight Committee.

When the panel finds that the complaint is frivolous, or that there not sufficient grounds for inquiring against into the complaint, it shall submit a report to the Oversight Committee giving its findings for not proceeding with the complaint.

If the scrutiny panel recommends investigation into a complaint against a judge, the Oversight Committee will constitute an investigation committee to probe into the complaint. The probe panel will comprise three members. It will frame definite charges against the judge and shall communicate the same to the judge, who shall be given an opportunity to present the case, but if the judge chooses not to be heard, the proceedings may be heard without him present.

The Removal of a judge
If the Oversight Committee feels that the charges proved against the judge merit his/her removal, it shall request the judge to resign voluntarily, and if the judge fails to do so, it shall advise the president to proceed with the removal of the judge. In such a case, the President shall refer the matter to Parliament, where the rest of the procedure is the same as the one in the case of a motion moved by MPs.

The Bill exempts documents and records of proceedings related to a complaint from the purview of the RTI Act, 2005 but the reports of the investigation committee and the order of the Oversight Committee can be made public. The tainted judges gallery

Why The Collegium stays
Under Article 124(2) and Article 217(1) of the Constitution, a judge of Supreme Court/High Court has to be appointed by the President after “consultation” with the Chief Justice of India (CJI). The government was not bound by the CJI’s recommendation.
But in 1993, the Supreme Court introduced the collegium system, taking over primacy in appointments to higher judiciary. A nine-judge Constitution Bench in 1998 ruled that “consultation” must be effective and the chief justice’s
opinion shall have primacy. Now India is the only nation in the world where judges appoint judges. In 2008, the Law Commission favoured restoration of pre-1993 position. Despite the UPA government criticising the collegium system, the Bill does not propose to change it.

Post-retirement carrots
During his speech on Sen’s impeachment, Jaitley said: “The desire of a job after retirement is now becoming a serious threat to judicial independence.”

Tulsi also described it as a menace. “I agree with Jaitley that judges should not be given post-retirement jobs. If a statute requires a judicial person, a sitting judge can be appointed.”

The way forward
Prevention is better than cure. What is needed is a system that ensures only an honest person becomes a judge. If that happens, the occasion for removal of a judge may not arise.  Also, the collegium system must go, says former law minister Ram Jethmalani. “Setting up a National Judicial Commission is the only solution. The Commission must have the powers to appoint, transfer and remove judges,” he said.
He, however, said: “It should be a broad-based body comprising a government representative, the leader of the opposition and representatives of the judiciary, organised Bar, academic world and the world of social sciences.”

 http://www.hindustantimes.com/Objection-your-honour/H1-Article1-738669.aspx
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Horoscope weak proof of birthdate, rules Supreme Court

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SUPREME COURT OF INDIA

The Supreme Court has held a horoscope to be a very weak piece of material to prove age of a person and the “heavy onus lies” on the person to prove the authenticity of the horoscope he is relying upon to prove a new date of birth.

“There must be strong, cogent and reliable evidence in support of the contention that the date of birth entered in the service records or in the SSLC (secondary school leaving certificate) was wrongly entered by a mistake,” said the Supreme court bench of Justice Mukundakam Sharma and Justice Anil R. Dave in a recent judgment.

Speaking for the bench, Justice Sharma said there could not be any bar to examine the authenticity and evidentiary value of the document for change of date of birth, which was being relied upon by a person to get an advantage which he may not be otherwise entitled to.

The Supreme court’s ruling came while upholding an appeal by the Registrar General, Madras High Court challenging the high court order upholding the claim of District Munsif-cum-Judicial Magistrate, M. Manickam that his actual date of birth is Nov 24, 1950, whereas it is wrongly entered in his service book as March 19, 1947. Manickam primarily relied on his family horoscope book to support his claim.

Manickam had contended that that due to the wrong entry of his date of birth in the service records, he would retire from the service 3 years, 8 months and 5 days before his actual date of superannuation.

He had joined the State Subordinate Judicial Service as district judicial magistrate on Nov 4, 1988, after qualifying in the Tamil Nadu Public Service Commission.

“We are of a firm opinion that respondent No.1 (Manickam) has failed to discharge his onus in proving the authenticity of the aforesaid horoscope on which reliance is placed,” the judgment said.

Setting aside the Madras High Court verdict, the judgment said the Supreme court has time and again cautioned civil courts and high courts against entertaining and accepting the claim made by the employees for correction of the recorded date of birth, long after entering into service.

Refuting Manickam’s claim that the horoscopes being produced in support of his later date of birth was contained in the note book that had the horoscopes of the family being maintained since 1939, the judgment observed that the said note book was distributed and published from Trichy-2. The court said that Trichy-2 pointed to postal zones which were not in existence before Independence.

The judgment also rejected the modified date of birth on the school leaving certificate saying it was not authenticated by the person who made the changes by hand.

That medical certificate to prove revised date of birth appears to have been got prepared for the purpose of adducing evidence at the time of hearing of the suit and not before, the judgment said.

“The document is also found to be unrealistic and unreliable. Considering the facts and circumstances of the case, it is very difficult to place any reliance on the authenticity and validity of the said age proof certificate,” the judgment said.

COURTESY: LEGAL INDIA.in

A Guide To India’s Lokpal Bill

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The Indian government last week tabled its version of draft legislation to set up the Lokpal, a corruption complaints ombudsman. Anti-corruption advocates were quick to burn copies of the government draft, because, as expected, it doesn’t allow the agency to investigate a sitting prime minister. But what else is in the draft? Here’s a quick guide.

1. Staffing. The chairperson of the Lokpal must be a former chief justice or judge in the Supreme Court of India. In addition, the Lokpal should have eight other members of whom at least four must also have been a former chief justice or judge of the Supreme Court.

This restricts the pool of candidates for at least five spots to people over the age of 65, which is the retirement age for Indian Supreme Court justices. At any given time, there should be 31 serving Supreme Court judges, though in any given year just a handful will retire.

For the remaining spots, candidates should have at least 25 years of experience in anti-corruption policy, governance, finance or management.

These people will be selected by a committee of eight, including the prime minister, Lok Sabha speaker, Lok Sabha opposition leader, Rajya Sabha opposition leader, one Cabinet minister, one judge, one legal scholar and one person of “eminence in public life.”

2. Jurisdiction. The Lokpal can investigate a prime minister after he or she has left office; a sitting or former minister; members of parliament (with some limitations); “Group A” civil servants and above (as defined in the 1989 Prevention of Corruption Act); and the chairperson and senior executives of a company or body that is at least partly financed by the government or controlled by it.

The Lokpal can also investigate executives of bodies and trusts that receive public donations and that have an income over an amount to be decided. This is a provision that could apply, for example, to yoga guru Baba Ramdev’s trusts.

Only a chief justice can investigate allegations of corruption against the Lokpal chairperson and members, but other Lokpal employees come under this act’s jurisdiction.

The statute of limitations has been set at seven years for complaints that can be investigated.

3. Investigation. The Lokpal will have an investigation wing to inquire into whether a public servant has violated the 1988 anti-corruption act. Until this wing is set up, the central government is supposed to make available police and other staff to the Lokpal. After obtaining consent from individual states, Lokpal police can be given the same powers as regular state police. Investigations must be conducted by a police officer of the rank of deputy superintendent of police or higher.

On the receipt of a complaint, the Lokpal must carry out a preliminary inquiry in 30 days, which can be extended to three months if reasons for doing so are provided in writing. On the basis of that inquiry, which should include a hearing for the person accused, the Lokpal decides whether to proceed further against the person or dismiss the complaint.

In the course of an investigation, the Lokpal can seize and retain documents. All documents being used against the accused should also be made available to him or her. The search provisions of the 1973 Code of Criminal Procedure relating to magistrates will govern Lokpal searches. The Lokpal can require witnesses to appear before it mandatorily.

If the Lokpal decides to proceed further, it must complete its investigation within a year of the original complaint, but preferably six months. After that, the ombudsman must file a complaint in a special corruption court, recommend disciplinary action or dismiss the complaint. If the Lokpal is going to prosecute, it must also send a report to the government to be tabled in Parliament.

If the Lokpal believes a person has benefited from corruption and is on the verge of concealing those profits, it can provisionally freeze assets for up to 90 days after recording its reasons in writing. In doing so, the Lokpal should follow the regulations in the second schedule of the 1961 Income Tax Act while it requests the special court to freeze the assets for the duration of the inquiry.

Legal assistance should be provided to the accused if it is requested.

4. Prosecution. The Lokpal can itself prosecute public servants in special courts the government will set up under the Prevention of Corruption Act, 1988, or under the Lokpal Act. Once a case is filed in a special court, a trial must be completed within a year. This can be extended, three months at a time, to an extra year, provided that reasons for requiring the extra time are provided in writing.

