TaxTMI 
TaxTMI 
2017 (11) TMI 2067
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....Adv., JUDGMENT 1. The facts are disturbing in the instant case. By moving two successive petitions, one on Wednesday (8.11.2017) and the other on Thursday (9.11.2017), identically worded similar petitions, one by the Commission for Judicial Accountability and Reforms (CJAR) and the other by Ms. Kamini Jaiswal, Advocate of this Court, who is a member of CJAR. Both the petitions are identically worded. The petition filed on Wednesday was to be listed on Friday (10.11.2017) before a Bench presided by Hon'ble A.K. Sikri and Ashok Bhushan, JJ. As stated by Shri Prashant Bhushan, one of the counsel representing the petitioner, the said fact was informed to him by the Registry of the Court on 8.11.2017. Learned counsel further states that as the petition had not been listed before same Bench which ordered its listing for Friday, i.e. Court No.2, it became necessary to file the present second petition i.e. W.P. (Crl.) No.176/2017 by Ms. Kamini Jaiswal, Advocate of this Court. 2. A prayer was made to Court No.2 to hear the matter on the same day; urgency in the matter had been urged by Shri Dushyant Dave, learned senior counsel, who mentioned the matter. Order dated 9.11.2017 passed by ....
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....er, i.e. W.P. (Crl.) No.169/2017, filed by CJAR, which was listed before a Bench presided by Hon'ble A.K. Sikri, J., following order was passed by the Bench on Friday, the 10th November, 2017 : "Mr. Prashant Bhushan, learned counsel has brought to our notice order dated 09.11.2017 passed in W.P.(Crl.) No.176/2017 referring the matter to the Constitution Bench. Let the matter be placed before Hon'ble the Chief Justice for passing appropriate orders for listing this matter. Mr. R.S. Suri, senior advocate/President, Supreme Court Bar Association (SCBA) submits that SCBA also wants to get itself impleaded as a party respondent and render assistance. On an oral request of Mr. Suri, the prayer is allowed and the SCBA is impleaded as a party respondent." 4. In the writ petitions, a prayer has been made to constitute a Special Investigation Team (SIT), headed by retired Chief Justice of India, to investigate the offences arising out of FIR being RC.10(A)/2017-AC. III dated 19.9.2017 recorded at New Delhi by the CBI and those connected therewith and take consequential action thereafter in accordance with law. A prayer was also made to direct the CBI, to produce before this Court for ....
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....d been granted permission on 20.8.2016 by the Oversight Committee of the Medical Council of India; on failure to fulfill certain conditions, it got debarred from admitting the students for two academic sessions i.e. 2017-18 and 2018-19 as infrastructure and other facilities were found to be deficient. W.P. (C) No.442/2017 was filed in this Court, which was connected with WP (C) No.411/2017 in which an order was passed on 1.8.2018, to provide an opportunity of hearing to the petitioner(s) in that case and thereafter to pass a reasoned decision de novo. Hearing was granted, and the Hearing Committee of the Government agreed with the aforesaid decision of the Ministry, not to permit the college for two years. Another writ petition was thereafter, filed in this Court by the said Prasad Education Trust; it was withdrawn on 24.8.2017, with liberty to move the Allahabad High Court. Thereafter, a writ petition was filed on 25.8.2017 in the High Court at Allahabad; an order was passed on 25.8.2017 itself that the College shall not be delisted from the list of colleges notified for counseling till the next date of listing i.e. 31.8.2017. The Medical Council of India (MCI) filed an SLP agains....
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....r including justice delivery system and in subsequent raids made by the CBI it has recovered close to Rs.2 crores in cash, the agency has seized Rs.1 crore which the Hawala operator had handed over to an aide of the retired Judge I.M. Quddusi. 9. There was an order passed by a Bench consisting of Hon'ble A.K. Sikri, J. on 10.11.2017 that the matter be placed before Hon'ble Chief Justice of India for listing the matter. The matter was considered on administrative side by the Hon'ble Chief Justice of India and he constituted a 5-Judge Constitution Bench which consisted of and presided over by Hon'ble Chief Justice of India. The Constitution Bench answered the question as a piquant situation had arisen for listing the case by judicial order before senior-most 5 Judges in order of seniority passed in the present petition and the aforesaid order dated 10.11.2017 passed in the case of CJAR in WP (Crl.) No.169/2017 by Hon'ble A.K. Sikri, J. There was variance between the orders passed by the two Benches; one by Court No.2 and the other presided over by Hon'ble A.K. Sikri, J. The order in this case was passed on 9.11.2017 for listing the matter before 5 Hon'ble Judges on Monday i.e. 13.1....
