TMI Blog2004 (4) TMI 578X X X X Extracts X X X X X X X X Extracts X X X X ..... matters but only is concerned with certain observations made therein as also imposition of a sum of ₹ 20,000/- by way of costs. These two public interest litigations were filed successively by one B. Kistaiah, said to be a former Member of Legislative Assembly and the Writ Petition No. 6240 of 1997 by Digumarthi Premchand, said to be a journalist. In the said purported public interest litigations alleged malfunctioning of the Commissioner of Central Excise resulting in loss of several crores of rupees as also purported dismantling of the Special Investigating Team headed by the appellant herein were in question. The writ petitioners contended that the said Special Investigation Team was dismantled by the Commissioner-I Central Excise Customs, Hyderabad Commissionerate only with a view to help the dishonest traders and to prevent the cases relating to evasion of excise duty. The appellant was not initially a party therein but despite the same an order of transfer passed against him and others dated 10.3.1997 bearing Establishment Order (G.O.) No. 43/97 was questioned in the said writ petition. The cause of action for filing writ petition No. 5717 of 1997 was also said to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espite the fact that the Registry of the High Court was not supposed to receive the said applications without the order of the Hon'ble Chief Justice, the same was done on a wrong premise that a direction in that behalf had been issued by the Chief Justice. Interestingly, the writ petitioner informed the Registrar (Judicial) that he would not be insisting for House Motion as his advocate would not be available but keeping in view the purported order passed by the Chief Justice, a Bench was constituted in relation whereto admittedly no direction had been issued by the Chief Justice. It also stands admitted that even no direction had been issued to number the said applications, whence the application filed by the appellants were placed before the Bench. The Registry submitted several reports before the Court, on having been asked to do so, which reveal as to how a fraud was practised upon the court presumably in collusion with some officers of the Registry. A contempt proceeding was initiated against Digumarthi Premchand relying or on the basis of the said reports but as the writ petitioner had been evading service of notice, not only non-bailable warrant was issued in absence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btained this writ petition back from the Registrar of the High Court since some objections were raised by the Registrar and Sri N.K. Prasada also signed in return register maintained by the Registrar office in token of receipt of the petition back. The register as well as specimen signatures of Sri N.K. Prasada have been referred to GEQD who opined that the signatures on the register pertains to Sri N.K. Prasada. The investigation disclosed that the origin of all Phonogram was from public telephone booth bearing No. 243 980, located at Basheerbagh and other PCO telephone No.332917 located at Erramanzil Colony. Investigpation disclosed that on the day of filing of WP No.6240 of 1997 i.e., 26-3-1997 Sri Kali Prasada was taken to the office of Sri S. Ramachander Rao by Sri N.K. Pramda and Sri B.P. Agarwal. Investigation also disclosed that on 26- 3-1997, Sri D. Premchand was present at Srikakulam and he has not come to Hyderabad nor he signed the affidavit enclose with the WP No.6240 of 1997. The GEQD has opined that the signature on WP No.6240 of 1997 was not that of Sri D. Premchand. But Sri D. Premchand with a fraudulent and dishonest intention filed an affidavit before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t petitioner. The CBI in its report inter alia opined that the appellant herein was the person working behind the scene. Interestingly, during the said investigation the appellant could not be traced out. The aforementioned B. Kistaiah (writ petitioner in W.P. No.6240 of 1997) made a solemn statement before the High Court wherein also he named the appellant herein as a person who was responsible for getting the writ petition filed through the advocate although he did not know him personally. He further alleged that the requisite documents for filing the writ petition have been handed over to the learned Advocate by the appellant. The High Court upon analysis of the pleadings and other materials placed before it noticed: On analysis of the pleadings before us and various reports filed by the CBI and the sworn statement of the petitioner in WP No.5717 of 1997 would lead to an irresistable conclusion that both these writ petitions are engineered and brought into existence by the 8th respondent herein with an oblique motive of avoiding an order of simple transfer dated 8-5-1997. It is the 8th respondent who has acted from behind the scene and had set up the petitioner to file th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest litigations. The High Court also went into the merit of the matter and arrived at a finding that the writ petitions were filed at the instance of the appellant herein. The High Court while finding the said writ petitions to be without any merit opined that no relief can be granted to the writ petitioner. The High Court also expressed its unhappiness over the role of the lawyers. The High Court although noticed that the writ petitioner in writ petition No. 5717 