Penalties. If a government department is asked by the Lokpal to take disciplinary action against an officer, it must begin doing so within 30 days.

If a public servant is convicted of corruption in the special court, the court can assess the estimated losses from the misconduct and order that this amount be recovered from the officer.

The minimum jail time for an offence under the corruption act is two years. The act amends the 1988 act to extend the maximum jail time for corruption offences to 10 years, up from seven.

If a corruption court finds that a “frivolous” complaint was made, it can impose a jail time of two to five years and/or a fine of 25,000 rupees ($555) to 200,000 rupees.  (Under the draft preferred by activist Anna Hazare and the India Against Corruption group, jail time can be imposed only on frivolous complaints against Lokpal officers.)

The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of courts – Apex Court

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The supreme court of india. Taken about 170 m ...

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Courtesy to LAW RESOURCE INDIA

The Supreme Court has propounded a new doctrine laying down eight cardinal principles for the judiciary in order to prevent unscrupulous litigants from misusing the legal process and turning it into a “fruitful industry.” “Litigation should not be permitted to turn into a fruitful industry so that the unscrupulous litigants are encouraged to invoke the jurisdiction of the court,” a Bench comprising Justices Dalveer Bhandari and HL Dattu said in a 158-page verdict while penning the 7th principle. According to the 5th and 6th principles, no litigant should be allowed to derive benefit from the mere pendency of a case in a court of law and no party can take any benefit of his own wrongs. “The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of courts,” reads the last principle of the doctrine.

“While adjudicating, the courts must keep the following principles in view,” the Bench said at the outset of its doctrine theory and went on to outline them. The first and the foremost principle: “It is the bounden duty and obligation of the court to neutralise any unjust enrichment and undeserved gain made by any party by invoking the jurisdiction of the court.”

The second principle is about interim relief and the need for preventing its misuse. “When a party applies and gets a stay or injunction from the court, it is always at the risk and responsibility of the party applying. An order of stay cannot be presumed to be conferment of additional right upon the litigating party.” Unscrupulous litigants should be prevented from taking undue advantage by invoking the jurisdiction of courts, reads principle No. 3.The next one is about the dangers of showing leniency to persons in wrongful possession. Such persons should not only be removed from the places of wrongful possession “as early as possible but also be compelled to pay for wrongful use” by way of fine, penalty and cost. “Any leniency would seriously affect the credibility of the judicial system,” warns the Supreme Court.

The apex court has come out with the guidelines while imposing a cost of Rs 10 lakh on a chemical industry that successfully stayed away from implementing its verdict for 15 years by filing some interlocutory application (IA) or the other. The industrial unit, along with others, had polluted the soil and ground water of Bichhri village in Udaipur district of Rajasthan.

The Bench comprising Justices Dalveer Bhandari and HL Dattu dealt with the subject in detail while delivering judgement in the case Indian Council for Enviro Legal Action vs Union of India. The Bench stated :  

We would also like to discuss the concept of Finality of the Judgment passed by the Apex Court.

The maxim `interest Republicae ut sit finis litium’ says that it is for the public good that there be an end of litigation after a long hierarchy of appeals. At some stage, it is   necessary to put a quietus. It is rare that in an adversarial system, despite the judges of the highest court doing their best, one or more parties may remain unsatisfied with the most correct decision. Opening door for a further appeal could be opening a flood gate which will cause more wrongs in the society at large at the cost of rights.

It should be presumed that every proceeding has gone through infiltration several times before the decision of the Apex Court. In the instant case, even after final judgment of this court, the review petition was also dismissed. Thereafter, even the curative petition has also been dismissed in this case. The controversy between the parties must come to an end at some stage and the judgment of this court must be permitted to acquire finality. It would hardly be proper to permit the parties to file application after application endlessly. In a country governed by the rule of law, finality of the judgment is absolutely imperative and great sanctity is attached to the finality of the judgment. Permitting the parties to reopen the concluded judgments of this court by filing repeated interlocutory applications is clearly an abuse of the process of law and would have far reaching adverse impact on the administration of justice.

In Manganese Ore (India) Ltd. v. The Regional Assistant Commissioner of Sales Tax, Jabalpur (1976) 4 SCC 124 this court held that the doctrine of stare decisis is a very valuable principle of precedent which cannot be departed from unless there are extraordinary or special reasons to do so.

In Green View Tea & Industries v. Collector, Golaghat and Another (2002) 1 SCC 109 this court reiterated the view that finality of the order of the apex court of the country should not lightly be unsettled.

A three-Judge Bench of this court in M/s Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi (1980) 2 SCC 167 held that a party is not entitled to seek a review of this court’s judgment merely for the purpose of rehearing and for a fresh decision of the case. Departure from the normal principle that the court’s judgment is final would be justified   only when compelling our substantial circumstances make it necessary to do so. Such circumstances may be that a material statutory provision was not drawn to the court’s attention at the original hearing or a manifest wrong has been done.

In Union of India & Another v. Raghubir Singh (Dead) by L.Rs. [1989] INSC 192(1989) 2 SCC 754, this Court held that the plea for reconsideration is not to be entertained merely because the petitioner chooses to reagitate the points concluded by the earlier decision in Sub-committee on Judicial Accountability.

In Mohd. Aslam v. Union of India & Others (1996) 2 SCC 749, the Court considered the earlier decisions and held that the writ petition under article 32 of the Constitution assailing the correctness of a decision of the Supreme Court on merits or claiming reconsideration is not maintainable.

In Khoday Distilleries Ltd. and Another v. Registrar General, Supreme Court of India [1995] INSC 792(1996) 3 SCC 114, the   Court held the reconsideration of the final decision of the Supreme Court after review petition is dismissed by way of writ petition under article 32 of the Constitution cannot be sustained.

In Gurbachan Singh & Another v. Union of India & Another [1996] INSC 230(1996) 3 SCC 117, the Court held that the judgment order of this court passed under Article 136 is not amenable to judicial review under Article 32 of the Constitution.

Similar view was taken in Babu Singh Bains and others v. Union of India and Others (1996) 6 SCC 565, a three-Judge bench of this Court held that a writ petition under Article 32 of the Constitution against the order under Article 136 of the Constitution is not maintainable.

Another three-Judge bench of this Court in P. Ashokan v. Union of India & Another (1998) 3 SCC 56, relying upon the earlier cases held that the challenge to the correctness of a decision on merits after it has become final cannot be questioned by invoking Article 32 of the Constitution. In the  instant case the petitioner wants to reopen the case by filing the interlocutory application.

In Ajit Kumar Barat v. Secretary, Indian Tea Association & Others (2001) 5 SCC 42, the Court placed reliance on the judgment of a nine-judge Bench in Naresh Shridhar Mirajkar v. State of Maharashtra and another [1966] INSC 64AIR 1967 SC 1 and the Court observed as under:

“It is difficult to see how this decision can be pressed into service by Mr. Setalvad in support of the argument that a judicial order passed by this Court was held to be subject to the writ jurisdiction of this Court itself…. In view of this decision in Mirajkar case it must be taken as concluded that judicial proceedings in this Court are not subject to the writ jurisdiction thereof.”

The Court in the said case observed that having regards to the facts and circumstances of the case, this is not a fit case to be entertained to exercise jurisdiction under Article 32 of the Constitution.

In Mr. “X” v. Hospital “Z” (2000)9 SCC 439, this Court held thus:

“Writ petition under Article 32 of the Constitution against the judgment already passed by this Court cannot be entertained. Learned counsel for the petitioner stated that prayer (a) which seeks overruling or setting aside of the judgment already passed in Mr X v. Hospital Z may be deleted. This prayer shall accordingly be deleted. So also, the other prayers which indirectly concern the correctness of the judgment already passed shall stand deleted. Learned counsel for the petitioner stated that the petition may not be treated as a petition under Article 32 of the Constitution but may be treated as an application for clarification/directions in the case already decided by this Court, viz., Mr X v. Hospital Z (CA No. 4641 of 1998).”

In Triveniben v. State of Gujarat (1989)1 SCC 678 speaking for himself and other three learned Judges of the Constitution Bench through Oza, J., reiterated the same principle. The court observed: (SCC p. 697, para 22) “…It is well settled now that a judgment of court can never be challenged under Articles 14 or 21 and therefore the judgment of the court awarding the sentence of death is not open to challenge as violating Article 14 or Article 21 as has been laid down by this Court in Naresh Shridhar Mirajkar (supra) and also in A.R. Antulay v. R.S. Nayak, the only jurisdiction which could be sought to be exercised by a prisoner for infringement of his rights can be to challenge the subsequent events after the final judicial verdict is pronounced and it is because of this that on the ground of long or  104 inordinate delay a condemned prisoner could approach this Court and that is what has consistently been held by this Court. But it will not be open to this Court in exercise of jurisdiction under Article 32 to go behind or to examine the final verdict reached by a competent court convicting and sentencing the condemned prisoner and even while considering the circumstances in order to reach a conclusion as to whether the inordinate delay coupled with subsequent circumstances could be held to be sufficient for coming to a conclusion that execution of the sentence of death will not be just and proper….”