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....t the said principle is applicable to the Supreme Court. We are disposed to think so. Unless such a position is clearly stated, there will be utter confusion. Be it noted, this has been also the convention of this Court, and the convention has been so because of the law. We have to make it clear without any kind of hesitation that the convention is followed because of the principles of law and because of judicial discipline and decorum. Once the Chief Justice is stated to be the master of the roster, he alone has the prerogative to constitute Benches. Needless to say, neither a two-Judge Bench nor a three-Judge Bench can allocate the matter to themselves or direct the composition for constitution of a Bench. To elaborate, there cannot be any direction to the Chief justice of india as to who shall be sitting on the Bench or who shall take up the matter as that touches the composition of the Bench. We reiterate such an order cannot be passed. It is not countenanced in law and not permissible. An institution has to function within certain parameters and that is why there are precedents, rules and conventions. As far as the composition of Benches is concerned, we accept the principl....
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.... a similar petition before; submitting that a member of the organization is entitled to exercise right separately in her own right to file a petition separate from the organization. Further, that Article 144 of the Constitution renders it impermissible for a different Bench of the Supreme Court, even if it is a Bench of the Hon'ble Chief Justice of India, to overrule an order passed by another Bench of the Supreme Court, as orders passed by the Supreme Court are binding, under Article 144 of the Constitution, even upon the Hon'ble Chief Justice of India and other Benches of the Supreme Court as held in Rupa Ashok Hurra v. Ashok Hurra & Anr. (2002) 4 SCC 388. She has reiterated that Hon'ble Khanwilkar, J. ought to have recused himself from hearing this case as he was one of the Judges hearing the matter relating to medical bribery scam alleged in the FIR registered by the CBI. 13. It was submitted by Shri K.K. Venugopal, learned Attorney General for India, appearing in his official capacity, that such a petition as the present one cannot be entertained. The petitioner has unnecessarily cast doubt on the entire system. If an unscrupulous person does or says anything irresponsible an....
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.... opinion,' said the Chief Baron, 'that our judgment must be for the defendant.The question raised upon this record is whether an action is maintainable against the judge of a county court, which is a court of record, for words spoken by him in his judicial character, and in the exercise of his functions as judge in the court over which he presides, where such words would as against an ordinary individual constitute a cause of action, and where they are alleged to have been spoken maliciously and without probable cause, and to have been irrelevant to the matter before him. The question arises, perhaps, for the first time, with reference to a county court judge, but a series of decisions uniformly to the same effect, extending from the time of Lord Coke to the present time, establish the general proposition that no action will lie against a judge for any acts done or words spoken in his judicial capacity in a court of justice. This doctrine has been applied not only to the superior courts, but to the court of a coroner, and to a court martial, which is not a court of record. It is essential in all courts that the judges who are appointed to administer the law should be permit....
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....een passed contrary to the order of the Constitution Bench, was held to be ineffective in law, not binding on the Hon'ble Chief Justice of India. The Hon'ble Chief Justice of India has constituted a Bench on administrative side after the aforesaid decision of this Court in which, this precise question, as to the competence of the Chief Justice to constitute a Bench, has been decided; as such, the submission made by Shri Shanti Bhushan, learned senior counsel, is hereby rejected. We cannot reopen this issue. The decision is binding. 16. It was submitted, that Article 144 of the Constitution of India binds this Court and, renders it impermissible, for any other Bench of the Supreme Court, even if it is a Bench presided by Hon'ble Chief Justice of India to overrule an order passed by another Bench of the Supreme Court. All orders passed by the Supreme Court are binding under Article 142 of the Constitution of India, even upon the Chief Justice of India and other Benches of the Supreme Court, as held in Rupa Ashok Hurra (supra). The submission so raised is totally devoid of substance, as a Constitution Bench of this Court has decided the question that no such order, constituting a par....
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....etition identically worded as suggested by Shri Prashant Bhushan, learned counsel appearing on behalf of the petitioner though Ms. Kamini Jaiswal, learned counsel, in the written note, which she has submitted after hearing was over, has tried to explain that a member of an organization is entitled to exercise her right to file a petition separately from the organisation. Be that as it may. Even if petition could have been filed, being, arguendo, within the right of a member of an organisation to file such separate petition, but, there could still not have been any forum hunting in the method and manner it has been done to create ripples in this Court, by indulging in this exercise of filing the second petition on the very next day, thereafter, mentioning it on the same day, for the member to exercise her right. Even the petitioner is member of organization CJAR is not relevant or material but the fact remains that similar identically worded petition has been filed by petitioner. It was not proper to request Court No.2 to take up the matter when the other matter filed by CJAR was coming up on Friday before another Bench. At the most the prayer could have been to list the said petiti....
