TMI Blog2003 (7) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... on of an order passed by any court of law which is not binding on him. The very basis upon which a judicial process can be resorted to is reasonableness and fairness in a trial. Appeal allowed. - Appeal (civil) 4782 of 1996 with C.A. No. 4783 of 1996 and W.P. (C) No. 527 of 1993 - - - Dated:- 7-7-2003 - CJI., S.B. Sinha AR. Lakshmanan, JJ. JUDGMENT Whether settlement of a private dispute between the parties to a writ proceeding is permissible in law, is the prime question involved in these batch of appeals which arise out of judgments and orders passed by Madhya Pradesh High Court in M.P. No. 802 of 1992 and M.C.C. No. 477 of 1992 and the connected writ petition. The factual matrix involved in these matters may be noticed in brief. A partnership firm known as M/s. Dwarka Prasad Agarwal Brothers (The firm) was constituted with Dwarka Prasad Agarwal (since deceased), Bishambhar Dayal Agarwal (since deceased), Mahesh Prasad Aggarwal - all sons of Keshav Dev Agarwal and Ramesh Chandra Agarwal, son of Dwarka Prasad Agarwal in the year 1972 as partners thereof. Each partner contributed towards the capital of the Firm in shares to the extent of 25%, 30%, 30% and 15% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r was it acted upon and in fact was questioned as forged and non-existent by Bishambhar Dayal Agarwal in a proceeding before District Magistrate, Jabalpur and the same was also the subject matter of suit No. 57A of 1988 pending in the court of District Judge, Bhopal. Several other suits were filed by the parties at several places viz. Jabalpur, Bhopal, Raipur, Gwalior, etc. Several proceedings were also initiated before different forums with regard to publication of the said newspapers at different places. Some writ petitions were also filed by the parties before the High Court. Some proceedings by way of Special Leave Application were also filed before this Court. It may not be necessary to delve deep into the effect and purport of the said disputes for answering the issue involved in these matters, except a few. It may, however, be noticed that Bishambhar Dayal Agarwal, questioning the authentication made by the Additional District Magistrate, Jabalpur of the Declaration filed by Sudhir Agarwal, son of Ramesh Chandra Agarwal for newspaper Nav Bhaskar as regard its publication from Jabalpur as also a purported order passed thereupon by the said authority on 3.12.91 filed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om granting any such or similar title to Shri Sudhir Agarwal or Shri Ramesh Chandra Agarwal. (vi) Any other appropriate writ, order or direction which the Hon ble Court deems just and proper may also be passed in the facts and circumstances of the case as also in the interest of justice. (vii) Cost of proceedings of this petition may also be awarded in favour of the petitioner. During pendency of the said writ proceedings, on 29.6.92 the petitioner therein, Ramesh Chandra Agarwal son of Dwarka Prasad Agarwal and Mahesh Prasad Agarwal along with their sons Kailash, Sudhir and Sanjay purported to have entered into a deed of settlement. Dwarka Prasad Agarwal admittedly was a proforma respondent therein and although his rights as partner were directly affected thereby he was neither a party to the said settlement nor a signatory to the said deed. The said purported agreement was filed on the same day before the Madhya Pradesh High Court by the petitioner therein alleging that he and the contesting respondents had reached a full and final settlement of the disputes raised in the petition and other connected matters pending before various courts and bodies and the writ petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1993 in this Court questioning the aforementioned order dated 3.9.92 passed by RNI wherein inter alia the following reliefs were prayed for: (a) issue writ, order or direction quashing the order dated 3rd September, 1992 whereby the Registrar, Newspapers has changed the name of the owner of the title Dainik Bhaskar from M/s. D.P. Agarwal and Brothers to M/s. Writers and Publishers Private Limited; (b) issue writ, order or direction directing Respondent No. 1 and 2 not to allow Respondent No. 7 to use the title Dainik Bhaskar for its publication; (c) issue writ, order or direction directing the Respondents not to publish newspaper Dainik Bhaskar under the alleged title of Respondent No. 7; (d) issue writ, order or direction directing the Respondent No. 2 to exercise its authority not to allow Respondents No. 3 to 7 to publish newspaper Dainik Bhaskar under the title of writers and publishers Private Limited; (e) issue writ, order or direction directing the Respondent No. 8 not to allow the Respondents No. 3 to 7 to publish newspaper Dainik Bhaskar in contravention of the provisions of the Press and Registration of Books Act, 1867; and (f) pass such other and fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esh Chandra Agarwal amongst the three other partners, namely, Ramesh Chandra Agarwal, Bishambhar Dayal Agarwal and Mahesh Chand Agarwal to the exclusion of Dwarka Prasad Agarwal, the 4th and the remaining partner. (iv) Although several suits, namely Suit No. 74A of 1987, 75A of 1987, 57A of 1988, 22A of 1988, 99A of 1991 and Writ Petition, MP No. 802 of 1992 were filed by the parties, the disputes involved therein were sought to be resolved thereby which was impermissible in law. The learned counsel would contend that the High Court committed a serious error insofar as it failed to notice that Dwarka Prasad Agarwal could not have any knowledge of the said unjust agreement, whence the same was accepted. Although he had not instructed any lawyer to appear on his behalf and merely one blank Vakalatnama executed by him bona fide was used therefor and, thus, there was no question of his taking part in the proceeding for acceptance of the purported settlement. In any event as his lawyer admittedly recorded merely no instructions in the said proceeding, the same could not have been treated as a consent/ no objection to the recording of the compromise on his behalf and in that view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a writ petition could not have been taken recourse to for resolution of a private dispute. It was submitted that in that view of the matter, the observations of the High Court that its order did not amount to issuance of a writ by the Court against any of the parties must be held to be illegal and without jurisdiction. Drawing our attention to the applications for withdrawal of the suits in terms of the said compromise petition, the learned counsel would submit that the order accepting the compromise was misused inasmuch as the said suits were purported to have been withdrawn on the ground that the same