In Rupa Ashok Hurra (supra), this Court observed thus:

… when reconsideration of a judgment of this Court is sought the finality attached both to the law declared as well as to the decision made in the case, is normally brought under challenge. It is, therefore, relevant to note that so much was the value attached to the precedent of the highest court that in The London Street Tramways Co. Ltd. v. London County Council [1898] UKHL 1(1898 AC 375) the House of Lords laid down that its decision upon a question of law was conclusive and would bind the House in subsequent cases and that an erroneous decision could be set right only by an Act of Parliament.

… … …

…This Court will not sit as a court of appeal from its own decisions, nor will it entertain applications to review on the ground only that one of the parties in the case conceives himself to be aggrieved by the decision. It would in our opinion be intolerable and most prejudicial to the public   interest if cases once decided by the Court could be reopened and reheard:

“There is a salutary maxim which ought to be observed by all courts of last resort — interest reipublicae ut sit finis litium. (It concerns the State that there be an end of lawsuits. It is in the interest of the State that there should be an end of lawsuits.) Its strict observance may occasionally entail hardship upon individual litigants, but the mischief arising from that source must be small in comparison with the great mischief which would necessarily result from doubt being thrown upon the finality of the decisions of such a tribunal as this.”

“…When this Court decides questions of law, its decisions are, under Article 141, binding on all courts within the territory of India, and so, it must be the constant endeavour and concern of this Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the country. Frequent exercise by this Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. That is not to say that if on a subsequent occasion, the Court is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error; but before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified. It is not possible or desirable, and in any case it would be inexpedient to lay down   any principles which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions.”

In Maganlal Chhaganlal [1974] INSC 91(1974) 2 SCC 402 case a Bench of seven learned Judges of this Court considered, inter alia, the question: whether a judgment of the Supreme Court in Northern India Caterers case[1967] INSC 88(1967) 3 SCR 399 was required to be overruled. Khanna, J. observed: (SCC p. 425, para 22) “At the same time, it has to be borne in mind that certainty and continuity are essential ingredients of rule of law. Certainty in law would be considerably eroded and suffer a serious setback if the highest court of the land readily overrules the view expressed by it in earlier cases, even though that view has held the field for a number of years. In quite a number of cases which come up before this Court, two views are possible, and simply because the Court considers that the view not taken by the Court in the earlier case was a better view of the matter would not justify the overruling of the view. The law laid down by this Court is binding upon all courts in the country under Article 141 of the Constitution, and numerous cases all over the country are decided in accordance with the view taken by this Court. Many people arrange their affairs and large number of transactions also take place on the faith of the correctness of the view taken by this Court. It would create uncertainty, instability and confusion if the law propounded by this   Court on the basis of which numerous cases have been decided and many transactions have taken place is held to be not the correct law.”

The concern of this Court for rendering justice in a cause is not less important than the principle of finality of its judgment. “We are faced with competing principles — ensuring certainty and finality of a judgment of the Court of last resort and dispensing justice on reconsideration of a judgment on the ground that it is vitiated being in violation of the principles of natural justice or giving scope for apprehension of bias due to a Judge who participated in the decision-making process not disclosing his links with a party to the case, or on account of abuse of the process of the court. Such a judgment, far from ensuring finality, will always remain under the cloud of uncertainty. Almighty alone is the dispenser of absolute justice — a concept which is not disputed but by a few. We are of the view that though Judges of the highest court do their best, subject of course to the limitation of human fallibility, yet situations may arise, in the rarest of the rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of. In such case it would not only be proper but also obligatory both legally and morally to rectify the error. After giving our anxious consideration to the question, we are persuaded to hold that the duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty of judgment as though it is essentially in the public interest that a final judgment of the final court in the country should not be open to challenge, yet there may be circumstances, as mentioned above, wherein declining to reconsider the judgment would be   oppressive to judicial conscience and would cause perpetuation of irremediable injustice.”

A four-judge bench of this court in Sumer v. State of U.P. (2005) 7 SCC 220 observed as under: “In Rupa Ashok Hurra (supra) while providing for the remedy of curative petition, but at the same time to prevent abuse of such remedy and filing in that garb a second review petition as a matter of course, the Constitution Bench said that except when very strong reasons exist, the court should not entertain an application seeking reconsideration of an order of this Court which has become final on dismissal of review petition. In this view, strict conditions including filing of certificate by a Senior Advocate were provided in Rupa Ashok Hurra (supra). Despite it, the apprehension of the Constitution Bench that the remedy provided may not open the flood gates for filing a second review petition has come true as is evident from filing of large number of curative petitions. It was expected that the curative petitions will be filed in exceptional and in rarest of rare case but, in practice, it has just been opposite. This Court, observing that neither it is advisable nor possible to enumerate all the grounds on which curative petition may be entertained, said that nevertheless the petitioner is entitled to relief ex debito justitiae if he establishes (1) violation of principles of natural justice in that he was not a party to the lis but the judgment adversely affected his interests or, if he was a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice, and (2) where in the proceedings a learned Judge failed to disclose his connection with  109 the subject-matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner. To restrict filing of the curative petitions only in genuine cases, Rupa Ashok Hurra (supra) provided that the curative petition shall contain a certification by a Senior Advocate with regard to the fulfilment of all the requirements provided in the judgment. Unfortunately, in most of the cases, the certification is casual without fulfilling the requirements of the judgment.”

In Sita Ram Bhandar Society, New Delhi v. Lieutenant Governor, Government of NCT, Delhi & Others (2009)10 SCC 501, this Court held thus:

” We must also observe that the petitioner has been able to frustrate the acquisition and development of the land right from 1980 onwards by taking recourse to one litigation after the other. The record reveals that all the suits/writ petitions, etc. that had been filed had failed. Undoubtedly, every citizen has a right to utilise all legal means which are open to him in a bid to vindicate and protect his rights, but if the court comes to the conclusion that the pleas raised are frivolous and meant to frustrate and delay an acquisition which is in public interest, deterrent action is called for. This is precisely the situation in the present matter.

The appeals are, accordingly, dismissed with costs which are determined at rupees two lakhs. The respondents, shall, without further loss of time proceed against the appellant.”

This court in a recent judgment in M. Nagabhushana v. State of Karnataka and others (2011) 3 SCC 408 observed that principle of finality is passed on high principle of public policy. The court in para 13 of the said judgment observed as under:

“That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the color and pretence of law inasmuch as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of res judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of res judicata is not a technical doctrine but a fundamental principle which sustains the rule of law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing court for agitating on issues which have become final between the parties.”

In order to discourage a litigation which reopens the final judgment of this court, while dismissing the petition imposed costs of rupees 10 lakhs.  We find full corroboration of this principle from the cases of other countries. We deem it appropriate to mention some of these relevant cases in the succeeding paragraphs.

ENGLAND

The England cases have consistently taken the view that the judgments of final court must be considered final and conclusive. There must be certainty in the administration. Uncertainty can lead to injustice. Unless there are very exceptional or compelling reasons the judgment of apex courts should not be reopened.

In Regina v. Gough, [1993] UKHL 1[1993] 1 A.C. 646, with regards to setting aside judgments due to judicial bias, the House of Lords held that there “is only one established special category and that exists where the tribunal has a pecuniary or proprietary interest in the subject matter of the proceedings as in Dimes v. Proprietors of Grand Junction Canal , (1852) 3 H.L. Cases 759. The courts should hesitate long before creating any other special category since this will   immediately create uncertainty as to what are the parameters of that category and what is the test to be applied in the case of that category.” Lord Goff of Chievely stated that “I wish to draw attention to the fact that there are certain cases in which it has been considered that the circumstances are such that they must inevitably shake public confidence in the integrity of the administration of justice if the decision is to be allowed to stand. Such cases attract the full force of Lord Hewart C.J.’s requirement that justice must not only be done but must manifestly be seen to be done. These cases arise where a person sitting in a judicial capacity has a pecuniary interest in the outcome of the proceedings. In such a case, as Blackburn J. said in Reg. v. Rand (1866) L.R. 1 Q.B. 230, 232: “any direct pecuniary interest, however small, in the subject of inquiry, does disqualify a person from acting as a judge in the matter.” The principle is expressed in the maxim that nobody may be judge in his own cause (nemo judex in sua causa)… In such a case, therefore, not only is it irrelevant that there was in fact no bias on the part of the tribunal, but there is no question of investigating, from an objective point of view, whether there was any real likelihood of bias, or any reasonable suspicion of bias, on the facts of the particular case. The nature of the interest is such that public confidence in the administration of justice requires that the decision should not stand” (p. 661).