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....ubtedly seem to have been done, and that nothing is to be done which creates a suspicion that there has been improper interference in the course of justice, had been raised by the petitioner in an unsuccessful attempt to take refuge under these propositions for his conduct. In spite of the objection Hon'ble Chief Justice of India not to constitute a Bench, the Chief Justice of India chose to constitute a Bench, with the Hon'ble Chief Justice himself as the presiding Judge. According to the petitioner the order passed by the Bench of Hon'ble Chief Justice of India was required to be ignored. This Court has laid down that the assertion that the first writ petition was not dismissed in the eye of law, tends to question the authority of the court. This Court has observed thus : "51. It would, thus, be seen that when the first writ petition was dismissed by this Court, as a responsible citizen, the petitioner should have kept quiet. When the result animated by the petitioner was not achieved, he embittered to foul at the process of this Court and emboldened to file the second writ petition with imputation made against this Court, in particular targeting the Chief justice of india, Jus....
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....edge in law mixed up the language as "improper for Chief justice of india to hear it", "Dismissal of the 'grouse' of the petitioner was totally unjust, unfair, arbitrary and unlawful, flagrant violation of mandate of Article 14", "Violation of the sacred oath of office" and to "declare Justice A.M. Ahmadi unfit to hold the office as Chief justice of india". When these imputations were pointed out to the petitioner by a three-Judge Bench presided over by brother Verma, J. while dismissing the second writ petition, to be scandalous and reckless, he had stated that he "stood by" those allegations. He reiterated the same with justification in his preliminary submissions. He has stated that the accusations made were truthful and 'carefully' worded. In this backdrop scenario, the effect of these imputations is obviously reckless apart from scandalising this Court, in particular the Chief justice of india and was intended to foul the process of the Court or lower or at any rate tends to lower the authority of the Court in the estimate of the public and tends to undermine the efficacy of the judicial process. It would, therefore, be clear that the accusations are gross contempt. At the hei....
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....under Article 145(5) of the Constitution. Their opinion or order thus is the opinion or order of the Court. The minority opinion also would form part of the judgment or order but remains the minority view. The Chief Justice is first among the colleagues." "52. Omission to record reasons, according to the petitioner, is violative of the principles of natural justice. The Chief justice of india has committed impropriety in deciding the matter. As stated earlier, the decision is that of the Bench on behalf of the Court and the Chief Justice, being the seniormost among the members constituting the Bench, had spoken on behalf of the Bench. Therefore, the attribution of improper motives scandalises the efficacy of judicial adjudication and per se contumaciously lowers or at any rate tends to lower the dignity or authority of the Court. The prayer for prosecution of the Chief Justice, though sought in Item 14(a) and (d) to be withdrawn, which would be of no consequence, is, therefore, unbelievably outrageous contempt. 61. Item 13 relates to the interference with the judicial management of the Court and the duty of a Judge. When an accusation is made against the presiding Judge, by i....
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....ass an order adverse to him. It is also contempt to imply that the Judges would be so amenable to comply that the Bench which heard the second writ petition could not have heard it. This Court has laid down these allegations aimed at bringing the administration of justice in disrepute. This Court has observed : "81. It is the duty of the Chief Justice of a court to assign judicial work to his brother Judges. It was, therefore, the duty of the respondent to assign the second writ petition to a Bench to hear it. By doing so he did not, as is alleged, become a Judge in his own cause. It is contempt to imply, as the alleged contemnor does, that the respondent would assign it to a Bench which would not pass an order adverse to him. It is also contempt to imply that Judges would be so amenable. To plead that the Bench that heard the second writ petition could not have heard it and, therefore, could not have dismissed it and that it is deemed to be still pending is to add to the contempt. These allegations are also aimed at bringing the administration of justice into disrepute." 22. The submissions so raised, and averments so made, in this petition, and the entire scenario created by ....
