TMI Blog2011 (9) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... re the third judge - 176 OF 2009 - - - Dated:- 23-9-2011 - ALTAMAS KABIR AND SURINDER SINGH NIJJAR, JJ. ORDER Altamas Kabir, J. Writ Petition (Civil) No.176 of 2009 was filed by Shri Ram Jethmalani and five others against the Union of India, the Reserve Bank of India, the Securities Exchange Board of India, the Director, Directorate of Enforcement and the Chairman, Central Board of Direct Taxes, Department of Revenue, Ministry of Finance, Government of India, against the purported inaction of the Government to arrange for recovery of large sums of money deposited by Indian citizens in foreign banks and, in particular, in Swiss Banks. In that context the Petitioners, inter alia, prayed for the following reliefs :- "(a) that this Hon'ble Court may be pleased to issue notice to all the Respondents calling upon them to disclose all the facts which have come to their knowledge so far pertaining to the aforementioned issues and the steps taken by them in this regard; (b) to make orders from time to time to ensure that the outcome of the investigations are not suppressed or even unduly delayed; (c) the suitable directions be issued to the Respondent No. 1 to ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Home Secretary, Foreign Secretary, Defence Secretary and the Secretary, Cabinet Secretariat. It was further recorded that the Union of India had claimed that such a multi-disciplinary group and committee would enable the conducting of an efficient and a systematic investigation into the matters concerning allegations against Hassan Ali Khan and the Tapurias and would also be able to take appropriate steps to bring back the monies deposited in foreign banks. In the light of such submission made on behalf of Union of India and citing the judgments of this Court in (1) Vineet Narain v. Union of India [(1996) 2 SCC 199], (2) NHRC v. State of Gujarat [(2004) 8 SCC 610], (3) Sanjiv Kumar v. State of Haryana [(2005) 5 SCC 517] and (4) Centre for PIL v. Union of India [(2011) 1 SCC 560], this Court completed the second part of the order by directing as follows :- 49. In light of the above we herewith order: (i) That the High Level Committee constituted by the Union of India, comprising of (i) Secretary, Department of Revenue; (ii) Deputy Governor, Reserve Bank of India; (iii) Director (IB); (iv) Director, Enforcement; (v) Director, CBI; (vi) Chairman, CBDT; (vii) DG, Narcotics Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so constituted report and be responsible to this Court, and that it shall be charged with the duty to keep this Court informed of all major developments by the filing of periodic status reports, and following of any special orders that this Court may issue from time to time; (vi) That all organs, agencies, departments and agents of the State, whether at the level of the Union of India, or the State Government, including but not limited to all statutorily formed individual bodies, and other constitutional bodies, extend all the cooperation necessary for the Special Investigation Team so constituted and functioning; (vii) That the Union of India, and where needed even the State Governments, are directed to facilitate the conduct of the investigations, in their fullest measure, by the Special Investigation Team so constituted and functioning, by extending all the necessary financial, material, legal, diplomatic and intelligence resources, whether such investigations or portions of such investigations occur inside the country or abroad. (viii)That the Special Investigation Team also be empowered to further investigate even where charge-sheets have been previously filed; and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of a Special Investigation Team composed of the very officers who had been appointed as members of the High Level Committee for the very same purpose, the Government is not justified in objecting to the investigation being monitored by such Committee headed by two retired Judges of the Supreme Court with impeccable credentials. Mr. Divan submitted that the contention of the Respondents in I.A. No.8 of 2011 was as if by appointing a Special Investigation Team, the Supreme Court had taken over the executive powers of the Union. It was submitted that although a case against the accused was pending since 2007, no attempt had been made to interrogate the accused in regard to the allegations made against them. 7. Mr. Divan submitted that possibly other fora were available to the Respondents, but the present I.A. would not provide any remedy to the Respondents. Mr. Divan urged that it was on account of the complete inertia of the investigating authority that in spite of huge sums of unaccounted money deposited in tax havens abroad, little or no action was taken to proceed with the investigation or even to interrogate the persons accused of having been involved in money laundering an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court to exercise it. 10. Mr. Naphade submitted that by virtue of this application, the Union of India was seeking to review a final order passed by this Court, treating the same to be an application for recalling the order. Mr. Naphade repeated and reiterated his submissions that the application filed on behalf of the Union of India and its authorities was not maintainable and could only be dismissed. 11. Replying to the submissions made by Mr. Divan and Mr. Naphade, the learned Attorney General submitted that in earlier cases also this question had been raised and considered by this Court. Referring to the decision of a Bench of Seven Judges in the case of A.R. Antulay v. R.S. Nayak Anr. [(1988) 2 SCC 602], the learned Attorney General submitted that by a majority judgment this Court held that directions, if given in violation of the principles of natural justice, if subsequently questioned in another appeal instead of by way of a Review Petition under Article 137, the same could be set aside by another Bench of the Court ex debito justitiae in exercise of its inherent powers. The majority amongst the Judges held that the want of jurisdiction could be addressed solely by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ian of the Constitution. 