In R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) (1999) 2 W.L.R.  272, the House of Lords set aside one of its earlier orders. In this case, the majority at the House of Lords had earlier ruled whether Augusto Pinochet, the former dictator of Chile, could be extradited to Spain in order to stand trial for alleged crimes against humanity and was not entitled to sovereign immunity. Amnesty International had been an intervener in this case in opposition to Pinochet. Lord Hoffman, one of the majority judges, was a director of Amnesty International Charitable Trust, an organization controlled by Amnesty International, and Lady Hoffman had been working at AI’s international secretariat since 1977. The respondent was not aware of Lord Hoffman’s relationship to AI during the initial trial. In this case, the House of Lords cited with approval the respondents’ concession acknowledging the House of Lords’ jurisdiction to review its decisions – “In principle it must be that your Lordships, as the ultimate court of appeal, have power to correct any injustice caused by an earlier order of this House. There is no relevant statutory limitation on the jurisdiction of the House in this regard and therefore its inherent jurisdiction remains unfettered.”

According to the English law, the judgment of the Apex Court can be reviewed in exceptional circumstances particularly when the judge associated with any of the organizations to be a good ground for reviewing the judgment.

In Pinochet test in Regina (Edwards) v Environment Agency and others [2010] UKSC 57, the Supreme Court of the United Kingdom overruled an earlier order of costs made by the erstwhile apex court, the House of Lords, on the grounds that the House of Lords had made a substantive error in the original adjudication. However, this appeal was lodged under Rule 53 of the The (U.K.) Supreme Court Rules, 2009, 2009 No. 1603 (L. 17). Rule 53 provides as follows:

 (1) A party who is dissatisfied with the assessment of costs made at an oral hearing may apply for that decision to be reviewed by a single Justice and any application under this rule must be made in the appropriate form and be filed within 14 days of the decision. (2) The single Justice may (without an oral hearing) affirm the decision made on the assessment or may, where it appears appropriate, refer the matter  to a panel of Justices to be decided with or without an oral hearing. (3) An application may be made under this rule only on a question of principle and not in respect of the amount allowed on any item in the claim for costs.

In this case, Lord Hope, citing the Pinochet case stated that: The Supreme Court is a creature of statute. But it has inherited all the powers that were vested in the House of Lords as the ultimate court of appeal. So it has the same powers as the House had to correct any injustice caused by an earlier order of the House or this Court… In this case it seems that, through no fault of the appellant, an injustice may have been caused by the failure of the House to address itself to the correct test in order to comply with the requirements of [certain EU] directives [at para. 35].

CANADA

The Canadian Supreme Court is of the same view that judicial bias would be a ground for reviewing the judgment. In Wewaykum Indian Band v. Canada [2003] 2 SCR 259 the court relied on Taylor Ventures Ltd. (Trustee of) v. Taylor 2005 BCCA 350 where principle of judicial bias has been summarized.

The principles stated in Roberts regarding judicial bias were neatly summarized in Taylor Ventures Ltd. (Trustee of) (supra), where Donald J.A. stated – (i) a judge’s impartiality is presumed;

(ii) a party arguing for disqualification must establish that the circumstances justify a finding that the judge must be disqualified;

(iii) the criterion of disqualification is the reasonable apprehension of bias;

(iv) the question is what would an informed, reasonable and right-minded person, viewing the matter realistically and practically, and having thought the matter through, conclude;

(iv) the test for disqualification is not satisfied unless it is proved that the informed, reasonable and right-minded person would think that it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly;

(v) the test requires demonstration of serious grounds on which to base the apprehension;

(vi) each case must be examined contextually and the inquiry is fact-specific (at para 7).

Cases from Australia also support the proposition that a final judgment cannot ordinarily be reopened, and that such steps can be taken only in exceptional circumstances.

In State Rail Authority of New South Wales v. Codelfa Constructions Propriety Limited (1982) 150 CLR 29, the High Court of Australia observed:

“… it is a power to be exercised with great caution. There may be little difficulty in a case where the orders have not been perfected and some mistake or misprision is disclosed. But in other cases it will be a case of weighing what would otherwise be irremediable injustice against the public interest in maintaining the finality of litigation. The circumstances that will justify a rehearing must be quite exceptional. …”

In Bailey v. Marinoff [1971] HCA 49(1971) 125 CLR 529, Judge Gibbs of the High Court of Australia observed in a dissenting opinion:

“It is a well-settled rule that once an order of a court has been passed and entered or otherwise perfected in a form which correctly expresses the intention with which it was made the court has no jurisdiction to alter it. .. ….The rule tests on the obvious principle that it is desirable that there be an end to litigation and on the view that it would be mischievous if there were jurisdiction to rehear a matter decided after a full hearing. However, the  rule is not inflexible and there are a number of exceptions to it in addition to those that depend on statutory provisions such as the slip rule found in most rules of court. Indeed, as the way in which I have already stated the rule implies, the court has the power to vary an order so as to carry out its own meaning or to make plain language which is doubtful, and that power does not depend on rules of court, but is inherent in the court….”

And, further:

“The authorities to which I have referred leave no doubt that a superior court has an inherent power to vary its own orders in certain cases. The limits of the power remain undefined, although the remarks of Lord Evershed already cited suggest that it is a power that a court may exercise “if, in its view, the purposes of justice require that it should do so”.

In DJL v. Central Authority [2000] HCA 17(2000) 170 ALR 659, the High Court of Australia observed:

“…It is now recognized both in Australia and England that orders made by ultimate appellate courts may be reopened by such courts in exceptional circumstances to repair accidents and oversights which would otherwise occasion a serious injustice. In my view, this can be done although the order in question has been perfected. The reopening may be ordered after due account is taken of the reasons that support the principle of finality of litigation. The party seeking reopening bears a heavy burden to demonstrate that the   exceptional course is required “without fault on his part. …”

Lastly, in Lexcray Pty. Ltd. v. Northern Territory of Australia 2003 NTCA 11, the Court appeals of the Supreme Court of the Northern Territory expressly stated:

“…As a final court of appeal the High Court of Australia has inherent jurisdiction to vacate its orders in cases where there would otherwise be an irremediable injustice….”

American courts also follows a similar pattern. In United States of America v. Ohio Power Company 353 US 98 (1957), the U.S. Supreme Court vacated its earlier order denying a timely petition for rehearing, on the ground that “the interest in finality of litigation must yield where interests of justice would make unfair, strict application of Supreme Court’s Rules.

In Raymond G. Cahill v. The New York, New Haven and Hartford Railroad Company [1956] USSC 56351 US 183, the Supreme Court observed:

“…There are strong arguments for allowing a second petition for rehearing where a rigid   application of this rule would cause manifest injustice.”

FIJI

The Supreme Court of Fiji Islands incorporating Australian and British case law summarized the law applicable to review of its judgments. It has been held that the Supreme Court can review its judgments pronounced or orders made by it. The power of the appellate courts to re- open and review their orders is to be exercised with great caution.

The cases establish that the power of appellate courts to re-open and review their orders is to be exercised with great caution. The power, and the occasions for its exercise were considered in In Re Transferred Civil Servants (Ireland) Compensation (1929) AC 242, 248-52; and State Rail Authority NSW v Codelfa Construction Pty Ltd (1982) HCA 51 : [1982] HCA 51(1982) 150 CLR 29, 38-9, 45-6, where earlier Privy Council cases are referred to. The principles were summarised   in Smith v NSW Bar Association (1992) 176 CLR 252, 265 where the High Court of Australia said:

“The power is discretionary and, although it exists up until the entry of judgment, it is one that is exercised having regard to the public interest in maintaining the finality of litigation. Thus, if reasons for judgment have been given, the power is only exercised if there is some matter calling for review … these considerations may tend against the re-opening of a case, but they are not matters which bear on the nature or the review … once the case is re-opened … the power to review a judgment … where the order has not been entered will not ordinarily be exercised to permit a general re- opening … But … once a matter has been re- opened, the nature and extent of the review must depend on the error or omission which has led to that step being taken.”

The principles were further considered in Autodesk Inc v Dyason (No 2) (1993) HCA 6 : [1993] HCA 6(1993) 176 CLR 300, 303 where Mason CJ said:

“What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and this … cannot be attributed solely to the neglect of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases.”

The ratio of these judgments is that a court of final appeal has power in truly exceptional circumstances to recall its order even after they have been entered in order to avoid irremediable injustice.