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....ge of a High Court, allegedly assuring and promising, a 'favourable' decision in the aforesaid circumstances of the case which was then pending before this Court, in the aforesaid circumstances and has assured favourable orders, begs the question, and we wonder, as to what favourable orders have been passed. As is apparent from the aforesaid narration of facts, there was no favourable order granted by this Court in favour of the medical college for the current academic session 2017-18, rather its inspection for considering confirmation of letter of permission for the next year 2018-19 had been ordered. The decision will be in the hands of the MCI. After decision has been rendered on 18.9.2017 by this Court, an FIR has been lodged and it appears that money was yet to be exchanged. The FIR dated 19.9.2017 reflects that Mr. B.P. Yadav, Justice Quddusi, Ms. Bhawana Pandey, and Mr. Sudhir Giri were likely to meet Mr. Biswanath Agarwala for getting favourable order at Delhi shortly; whereas this Court has already decided the matter on 18.9.2017. Thus it is a far fetched and too tenuous to even assume or allege that the matter was pending in this Court for which any bribe was to be delive....
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....r the malefactor from appearing before the Court for an appropriate period of time. There is a duty cast upon an Advocate to protect the dignity of this Court not to scandalize the very institution as observed in the said decision. 25. In Leila David v. State of Maharashtra (2009) 10 SCC 337 this Court observed that making of scandalous remarks against High Court Judges and seeking their punishment on the allegation of their being party to genocide petition was dismissed and incumbent was punished. Scandalous allegation cannot be made against the Judges as observed in Amrik Singh v. State (Delhi Admn.) (1971) 3 SCC 215. In Bal Kishan Giri v. State of U.P. (2014) 7 SCC 280 this Court has observed that the allegation that the accused had the links with 3 Judges of the High Court who would favour in getting the bail, this Court held that such allegations are too serious, scandalous and admittedly sufficient to undermine the majesty of law and dignity of the court amounting to contempt. Plea by contemnor a practicing lawyer that he was misguided by another advocate is an afterthought. He must since have been fully aware of the consequence of allegations made by him. Sentence of simple....
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.... was not interfered with. The decision of this Court is on its own facts, even though it is a classic case of forum shopping. 149. In Arathi Bandi v. Bandi Jagadrakshaka Rao this Court noted that jurisdiction in a court is not attracted by the operation or creation of fortuitous circumstances. In that case, circumstances were created by one of the parties to the dispute to confer jurisdiction on a particular High Court. This was frowned upon by this Court by observing that to allow the assumption of jurisdiction in created circumstances would only result in encouraging forum shopping. 150. Another case of creating circumstances for the purposes of forum shopping was World Tanker Carrier Corpn. v. SNP Shipping Services (P) Ltd. wherein it was observed that the respondent/plaintiff had made a deliberate attempt to bring the cause of action, namely, a collision between two vessels on the high seas within the jurisdiction of the Bombay High Court. Bringing one of the vessels to Bombay in order to confer jurisdiction on the Bombay High Court had the character of forum shopping rather than anything else. 151. Another form of forum shopping is taking advantage of a view held by a....
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.... Khehar, J. noticed yet another form of forum shopping where a litigant makes allegations of a perceived conflict of interest against a Judge requiring the Judge to recuse from the proceedings so that the matter could be transferred to another Judge. 155. The decisions referred to clearly lay down the principle that the Court is required to adopt a functional test vis-à-vis the litigation and the litigant. What has to be seen is whether there is any functional similarity in the proceedings between one court and another or whether there is some sort of subterfuge on the part of a litigant. It is this functional test that will determine whether a litigant is indulging in forum shopping or not." 27. In view of the aforesaid it is clear that the submission raised that Hon'ble Chief Justice of India should not hear the matter or should not assign it on administrative side is highly improper. In our opinion there was no impropriety in assigning this matter to this Bench rather it was a constitutional imperative as per the mandate of the 5 Judge Bench, Supreme Court Rules, 2013 as well as the decision in Dr. D C Saxena (supra). It was an attempt of choosing a forum by submitti....
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..... In case majesty of our judicial system has to survive, such kind of petitions should not have been preferred that too against the settled proposition of law laid down by this Court in the aforesaid decisions of this Court in Dr. D C Saxena (supra) and K. Veeraswami (supra). 30. Submission was also made that unprecedented hearing was done on Friday by a Constitution Bench of this Court. It was a fait accompli and circumstances compelled hearing on 10.11.2017 as on Thursday in this case, order was passed bypassing the power of Hon'ble Chief Justice of India to constitute a 5-Judge Bench in order of seniority including the Hon'ble Chief Justice of India. It was not permissible as held by this Court in CJAR and hearing of the instant matter was scheduled for Monday, i.e. 13.11.2017, and Friday was the only day available on which the law was required to be settled otherwise judicial order was binding and it was necessary to decide the question as other Bench had requested the Hon'ble Chief Justice of India to assign this matter to an appropriate Bench. As Hon'ble Chief Justice of India had to assign it to a Bench, situation of dilemma was created for Hon'ble Chief Justice of India wh....