of 1997 appeared in person and wanted to withdraw the writ petition but did not absolve him of his responsibility in the matter in filing the writ petition at the instance of the appellant herein. However, it took a lenient view and dismissed the writ petition without awarding any cost against him. The High Court, however, administered severe warning to him to be careful in future and not to play any game with judicial process. So far as writ petition No. 6240 of 1997 is concerned, the High Court held: So far as WP No.6240 of 1997 is concerned, we have already observed that the petitioner, as well as the 8th respondent are guilty of abuse of the judicial process in the name of public interest litigation. They h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a party, no opportunity of hearing having been granted to him the impugned judgment cannot be sustained. Mr. Anoop G. Choudhary, learned senior counsel appearing on behalf of the respondents, on the other hand, would submit that the High Court itself could have been moved for expunction of the remarks by the appellant herein. It was pointed out that the appellant took part in the CBI enquiry, filed an application for reqularisation of leave and keeping in view the report submitted by the Central Bureau of Investigation, his involvement in getting the writ petition filed is apparent on the face of the record. The writ petitioner who had been arrayed as respondent No. 8 in the Special Leave application has filed an affidavit. He in his affidavit does not deny or dispute the findings of the High Court. He does not say that the writ petition was not filed at the instance of the appellant herein. It is not in dispute that although the appellant was not a party in the writ petition the order of transfer passed against him dated 10.3.1997 was the subject matter thereof and an interim order had been passed by the Division Bench of the High Court. The fact that he derived benefit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same), and thus a presumption can be drawn to the effect that he/ his advocate had been keeping a watch over the entire proceeding. Despite the same at no point of time the appellant wanted to cross-examine any witness. He never brought the fact to the notice of the court that a criminal case had also been filed against the Dy. S.P. of the C.B.I. allegedly for taking bribe. He allowed the proceedings before the High Court to go on. He sat on the fence. He, as has been noticed by the High Court, even could not be traced out for some time. Furthermore, he appeared to be on leave during the following period: 1. 83 days EL from 3-4-1997 to 24-6-1997. 2. 138 days EL from 26-6-1997 to 10-11-1997. 3. 15 days EL from 11-11-1997 to 25-11-1997. 4. 115 days Half-pay leave from 26-11-1997 to 29- 4-1998. 5. 32 days extraordinary leave from 30-4-1998 to 31-5-1998. He, as noticed hereinbefore, filed application for regularisation of the said period of leave pursuant to or in furtherance of the observations made by the Chief Commissioner, Hyderabad in his order dated 08.05.1997. The principles of natural justice, it is well-settled, cannot be put into a strait-jacket for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tence of alternative remedy albeit is no bar to exercise jurisdiction under Article 226 of the Constitution of India but ordinarily it will not do so unless it is found that an order has been passed wholly without jurisdiction or contradictory to the constitutional or statutory provisions or where an order has been passed without complying with the principles of natural justice. (See Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Others (1998) 8 SCC 1). It is trite that only because floodgates of cases will be opened, by itself may not be no ground to close the doors of courts of justice. The doors of the courts must be kept open but the Court cannot shut its eyes to the ground realities while entertaining a public interest litigation. Exercise of self-restraint, thus, should be adhered to, subject of course to, just exceptions. (See also Maharashtra State Board of Secondary Education Vs. Paritosh Bhupesh Kumarsheth etc., AIR 1984 SC 1543.) The said decision has been followed in Chairman MD, BPL Ltd. vs. S.P. Gururaja and Others [(2003) 8 SCC 567], wherein it was noticed : Dawn Oliver in Constitutional Reform in the UK under the heading 'The Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law not only has to base on transparency but must create an impression that the decision-making was motivated on the consideration of probity. The Government has to rise above the nexus of vested interests and nepotism and eschew window dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions. Therefore, the principle of governance has to be tested on the touchstone of justice, equity and fair play and if the decision is not based on justice, equity and fair play and has taken into consideration other matters, though on the face of it, the decision may look legitimate but as a matter of fact, the reasons are not based on values but to achieve popular accolade, that decision cannot be allowed to operate. We are pained to see how the forum of public interest litigation is being abused. This Court recently had also the occasion to notice the same. (See Ashok Kumar Pandey Vs. State of West Bengal, 2003 AIR SCW 6105 and Dr. B. Singh Vs. Union of India and Others, 2004 AIR SCW 1494). For the rea ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