Reviewing of various cases of different jurisdictions lead to irresistible conclusion that though the judgments of the apex court can also be reviewed or recalled but it must be done in extremely exceptional circumstances where there is gross violation of principles of natural justice.

In a case where the aggrieved party filing a review or curative petition was not a party to the lis but the judgment adversely affected his interest or he was party to the lis was not served with notice of the proceedings and the matter proceeded as if he had notice. This court in State of M.P. v. Sugar Singh & Others on 9th March, 2010 passed the following order in a curative petition :

“Though there were eight accused persons, only four accused were arrayed as party respondents in the said appeals namely, Sughar, Laxman, Onkar and Ramesh. Other accused, namely,Bhoja, Raghubir, Puran and Balbir were not impleaded as  respondents in these Criminal Appeals and consequently notices were not issued to them. This Court, by judgment on 7th November, 2008 in the aforesaid Criminal Appeals, reversed the acquittal of the accused by the High Court and found them guilty of the offences punishable under Section 304 Part-II read with Section 149 of the I.P.C. and sentenced them to undergo imprisonment for a period of six years. The conviction of the accused for the offences punishable under Section 148 as also Section 326 read with the Section 149 of the I.P.C. and the sentence imposed by the Sessions Court in regard to the said offences was upheld by this Court.

We have heard learned counsel for the petitioners. The respondent State, though served with a notice through standing counsel, has not chosen to enter appearance. These Curative Petitions have been filed by accused No.2 (Raghubir) and by accused no.4 and 5 (Sughar Singh and Laxman) on the ground that acquittal of Bhoja, Raghubir, Puran and Balbir have been reversed without affording an opportunity of being heard. We see that there is serious violation of principles of natural justice as the acquittal of all the accused has been set aside even though only four of them were made respondents before this Court and the others were not heard. We are, therefore, constrained to recall the 3 judgment passed by this Court in Criminal Appeal Nos.1362- 1363 of 2004 on 7th November, 2008.

Consequently, the accused Sughar Singh, Laxman, Onkar and Ramesh, if they are in custody, are directed to be released forthwith.

In the result, these Curative Petitions are disposed of and the Criminal Appeal Nos.1362-  1363 of 2004 are restored to the file for being heard afresh with a direction that the other four accused (Bhoja, Raghubir, Puran and Balbir) be impleaded as respondents and all accused be served with fresh notices.”

In the instant case, the applicants had adequate opportunity and were heard by the court at length on number of occasions and only thereafter the writ petition was disposed of. The applicants aggrieved by the said judgment filed a review petition. This review petition was also dismissed. In the instant case even the curative petition has also been dismissed. The applicants now want to reopen this case by filing these interlocutory applications.

The applicants certainly cannot be provided an entry by back door method and permit the unsuccessful litigant to re- agitate and reargue their cases. The applicants have filed these applications merely to avoid compliance of the order of the court. The applicants have been successful in their endeavour and have not permitted the judgment delivered on 3.2.1996 to acquire finality till date. It is strange that other  respondents did not implement the final order of this court without there being any order or direction of this court. These applications being devoid of any merit deserve to be dismissed with heavy costs.

The other important principles which need elucidation are regarding unjust enrichment, restitution and compound inte rests.

Dr. Arun Mohan, Senior Advocate of this court in a recently published book with the title “Justice, Courts and Delays” analytically, lucidly while taking in view pragmatic realities elucidated concepts of unjust enrichment, restitution and compound interest.

By the judgment dated 13.02.1996 this court fixed the liability but did not fix any specific amount, which was ordered to be ascertained. It was on the lines of a preliminary decree in a suit which determines the liability, but leaves the precise amount to be ascertained in further proceedings and upon the process of ascertainment being completed, a final decree for payment of the precise amount is passed.

By judgment dated 4.11.1997 this Court, accepting the ascertainment, fixed the amount. The order reads as under:

“… … …remedial measures taken on the basis of the NEERI report shall be treated as final.

We accept the proposal submitted by the Government of India for the purpose of taking remedial measures by appointing National Productivity Council as the Project Management Consultant. In our opinion the Ministry of Environment and Forests, Government of India has rightly made a demand for Rs.37.385 crores.”

The exact liability was quantified which the applicant- M/s Hindustan Agro Chemical Ltd. was under an obligation to pay. The liability to pay arose on that particular date i.e. 4.11.1997. In other words, this was in the lines of a final decree pursuant to a preliminary decree.

On that judgment being passed, the position of the applicant in Application No.44 was that of `judgment-debtor’ and the applicant became liable to pay forthwith.

Admittedly, the amount has not been paid. Instead, that payment they sought to postpone by raising various challenges in this court and in the meantime `utilised’ that   money, i.e., benefitted. As a consequence, the non-applicants (respondents-states herein) were `deprived’ of the use of that money for taking remedial measures. The challenge has now – nearly 14 years later – been finally decided against them.

The appellant they must pay the amount is one thing but should they pay only that amount or something more? If the period were a few days or months it would have been different but here it is almost 14 years have been lapsed and amount has not been paid. The questions therefore are really three:

1.Can a party who does not comply with the court order be permitted to retain the benefits of his own wrong of non-compliance?

2.Whether the successful party be not compensated by way of restitution for deprivation of its legitimate dues for more than fourteen years? and

3.Whether the court should not remove all incentives for not complying with the judgment of the court? Answering these questions will necessitate analysis of certain   concepts.

It is settled principle of law that no one can take advantage of his own wrong.

Unless courts disgorge all benefits that a party availed by obstruction or delays or non-compliance, there will always be incentive for non compliance, and parties are ingenious enough to come up with all kinds of pleas and other tactics to achieve their end because they know that in the end the benefit will remain with them.

Whatever benefits a person has had or could have had by not complying with the judgment must being disgorged and paid to the judgment creditor and not, allowed to be retained by the judgment-debtor. This is the bounden duty and obligation of the court.

In fact, it has to be looked from the position of the creditor. Unless the deprivation by reason of delay is fully restituted, the creditor as a beneficiary remains a loser to the extent of the un-restituted amount.

UNJUST ENRICHMENT

Unjust enrichment has been defined as: “A benefit obtained from another, not intended as a gift and not legally justifiable, for which the beneficiary must make restitution or recompense.” See Black’s Law Dictionary, Eighth Edition (Bryan A. Garner) at page 1573.

A claim for unjust enrichment arises where there has been an “unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience.”

`Unjust enrichment’ has been defined by the court as the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has  and retains money or benefits which in justice and equity belong to another.

Unjust enrichment is “the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience.” A defendant may be liable “even when the defendant retaining the benefit is not a wrongdoer” and “even though he may have received [it] honestly in the first instance.” (Schock v. Nash, 732 A.2d 217, 232-33 (Delaware. 1999). USA)

Unjust enrichment occurs when the defendant wrongfully secures a benefit or passively receives a benefit which would be unconscionable to retain.

In the leading case of Fibrosa v. Fairbairn, [1942] 2 All ER 122, Lord Wright stated the principle thus :

“…

.(A)ny civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from another which it is against conscience that he should keep. Such remedies in English law are   generically different from remedies in contract or in tort, and are now recognized to fall within a third category of the common law which has been called quasi-contract or restitution.”

Lord Denning also stated in Nelson v. Larholt, [1947] 2 All ER 751 as under:- “It is no longer appropriate, however, to draw a distinction between law and equity. Principles have now to be stated in the light of their combined effect. Nor is it necessary to canvass the niceties of the old forms of action. Remedies now depend on the substance of the right, not on whether they can be fitted into a particular frame-work. The right here is not peculiar to equity or contract or tort, but falls naturally within the important category of cases where the court orders restitution if the justice of the case so requires.”

The above principle has been accepted in India. This Court in several cases has applied the doctrine of unjust enrichment.

RESTITUTION AND COMPOUND INTEREST

American Jurisprudence 2d. Volume 66 Am Jur 2d defined Restitution as follows:  “The word `restitution’ was used in the earlier common law to denote the return or restoration of a specific thing or condition. In modern legal usage, its meaning has frequently been extended to include not only the restoration or giving back of something to its rightful owner, but also compensation, reimbursement, indemnification, or reparation for benefits derived from, or for loss or injury caused to, another. As a general principle, the obligation to do justice rests upon all persons, natural and artificial; if one obtains the money or property of others without authority, the law, independently of express contract, will compel restitution or compensation.”