was a necessary fallout of the judgment of the High Court, which in effect and substance, it was not. On the writ petition filed by Late Dwarka Prasad Agarwal under Article 32 of the Constitution of India in this Court, the learned counsel would submit that having regard to the fact that the official respondents had changed the entries in the register maintained under the Act is a clear pointer to show as to how the order of the High Court was misunderstood by the statutory authorities. It was submitted that in terms of the provisions of the Press and Registration of Books ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he fact that the parties had buried their private disputes, at least prayers (3) and (4) could be granted by the High Court, more so when prayers (1) and (2) thereof had not been pressed. Dr. Singhvi would urge that having regard to the provisions contained in Section 5(5) of the said Act, the writ petition also became infructuous and, thus, there was no occasion for the High Court to issue any writ. Referring to certain documents, the learned counsel would argue that as prior to the filing of the writ petition, Dwarka Prasad Agarwal had given up his own right in the newspaper and acknowledged the right of his respondents and the company; he had no locus standi to prefer appeals against the impugned orders of High Court or file the writ petition. As regard the effect of the consent order the learned counsel relied upon the decision of this Court in Salkia Businessmen s Association and Others Vs. Howrah Municipal Corporation and Others [(2001) 6 SCC 688]. Mr. P.P. Rao, the learned senior counsel appearing on behalf of Smt. Kasturi Devi, inter alia, would submit that the writ petition filed before this Court by Dwarka Prasad Agarwal (since deceased) was not maintainable. Mr. Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r disposal of the writ petition in terms of the said agreement as also the order of the High Court in M.P. No.802 of 1992 was passed on the same day. The writ petition was not ready for hearing on the said date. Admittedly, Dwarka Prasad Agarwal was not a signatory to the said agreement. He was also not put on notice there-about. Assuming that he had engaged an Advocate, keeping in view the fact that he was a proforma respondent therein, the said learned Advocate was merely required to watch the proceedings as no relief had been claimed against him. The question of the learned advocate of Dwarka Prasad Agarwal not raising any objection as regard legality or otherwise of the said agreement dated 29.6.1992 neither directly nor indirectly arose for consideration before the High Court. He also did not make any submission as regard the lawfulness or otherwise of the said compromise. He merely stated that he had no instruction in the matter. In that view of the matter, it was obligatory on the part of the High Court to issue notice to Late Dwarka Prasad Agarwal in respect thereof or to allow sufficient time to the learned Advocate to obtain proper and adequate instructions. In the afo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to the notice of the High Court, still it failed to rectify the mistake committed by it. The effect of the said order was grave. It was found to be enforceable. It was construed to be an order of the High Court, required to be the implemented by the Courts and the statutory authorities. In Salkia Businessman s Association (supra), this Court observed: 8. We have carefully considered the submissions of the learned Senior Counsel on either side. The learned Single Judge as well as the Division Bench of the High Court have not only oversimplified the matter but seem to have gone on an errand, carried away by some need to balance hypothetical public interest, when the real and only question to be considered was as to whether the respondent Authorities are bound by the orders passed by the Court on the basis of the compromise memorandum and whether the proposed move on their part did not constitute flagrant violation of the orders of the Court - very much binding on both the parties. The High Court failed to do justice to its own orders. If courts are not to honour and implement their own orders, and encourage party litigants - be they public authorities, to invent methods of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purported compromise in a casual manner. It was suo motu required to address itself to the issue as to whether the compromise was a lawful one and, thus, had any jurisdiction to entertain the same. It may be true, as has been contended by Mr. Rao, that the writ petition was maintainable at the threshold. But once it is held that by reason of the purported settlement between the private parties, the High Court was not required to issue any writ, it could only either permit the petitioner to withdraw the writ petition and dismiss the same as having become infructuous. The High Court derives its jurisdiction in terms of Article 226 of the Constitution of India, if an occasion arises therefor, to make judicial review of the order passed by a statutory authority. It is beyond any cavil that no writ can be issued if the disputes involve private law character. The writ court has also no jurisdiction to determine an issue on private dispute over a property or right under a partnership. While purporting to record a compromise, the writ court cannot enlarge its jurisdiction by directing that the suits pending in different courts filed or different causes of action would also stand compromise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by reason of an order passed by any court of law which is not binding on him. The very basis upon which a judicial process can be resorted to is reasonableness and fairness in a trial. Under our Constitution as also the International Treaties and Conventions, the right to get a fair trial is a basic fundamental /human right. Any procedure which comes in the way of a party in getting a fair trial would be violative of Article 14 of the Constitution of India. Right to a fair trial by an independent and impartial Tribunal is part of Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (See Clark (Procurator Fiscal, Kirkcaldy) v Kelly [2003] 1 All ER 1106). Furthermore, even if the Petitioner herein had filed a writ petition before the High Court in terms of Article 226 of the Constitution of India, the same would not have been entertained as the impugned order had been passed consequent to and in furtherance of the purported consent order passed by the High Court. Ordinarily, the High Court would not have issued a writ of certiorari for quashing its own order. Even in that view of the matter too, it is apposite that this petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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