CURATIVE PETITION

[Mr. M. GOVINDARAJAN]

The concept of Curative petition was evolved by the Supreme Court of India in the matter of ‘Rupa Ashok Hurra Vs. Ashok Hurra and another’ 2002 (4) TMI 889 - SUPREME COURT  where the question was whether an aggrieved person is entitled to any relief against the final judgment/order of the Supreme Court, after dismissal of a review petition. The Supreme Court in the said case held that in order to prevent abuse of its process and to cure gross miscarriage of justice, it may reconsider its judgments in exercise of its inherent powers. For this purpose the Court has devised what has been termed as a "curative" petition.

In regard to the entertainment of curative petition the Supreme Court held that the requirements to entertain such a curative petition under the inherent power of the Supreme Court is to be specified so that floodgates are not opened for filing a second review petition as a matter of course in the guise of a curative petition under inherent power.   It is common ground 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 a review petition. It is neither advisable nor possible to enumerate all the grounds on which such a petition may be entertained.

The Supreme Court was of the opinion that a petitioner is entitled to relief ex debito justitiae if he establishes-

• 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;
• Where in the proceedings a learned Judge failed to disclose his connection with the subject-matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner;

• In the Curative petition, the petitioner is required to aver specifically that the grounds mentioned therein had been taken in the review petition filed earlier and that it was dismissed by circulation. This has to be certified by a senior advocate.
• The Curative petition is then circulated to the three senior most judges and the judges who delivered the impugned judgment, if available. No time limit is given for filing Curative petition;

• It is only when a majority of the learned Judges on this Bench conclude that the matter needs hearing that it should be listed before the same Bench (as far as possible) which may pass appropriate orders;
• It shall be open to the Bench at any stage of consideration of the curative petition to ask a senior counsel to assist it as amicus curiae;
• In the event of the Bench holding at any stage that the petition is without any merit and vexatious, it may impose exemplary costs on the petitioner.

The Supreme Court further held that the curative petitions ought to be treated as a rarity rather than regular and the appreciation of the Court shall have to be upon proper circumspection having regard to the three basic features of our justice delivery system to wit, the order being in contravention of the doctrine of natural justice or without jurisdiction or in the event of there is even a likelihood of public confidence being shaken by reason of the association or closeness of a judge with the subject matter in dispute. In my view, it is now time that procedural justice system should give way to the conceptual justice system and efforts of the law Court ought to be so directed. Gone are the days where implementation of draconian system of law or interpretation thereof were insisted upon - Flexibility of the law Courts presently are its greatest virtue and as such justice oriented approach is the need of the day to strive and forge ahead in the 21st century.

In ‘S.P. Goyal V. Supreme Court of India’ (2013 (3) TMI 232 - CENTRAL INFORMATION COMMISSION) decided by Central Information Commission in Appeal No. CIC/WB/A/2010/000077/SG on 18.11.2011 the appellant sought for the following information in regard to ‘curative petition’:

1.Within how many months Curative petition is decided by Hon'ble Judges?

2. How many judges are appointed Curative petition?

3. Whether each Hon'ble judge gives his opinion separately or only collectively decided the Curative Petition?

4. Where appellant give specific evidence of error of law and facts the same would be made part of order by Hon'ble Court or not So that appellant may satisfy himself that he is getting true and correct justice against his curative petition? Curative petition is filed where there is 'cry strong force regarding errors in order duly certified by the senior advocate;

5. Whether the petitioner is heard prior to decide the Curative Petition or not?

6. The evidence obtained under RTI Act is 'considered by Hon'ble judge's particularly in curative petition. Which is documentary evident of error in order against which curative petition is filed.

7. Which is the final authority to decide the facts of the case i.e. Hon'ble High Court or Income Tax Appellate Tribunal?

8. The detail or specification of law point is pointed out while passing order in curative petition or only decision of Hon'ble Judges is convoyed to the petitioner of curative petition.

9. The decision curative petition 'is subject to hear the appellant is must to comply with the principal of natural justice or not.

The Public Information Officer replied that there is no provision of law provided in any statute as regards the procedure to be followed for filing and entertaining of the curative petition. Curative petition is an extraordinary remedy which has been evolved by the Supreme Court.   The one who seeks remedy has to satisfy the mandatory requirements. As to how the Curative Petition is entertained by the Hon'ble Judges on the judicial side is a matter connected with the exercise of the judicial powers by the Hon'ble judges.  The CIO held that PIO has given most of the information.   It is further informed by PIO that the curative petition is to be decided by a bench of five judges.   The Commissioner dismissed the appeal of the appellant on the ground that he did not seek information as under Section 2(f) of the RTI Act.

A bench of justices G S Singhvi and A K Ganguly on February 2, 2012, had cancelled the 122 2G licences holding as unconstitutional the policy of first-come-first-served on April 3, 2012. The apex court had dismissed the review petitions of Videocon Telecommunications Ltd, S Tel Ltd, SSTL, TTSL, Unitech Wireless (Tamil Nadu) Pvt Ltd, Etisalat DB Telecom Pvt Ltd and Idea Cellular Ltd.  The Supreme Court today dismissed curative petitions of several telecom firms for re-examination of its verdict canceling 122 2G spectrum licences allocated during tenure of former Telecom Minister A Raja. "We have gone through the curative petitions and the relevant documents. In our opinion, no case is made out within the parameters indicated in the decision of this Court in Rupa Ashok Hurra V. Ashok Hurra & Another (2002 (4) TMI 889 - SUPREME COURT).