While Section (‘) 3 (Unjust Enrichment) reads as under:

“The phrase “unjust enrichment” is used in law to characterize the result or effect of a failure to make restitution of, or for, property or benefits received under such circumstances as to give rise to a legal or equitable obligation to account therefor. It is a general principle, underlying various legal doctrines and remedies, that one person should not be permitted unjustly to enrich himself at the expense of another, but should be required to make restitution of or for property or benefits received, retained, or appropriated, where it is just and equitable that such restitution be made, and where such action involves no violation or frustration of law or opposition to public policy, either directly or indirectly.”

Unjust enrichment is basic to the subject of restitution, and is indeed approached as a fundamental principle thereof. They are usually linked together, and restitution is frequently based upon the theory of unjust enrichment. However, although unjust enrichment is often referred to or regarded as a ground for restitution, it is perhaps more accurate to regard it as a prerequisite, for usually there can be no restitution without unjust enrichment. It is defined as the unjust retention of a benefit to the loss of another or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another.

While the term `restitution’ was considered by the Supreme Court in South-Eastern Coalfields 2003 (8) SCC 648 and other cases excerpted later, the term `unjust   enrichment’ came to be considered in Sahakari Khand Udyog Mandal Ltd vs Commissioner of Central Excise & Customs ((2005) 3 SCC 738).

This Court said: “`Unjust enrichment’ means retention of a benefit by a person that is unjust or inequitable. `Unjust enrichment’ occurs when a person retains money or benefits which in justice, equity and good conscience, belong to someone else.”

The terms `unjust enrichment’ and `restitution’ are like the two shades of green – one leaning towards yellow and the other towards blue. With restitution, so long as the deprivation of the other has not been fully compensated for, injustice to that extent remains. Which label is appropriate under which circumstances would depend on the facts of the particular case before the court. The courts have wide powers to grant restitution, and more so where it relates to misuse or non-compliance with court orders.

We may add that restitution and unjust enrichment, along with an overlap, have to be viewed with reference to the   two stages, i.e., pre-suit and post-suit. In the former case, it becomes a substantive law (or common law) right that the court will consider; but in the latter case, when the parties are before the court and any act/omission, or simply passage of time, results in deprivation of one, or unjust enrichment of the other, the jurisdiction of the court to levelise and do justice is independent and must be readily wielded, otherwise it will be allowing the Court’s own process, along with time delay, to do injustice.

For this second stage (post-suit), the need for restitution in relation to court proceedings, gives full jurisdiction to the court, to pass appropriate orders that levelise. Only the court has to levelise and not go further into the realm of penalty which will be a separate area for consideration altogether.

This view of law as propounded by the author Graham Virgo in his celebrated book on “The Principle of Law of Restitution” has been accepted by a later decision of the House of Lords (now the UK Supreme Court) reported as  Sempra Metals Ltd (formerly Metallgesellschaft Limited) v Her Majesty’s Commissioners of Inland Revenue and Another [2007] UKHL 34 = [2007] UKHL 34[2007] 3 WLR 354 = [2008] 1 AC 561 = [2007] UKHL 34[2007] All ER (D) 294.

In similar strain, across the Altantic Ocean, a nine judge Bench of the Supreme Court of Canada in Bank of America Canada vs Mutual Trust Co. [2002] 2 SCR 601 = 2002 SCC 43 (both Canadian Reports) took the view :

“There seems in principle no reason why compound interest should not be awarded. Had prompt recompense been made at the date of the wrong the plaintiff should have had a capital sum to invest; the plaintiff would have received interest on it at regular intervals and would have invested those sums also. By the same token the defendant will have had the benefit of compound interest. Although not historically available, compound interest is well suited to compensate a plaintiff for the interval between when damages initially arise and when they are finally paid.”

This view seems to be correct and in consonance with the principles of equity and justice.

Another way of looking at it is suppose the judgment- debtor had borrowed the money from the nationalised bank as a clean loan and paid the money into this court. What would be the bank’s demand.

In other words, if payment of an amount equivalent of what the ledger account in the nationalised bank on a clean load would have shown as a debit balance today is not paid and something less than that is paid, that differential or shortfall is what there has been : (1) failure to restitute; (2) unfair gain by the non-complier; and (3) provided the incentive to obstruct or delay payment.

Unless this differential is paid, justice has not been done to the creditor. It only encourages non-compliance and litigation. Even if no benefit had been retained or availed even then, to do justice, the debtor must pay the money. In other words, it is this is not only disgorging all the benefits but making the creditor whole i.e. ordering restitution in full and not dependent on what he might have made or benefitted is what justice requires.

LEGAL POSITION UNDER THE CODE OF CIVIL PROCEDURE

One reason the law has not developed on this is because of the wording of Section 34 of the Code of Civil Procedure which still proceeds on the basis of simple interest. In fact, it is this difference which prompts much of our commercial litigation because the debtor feels – calculates and assesses – that to cause litigation and then to contest with obstructions and delays will be beneficial because the court is empowered to allow only simple interest. A case for law reform on this is a separate issue.

In the point under consideration, which does not arise from a suit for recovery under the Code of Civil Procedure, the inherent powers in the court and the principles of justice and equity are each sufficient to enable an order directing payment of compound interest. The power to order compound interest as part of restitution cannot be disputed, otherwise there can never be restitution.

PRECEDENTS ON EXERCISE OF POWERS BY THE COURT TOMAKE THE BENEFICIARY WHOLE – RESTITUTION

This court in Grindlays Bank Limited vs Income Tax Officer, Calcutta [1980] INSC 3(1980) 2 SCC 191 observed as under :- “…When passing such orders the High Court draws on its inherent power to make all such orders as are necessary for doing complete justice between the parties. The interests of justice require that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court, by the mere circumstance that it has initiated a proceeding in the court, must be neutralised. The simple fact of the institution of litigation by itself should not be permitted to confer an advantage on the party responsible for it. …”

In Ram Krishna Verma and Others vs State of U.P. and Others [1992] INSC 99(1992) 2 SCC 620 this court observed as under :- “The 50 operators including the appellants/ private operators have been running their stage carriages by blatant abuse of the process of the court by delaying the hearing as directed in Jeevan Nath Bahl’s case and the High Court earlier thereto. As a fact, on the expiry of the initial period of grant after Sept. 29, 1959 they lost the right to obtain renewal or to ply their vehicles, as this Court declared the scheme to be operative. However, by sheer abuse of the process of law they are continuing to ply their vehicles pending hearing of the objections. This Court in Grindlays Bank Ltd. vs Income-tax  Officer – [1990] 2 SCC 191 held that the High Court while exercising its power under Article 226 the interest of justice requires that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised. It was further held that the institution of the litigation by it should not be permitted to confer an unfair advantage on the party responsible for it. In the light of that law and in view of the power under Article 142(1) of the Constitution this Court, while exercising its jurisdiction would do complete justice and neutralise the unfair advantage gained by the 50 operators including the appellants in dragging the litigation to run the stage carriages on the approved route or area or portion thereof and forfeited their right to hearing of the objections filed by them to the draft scheme dated Feb. 26, 1959. …”

This court in Kavita Trehan vs Balsara Hygiene Products [1994] INSC 353(1994) 5 SCC 380 observed as under :- “The jurisdiction to make restitution is inherent in every court and will be exercised whenever the justice of the case demands. It will be exercised under inherent powers where the case did not strictly fall within the ambit of Section 144. Section 144 opens with the words “Where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, …”. The instant case may not strictly fall within the terms of Section 144; but the aggrieved party in such a case can appeal to the larger and general powers of restitution inherent in every court.”

This court in Marshall Sons & Co. (I) Ltd. v. Sahi Oretrans (P) Ltd. and Another (1999) 2 SCC 325 observed as under :- “From the narration of the facts, though it appears to us, prima facie, that a decree in favour of the appellant is not being executed for some reason or the other, we do not think it proper at this stage to direct the respondent to deliver the possession to the appellant since the suit filed by the respondent is still pending. It is true that proceedings are dragged for a long time on one count or the other and on occasion become highly technical accompanied by unending prolixity, at every stage providing a legal trap to the unwary. Because of the delay unscrupulous parties to the proceedings take undue advantage and person who is in wrongful possession draws delight in delay in disposal of the cases by taking undue advantage of procedural complications. It is also known fact that after obtaining a decree for possession of immovable property, its execution takes long time. In such a situation for protecting the interest of judgment creditor, it is necessary to pass appropriate order so that reasonable mesne profit which may be equivalent to the market rent is paid by a person who is holding over the property. In appropriate cases, Court may appoint Receiver and direct the person who is holding over the property to act as an agent of the Receiver with a direction to deposit the royalty amount fixed by the Receiver or pass such other order which may meet the interest of justice. This may prevent further injury to the plaintiff in whose favour decree is passed and to  protect the property including further alienation.”