13. Reference was also made by the learned Attorney General to the decision of this Court in S. Nagaraj Ors. v. State of Karnataka Anr. [(1993) Supp. (4) SCC 595], which was heard along with several other cases by a Bench of three Judges. In the said cases an order had been passed on oral mentioning which ultimately resulted in several contempt petitions being filed. Two of the Hon'ble Judges, after considering the anomalous circumstances which had resulted from the passing of the order on oral mentioning, held that justice is a virtue which transcends all barriers and neither the rules of procedure nor technicalities of law can stand in its way. It was further observed that the order of the Court should not be prejudicial to anyone and if the Court found that the order was passed under a mistake and it would not have exercised the jurisdiction, but for the erroneous assumption which in fact did not exist, and its perpetration would result in miscarriage of justice, then it would not on any principle be precluded from rectifying the order. Mistake is accepted as a valid reason to recall an order. Their Lordships emphasized the fact that rectification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Article 145 of the Constitution. As has been held in A.R. Antulay's case (supra) and in S. Nagaraj's case (supra), such a power was not only inherent in the Supreme Court, but the Supreme Court was also entitled to and under an obligation to do justice to exercise such powers as the guardian of the Constitution. Justice transcends all barriers and neither rules of procedure nor technicalities can stand in its way, particularly if its implementation would result in injustice. In addition to the decision rendered by this Court in A.R. Antulay's case (supra) and in S. Nagaraj's case (supra), reference may also be made to another equally important pronouncement of this Court in Vineet Narain's case (supra), wherein the concept of continuing mandamus was introduced in order to maintain the credibility of the investigation being conducted. 16. Reference may also be made to the decision of this Court in Manganese Ore (India) Ltd. v. Chandi Lal Saha [(1991) Supp. 2 SCC 465], wherein this Court extended the benefit of its judgment to persons who were not even in appeal before it. 17. Even if the present application was to be dismissed as being not maintainable under Article 142 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng steps taken by it in his behalf. It further points out that it was on account of such an initiative, tax haven countries, including countries like Switzerland, made solemn attempts to enter into effective tax information exchange agreements with various countries. The application proceeds to delineate the steps taken and the strategy formulated to eradicate the menace of "Black Money". It states that the Government had joined the global crusade against Black Money. It had decided to create an appropriate legislative framework by incorporating various tax evasion measures in existing Acts. Thereafter, the application gives the details of the proposed new legislation for unearthing Black Money. After enumerating all the efforts made by the Government at national and international level, it is stated that above all the Government has constituted a Committee on 27th May, 2011 under the Chairman, C.B.D.T. to examine ways to strengthen laws to stop the generation of Black Money in the country, its legal transfer abroad and its recovery. The Committee also examined various other issues which are enumerated in the application. The application further proceeds to tabulate the efforts to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other purpose. It is further submitted that the judgment proceeds on admissions, concessions, submissions and acknowledgements attributed to the counsel appearing for the Union of India. It is pointed out that such concessions and admissions do not appear to have been made. On the basis of the facts pleaded, the prayer is made for modification of the order dated 4th July, 2011 and deletion of the directions relating to SIT in Paragraphs 49 and 50. Since the directions given in these paragraphs have been reproduced verbatim by His Lordship, Justice Kabir, the same are not necessary to be reproduced herein again. 6. The aforesaid facts have been stated merely to indicate that the application would not be maintainable, in its present form, as in substance, it is more in the nature of a Memorandum of Appeal. In my opinion, the application seeks to reopen the whole matter on merits which would not be permissible in an application for modification. Therefore, in my opinion, the application deserves to be dismissed at the threshold. 7. As the submissions made by the learned counsel for the parties have been succinctly noticed by my Learned Brother Altamas Kabir, J. in His Lordship's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abuse of the process of the Court as it seeks to camouflage an application for Review as an application for modification. In my opinion, such a course ought not to be encouraged. It would be relevant to notice the observations made by this Court in paragraph 16 of the judgment in the case of Delhi Administration v. Gurdip Singh Uban Ors. 2000 (7) SCC 296. "16. At the outset, we have to refer to the practice of filing review applications in large numbers in undeserving cases without properly examining whether the cases strictly come within the narrow confines of Rule XL of the Supreme Court Rules. In several cases, it has become almost everyday experience that review applications are filed mechanically as a matter of routine and the grounds for review are a mere reproduction of the grounds of special leave and there is no indication as to which ground strictly falls within the narrow limits of Rule XL of the Rules. We seriously deprecate this practice. If parties file review petitions indiscriminately, the time of the Court is unnecessarily wasted, even it be in chambers where the review petitions are listed. Greater care, seriousness and restraint is needed in filing review app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of review -- a party cannot be permitted to circumvent or bypass the circulation procedure and indirectly obtain a hearing in the open Court. What cannot be done directly cannot be permitted to be done indirectly. (See in this connection a detailed order of the then Registrar of this Court in Sone Lal v. State of U.P deprecating a similar practice.) 