In Padmawati vs Harijan Sewak Sangh – CM (Main) No.449 of 2002 decided by the Delhi high Court on 6.11.2008, the court held as under:- “The case at hand shows that frivolous defences and frivolous litigation is a calculated venture involving no risks situation. You have only to engage professionals to prolong the litigation so as to deprive the rights of a person and enjoy the fruits of illegalities. I consider that in such cases where Court finds that using the Courts as a tool, a litigant has perpetuated illegalities or has perpetuated an illegal possession, the Court must impose costs on such litigants which should be equal to the benefits derived by the litigant and harm and deprivation suffered by the rightful person so as to check the frivolous litigation and prevent the people from reaping a rich harvest of illegal acts through the Court. One of the aims of every judicial system has to be to discourage unjust enrichment using Courts as a tool. The costs imposed by the Courts must in all cases should be the real costs equal to deprivation suffered by the rightful person.”

We approve the findings of the High Court of Delhi in the aforementioned case.

The Court also stated: “Before parting with this case,  we consider it necessary to observe that one of the main reasons for over-flowing of court dockets is the frivolous litigation in which the Courts are engaged by the litigants and which is dragged as long as possible. Even if these litigants ultimately loose the lis, they become the real victors and have the last laugh. This class of people who perpetuate illegal acts by obtaining stays and injunctions from the Courts must be made to pay the sufferer not only the entire illegal gains made by them as costs to the person deprived of his right and also must be burdened with exemplary costs. Faith of people in judiciary can only be sustained if the persons on the right side of the law do not feel that even if they keep fighting for justice in the Court and ultimately win, they would turn out to be a fool since winning a case after 20 or 30 years would make wrongdoer as real gainer, who had reaped the benefits for all those years. Thus, it becomes the duty of the Courts to see that such wrongdoers are discouraged at every step and even if they succeed in prolonging the litigation due to their money power, ultimately they must suffer the costs of all these  144 years long litigation. Despite settled legal positions, the obvious wrong doers, use one after another tier of judicial review mechanism as a gamble, knowing fully well that dice is always loaded in their favour, since even if they lose, the time gained is the real gain. This situation must be redeemed by the Courts.”

Against this judgment, Special Leave to Appeal (Civil) No 29197/2008 was preferred to the this Court. The Court passed the following order:

“We have heard learned counsel appearing for the parties. We find no ground to interfere with the well-considered judgment passed by the High Court. The Special Leave Petition is, accordingly, dismissed.”

Interest on interest

This court in Alok Shanker Pandey vs Union of India & Others (2007) 3 SCC 545 observed as under:- “We are of the opinion that there is no hard and fast rule about how much interest should be granted and it all depends on the facts and circumstances of the each case. We are of the  opinion that the grant of interest of 12% per annum is appropriate in the facts of this particular case. However, we are also of the opinion that since interest was not granted to the appellant along with the principal amount the respondent should then in addition to the interest at the rate of 12% per annum also pay to appellant interest at the same rate on the aforesaid interest from the date of payment of instalments by the appellant to the respondent till the date of refund on this amount, and the entire amount mentioned above must be paid to the appellant within two months from the date of this judgment.

It may be mentioned that there is misconception about interest. Interest is not a penalty or punishment at all, but it is the normal accretion on capital.”

Compound Interest

To do complete justice, prevent wrongs, remove incentive for wrongdoing or delay, and to implement in practical terms the concepts of Time Value of Money, restitution and unjust enrichment noted above – or to simply levelise – a convenient approach is calculating interest. But here interest has to be calculated on compound basis – and not simple – for the latter leaves much uncalled for benefits in the hands of the wrongdoer.

Further, a related concept of inflation is also to be kept in mind and the concept of compound interest takes into account, by reason of prevailing rates, both these factors, i.e., use of the money and the inflationary trends, as the market forces and predictions work out.

Some of our statute law provide only for simple interest and not compound interest. In those situations, the courts are helpless and it is a matter of law reform which the Law Commission must take note and more so, because the serious effect it has on administration of justice. However, the power of the court to order compound interest by way of restitution is not fettered in any way. We request the Law Commission to consider and recommend necessary amendments in relevant laws.

`Compound interest’ is defined in Black’s Law Dictionary, Eighth Edition (Bryan A. Garner) at page 830 as `Interest paid on both the principal and the previously accumulated interest.’ It is a method of arriving at a figure   which nears the time value of money submitted under Head-2 earlier.

As noted, compound interest is a norm for all commercial transactions.

Graham Virgo in his important book on `The Principles of the Law of Restitution” at pp26-27 has stated and relevant portion is reproduced as under:

“In Westdeutsche Landesbank Girozentrale v London Borough Council [1996] UKHL 121996 A.C. 669 the issue for the House of Lords was whether compound interest was available in respect of all restitutionary claims. By a majority it was decided that, since the jurisdiction to award compound interest was equitable, compound interest could only be awarded in respect of equitable restitutionary claims. Consequently, where the claim was for money had and received the claimant could only obtain simple interest because this was a common law claim. The majority supported their conclusion by reference to a number of different arguments. In particular, they asserted that, since Parliament had decided in 1981 that simple interest should be awarded on claims at common law, it was not for the House of Lords to award compound interest in respect of such claims. But the Supreme Court Act 1981 does not specifically exclude the award of compound interest in respect of common law claims. Rather, it recognizes that the court can award simple interest for such claims. The equitable  148 jurisdiction to award compound interest is still available in appropriate cases.

In two very strong dissenting judgments, Lords Goff and Woolf rejected the argument of the majority. They asserted that, since the policy of the law of restitution was to remove benefits from the defendant, compound interest should be available in respect of all restitutionary claims, regardless of whether they arise at law or in equity. This argument can be illustrated by the following example. In the straightforward case where the claimant pays money to the defendant by mistake and defendant is liable to repay that money, the liability arises from the moment the money is received by the defendant, who has the use of it and so should pay the claimant for the value of that benefit. This was accepted by all the judges in the case. The difficulty relates to the valuation of this benefit. If the defendant was to borrow an equivalent amount of money from a financial institution, he or she would be liable to pay compound interest to that institution. It follows that the defendant has saved that amount of money and so this is the value of the benefit which the defendant should restore to the claimant, in addition to the value of the money which the defendant received in the first place. If it could be shown that, had the defendant borrowed the equivalent amount of money, the institution would only have paid simple interest, it would be appropriate for the interest awarded to the claimant to be simple rather than compound. Usually, however, the interest awarded in commercial transactions will be compound interest.”

In Marshall sons and company (I) Limited v. Sahi Oretrans (P) Limited and another (1999) 2 SCC 325 this court in para 4 of the judgment observed as under:

“…It is true that proceedings are dragged for a long time on one count or the other and, on occasion, become highly technical accompanied by unending prolixity at every stage providing a legal trap to the unwary. Because of the delay, unscrupulous parties to the proceedings take undue advantage and a person who is in wrongful possession draws delight in delay in disposal of the cases by taking undue advantage of procedural complications. It is also a known fact that after obtaining a decree for possession of immovable property, its execution takes a long time. In such a situation, for protecting the interest of the judgment-creditor, it is necessary to pass appropriate orders so that reasonable mesne profit which may be equivalent to the market rent is paid by a person who is holding over the property. In appropriate cases, the court may appoint a Receiver and direct the person who is holding over the property to act as an agent of the Receiver with a direction to deposit the royalty amount fixed by the Receiver or pass such other order which may meet the interest of justice. This may prevent further injury to the plaintiff in whose favour the decree is passed and to protect the property including further alienation. …”

In Ouseph Mathai and others v. M. Abdul Khadir (2002) 1 SCC 319 this court reiterated the legal position that   the stay granted by the court does not confer a right upon a party and it is granted always subject to the final result of the matter in the court and at the risk and costs of the party obtaining the stay. After the dismissal, of the lis, the party concerned is relegated to the position which existed prior to the filing of the petition in the court which had granted the stay. Grant of stay does not automatically amount to extension of a statutory protection. 210. This court in South Eastern Coalfields Limited v. State of M.P. and others (2003) 8 SCC 648 on examining the principle of restitution in para 26 of the judgment observed as under:

“In our opinion, the principle of restitution takes care of this submission. The word “restitution” in its etymological sense means restoring to a party on the modification, variation or reversal of a decree or order, what has been lost to him in execution of decree or order of the court or in direct consequence of a decree or order (see Zafar Khan v. Board of Revenue, U.P – (1984) Supp SCC 505) In law, the term “restitution” is used in three senses: (i) return or restoration of some specific thing to its rightful owner or status; (ii) compensation for benefits derived from a wrong done to another; and (iii) compensation or reparation for the loss caused to another.”

The court in para 28 of the aforesaid judgment very carefully mentioned that the litigation should not turn into a fruitful industry and observed as under:

“… … …Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced. We are, therefore, of the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the court withholding the release of money had remained in operation.”

The court in the aforesaid judgment also observed that once the doctrine of restitution is attracted, the interest is often a normal relief given in restitution. Such interest is not controlled by the provisions of the Interest Act of 1839 or 1978.

In a relatively recent judgment of this court in Amarjeet Singh and others v. Devi Ratan and others (2010) 1 SCC 417 the court in para 17 of the judgment observed as under:

“No litigant can derive any benefit from mere pendency of case in a court of law, as the interim order always merges in the final order to be passed in the case and if the writ petition is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of its own wrongs by getting an interim order and thereafter blame the court. The fact that the writ is found, ultimately, devoid of any merit, shows that a frivolous writ petition had been filed. The maxim actus curiae neminem gravabit, which means that the act of the court shall prejudice no one, becomes applicable in such a case. In such a fact situation the court is under an obligation to undo the wrong done to a party by the act of the court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised, as the institution of litigation cannot be permitted to confer any advantage on a suitor from delayed action by the act of the court. … …”

In another recent judgment of this court in Kalabharati Advertising v. Hemant Vimalnath Narichania and others(2010) 9 SCC 437 this court in para 15 observed as under:

”No litigant can derive any benefit from the mere pendency of a case in a court of law, as the interim order always merges into the final order to be passed in the case and if the case is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting an interim order and thereafter blame the court. The fact that the case is found, ultimately, devoid of any merit, or the party withdrew the writ petition, shows that a frivolous writ petition had been filed. The maxim actus curiae neminem gravabit, which means that the act of the court shall prejudice no one, becomes applicable in such a case. In such a situation the court is under an obligation to undo the wrong done to a party by the act of the court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised, as the institution of litigation cannot be permitted to confer any advantage on a party by the delayed action of the court.”

In consonance with the concept of restitution, it was observed that courts should be careful and pass an order neutralizing the effect of all consequential orders passed in pursuance of the interim orders passed by the court. Such express directions may be necessary to check the rising trend among the litigants to secure the relief as an interim measure and then avoid adjudication on merits.

In consonance with the principle of equity, justice and good conscience judges should ensure that the legal process is not abused by the litigants in any manner. The court should never permit a litigant to perpetuate illegality by abusing the legal process. It is the bounden duty of the court to ensure that dishonesty and any attempt to abuse the legal process must be effectively curbed and the court must ensure that there is no wrongful, unauthorized or unjust gain for anyone by the abuse of the process of the court. One way to curb this tendency is to impose realistic costs, which the respondent or the defendant has in fact incurred in order to defend himself in the legal proceedings. The courts would be fully justified even imposing punitive costs where legal process has been abused. No one should be permitted to use the judicial process for earning undeserved gains or unjust profits. The court must effectively discourage fraudulent, unscrupulous and dishonest litigation.

The court’s constant endeavour must be to ensure that everyone gets just and fair treatment. The court while  rendering justice must adopt a pragmatic approach and in appropriate cases realistic costs and compensation be ordered in order to discourage dishonest litigation. The object and true meaning of the concept of restitution cannot be achieved or accomplished unless the courts adopt a pragmatic approach in dealing with the cases.

This court in a very recent case Ramrameshwari Devi and Others v. Nirmala Devi and Others 2011(6) Scale 677 had an occasion to deal with similar questions of law regarding imposition of realistic costs and restitution. One of us (Bhandari, J.) was the author of the judgment. It was observed in that case as under:

“While imposing costs we have to take into consideration pragmatic realities and be realistic what the defendants or the respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc. The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and  156 defend the litigation in various courts. The appellants in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts. The appellants have also wasted judicial time of the various courts for the last 40 years.”

We reiterate that the finality of the judgment of the Apex Court has great sanctity and unless there are extremely compelling or exceptional circumstances, the judgments of the Apex Court should not be disturbed particularly in a case where review and curative petitions have already been dismissed.

This Court has consistently taken the view that the judgments delivered by this Court while exercising its jurisdiction under Article 136 of the Constitution cannot be reopened in a writ petition filed under Article 32 of the Constitution. In view of this legal position, how can a final judgment of this Court be reopened by merely filing interlocutory applications where all possible legal remedies have been fully exhausted? When we revert to the facts of this case, it becomes abundantly clear that this Court delivered   final judgment in this case way back in 1996. The said judgment has not been permitted to acquire finality because the respondent Nos. 4 to 8 had filed multiple interlocutory applications and has ensured non-compliance of the judgment of this Court.

On consideration of pleadings and relevant judgments of the various courts, following irresistible conclusion emerge:

i) The judgment of the Apex Court has great sanctity and unless there are extremely compelling, overriding and exceptional circumstances, the judgment of the Apex Court should not be disturbed particularly in a case where review and curative petitions have already been dismissed

ii) The exception to this general rule is where in the proceedings the concerned judge failed to disclose the connection with the subject matter or the parties giving scope of an apprehension of bias and the judgment adversely affected the petitioner.

iii) The other exception to the rule is the circumstances incorporated in the review or curative petition are such that they must inevitably shake public confidence in the integrity of the administration of justice if the judgment or order is allowed to stand.

These categories are illustrative and not exhaustive but only in such extremely exceptional circumstances the order can be recalled in order to avoid irremedial injustice.

The other aspect which has been dealt with in great details is to neutralize any unjust enrichment and undeserved gain made by the litigants. While adjudicating, the courts must keep the following principles in view.

1. It is the bounden duty and obligation of the court to neutralize any unjust enrichment and undeserved gain made by any party by invoking the jurisdiction of the court.

2. When a party applies and gets a stay or injunction from the court, it is always at the risk and responsibility of the party applying. An order of stay cannot be presumed to be conferment of additional right upon the litigating party.

3. Unscrupulous litigants be prevented from taking undue advantage by invoking jurisdiction of the Court.

4. A person in wrongful possession should not only be removed from that place as early as possible but be compelled to pay for wrongful use of that premises fine, penalty and costs. Any leniency would seriously affect the credibility of the judicial system.

5. No litigant can derive benefit from the mere pendency of a case in a court of law.

6. A party cannot be allowed to take any benefit of his own wrongs.

7. Litigation should not be permitted to turn into a fruitful industry so that the unscrupulous litigants are encouraged to invoke the jurisdiction of the court.

8. The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of courts.

Centre Justifies Keeping CBI, NIA Etc Out Of RTI Act Ambit

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Terming the right to information as “not an absolute one”, the Centre defended in the Delhi High Court its decision to keep key probe and intelligence agencies like CBI, NIA and NATGRID out of the transparency law ambit, asserting that it was “in larger public interest and in the interest of national security.”

In a 16-page affidavit submitted to the bench of Chief Justice Dipak Misra and Justice Sanjiv Khanna, the Ministry of Personnel justified its decision to keep various investigating and intelligence agencies out of the Right to Information Act purview, citing the need to strike a balance between “transparency and the security and well-being of the nation.”

“It is in the larger public interest and in the interest of the national security that CBI, NIA and NATGRID have been included in the second schedule to the act,” the Centre said in its affidavit submitted to the court in reply to the court notice over a public interest plea, challenging the exclusion of CBI etc from the RTI Act ambit.

“The right to information is not an absolute right.

There is a need to ensure the security of the nation, which should not be jeopardised due to disclosure of information under the transparency law,” said the Centre.

“It may be stated that the RTI Act requires a balance to be maintained between transparency and security and well- being of the nation. The three organisations have been included in the second schedule to the Act for maintaining such a balance,” it added.

The affidavit by the Ministry of Personnel said the government decided to keep CBI out of the transparency law ambit on a agency’s representation which was throughly examined by a committee of secretaries.

“This has been primarily done to ensure that the interests of the security of the state are not overlooked while protecting the rights of the citizens to seek information,” the affidavit said and sought the PIL to be dismissed with cost.

While refuting allegations that exemption had been granted to hide information and make CBI etc opaque organisations, the ministry said these organisations were not excluded from the RTI Act ambit to protect any guilty employee, officer, minister and other authorities.

CBI, meanwhile, in a separate affidavit to the court, pleaded disclosure of information had been hindering its functioning.

Citing a list of sensitive cases, including the assassination of former Prime Minister Rajiv Gandhi, Navy War Room leak case, IC 814 hijacking and Bombay blast, CBI said it has been handling several “sensitive cases pertaining to the national security and the disclosure of information about them would jeopardise the functioning of the agency.”

The Centre and CBI had filed their replies in response to the court notice to them on two separate PILs, filed last month by lawyers Sitab Ali Chaudhary and Ajay Aggarwal against the June 9 decision of the union cabinet exempting CBI, NIA and National Intelligence Grid (NATGRID) from the purview of the RTI Act.