18. We, therefore, agree with the learned Solicitor General that the Court should not permit hearing of such an application for "clarification", "modification" or "recall" if the application is in substance one for review. In that event, the Court could either reject the application straight away with or without costs or permit withdrawal with leave to file a review application to be listed initially in chambers." 13. These observations leave no manner of doubt that the Court should not permit hearing of such an application for "clarification", "modification" or "recall" if the application is in substance one for review. It is clearly indicated that in those circumstances the Court could either reject the application straight away or permit withdrawal with leave to file a review application to be listed initially in chambers. 14. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndirectly. The Court should not permit hearing of such an application for "clarification", "modification" or "recall" if the application is in substance a clever move for review. 17. These observations were reiterated in the case of A.P. SRTC v. Abdul Kareem 2007 (2) SCC 466. This Court observed that the petition was in essence and substance seeking for a review under the guise of making an application for direction and modification apparently being fully aware of the normal procedure that such applications for review are not, unless the Court directs, listed for open hearing in Court, at the initial stage at least, before ordering notice to the other side and could be summarily rejected, if found to be of no prima facie merit. The Court further observed that such a move ought not to be countenanced. The move was clearly misconceived and nothing but sheer abuse of process, which of late is found to be on the increase, more for selfish reasons than to further or strengthen the cause of justice. 18. To be fair, it must be noticed that the learned Attorney General appearing for the Union of India had relied on a number of judgments in support of his submissions that the Court woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the Court. In Administrative Law the scope is still wider. Technicalities apart if the Court is satisfied of the injustice then it is its constitutional and legal obligation to set it right by recalling its order. Here as explained, the Bench of which one of us (Sahai, J.) was a member did commit an error in placing all the stipendiary graduates in the scale of First Division Assistants due to State's failure to bring correct facts on record. But that obviously cannot stand in the way of the Court correcting its mistake. Such inequitable consequences as have surfaced now due to vague affidavit filed by the State cannot be permitted to continue. 19. Review literally and even judicially means re-examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order XLVII Rule 1 of the Civil Procedure Code. The expression, 'for any other sufficient reason' in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of Court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice. 36. There is yet another circumstance. The question is, whether this Court should enforce the 1982 Rules as amended in 1987. The 1987 amendments have the effect of smuggling in thousands of persons into Government service by a back-door -- without complying with the requirements of Articles 14 and 16. One c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts inherent jurisdiction in the S. Nagaraj's case (supra). A perusal of the judgment would clearly show that the Court was anxious to "even the balance". On the one side, there were orders of the Court passed on vague and incomplete affidavit, creating rights and hopes in favour of five thousand stipendiary graduates to be absorbed as First Division Assistant, and on the other hand, there were others, the likely injustice to whom had been highlighted in the affidavit filed by the Government and in the writ petition filed by different sections of the employees. The Court in fact emphasised the principle of finality of orders and binding nature of directions issued by the Court which could only be overridden, if there is injustice inherent in the situation (see Page 615, Para 14 e f). A little later in the judgment, in Paragraph 16, the Court observed as follows:- 16. "Mere eligibility was not sufficient unless availability of posts was also established. In absence of posts and due to equitable considerations arising in favour of other employees the practical difficulty in appointing all the five thousand stipendiary graduates as First Division Assistants appears to be insurmount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y technical rules. The observations made in paragraph 48, which are of relevance, are as under : "48. According to Shri Jethmalani, the doctrine of per incuriam has no application in the same proceedings. We are unable to accept this contention. We are of the opinion that this Court is not powerless to correct its error which has the effect of depriving a citizen of his fundamental rights and more so, the right to life and liberty. It can do so in exercise of its inherent jurisdiction in any proceeding pending before it without insisting on the formalities of a review application. Powers of review can be exercised in a petition filed under Article 136 or Article 32 or under any other provision of the Constitution if the court is satisfied that its directions have resulted in the deprivation of the fundamental rights of a citizen or any legal right of the petitioner. See the observations in Prem Chand Garg v. Excise Commissioner." 24. In my opinion, the aforesaid observations would not be applicable in the facts and circumstances of the present case. The application herein is not moved by an individual, who had been deprived of his fundamental rights by an order dated 4th July, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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