Orality and Written Submissions

 

P.N. Eswara Iyer v. Supreme Court of India, (1980) 4 SCC 680 at page 686

13. We must make it perfectly plain, right at the outset, that audi alteram partem is a basic value of our judicial system. Hearing the party affected is too deeply embedded in the consciousness of our constitutional order. The question is about the quality, content and character of "hearing" in the special "review" situation. Incidentally, we may deal with oral hearing and its importance in the court process, the possibilities of its miniaturisation and, in certain categories its substitution by written submissions.

14. We agree that public hearing is of paramount significance. Justice, in the Indian Republic, is public; and if Judges shun the halls of court, read papers at home, confer in private and issue final fiats without listening to the Bar as the representative of the seekers of justice, the rule of law could well darken into an arcane trick and back-door diktats issued from "robed" adjudicators stain the escutcheon of justice. We also agree that oral advocacy has a non-fungible importance in the forensic process which the most brilliant brief cannot match and the most alert Judge cannot go without. The intellectual jallywork of intricate legal reasoning and impassioned sculpture of delicate factual emphasis may often be beyond the craftsmanship of pen and paper. There is no controversy that disposal by circulation, Secretariat fashion, cannot become a general judicial technique nor silent notings replace Bench-Bar dialogues. We must clarify one point. "Circulation", in the judicial context, merely means, not in court through oral arguments but by discussion at judicial conference. Judges, even under the amended rule, must meet, collectively cerebrate and reach conclusions. Movement of files with notings cannot make do. Otherwise, mutual persuasion, reasoned dissent and joint judgment will be defeated and machinisation of opinion and assertions of views in absentia will deprive judicial noetics of that mental cross-fertilisation essential for a Bench decision. The learned Solicitor General strongly urged that he was at one with counsel opposite on this point. We agree.

 

P.N. Eswara Iyer v. Supreme Court of India, (1980) 4 SCC 680 at page 688

19. This Court, as Sri Garg rightly emphasised, has assigned special value to public hearing, and courts are not caves nor cloisters but shrines of justice accessible for public prayer to all the people. Rulings need not be cited for this basic proposition. But every judicial exercise need not be a public show. When Judges meet in conference to discuss it need not be televised on the nation's network. The right to be heard is of the essence but hearing does not mean more than fair opportunity to present one's point on a dispute, followed by a fair consideration thereof by fair minded Judges. Let us not romanticise this process nor stretch it to snap it. Presentation can be written or oral, depending on the justice of the situation. Where oral persuasiveness is necessary it is unfair to exclude it and, therefore, arbitrary too. But where oral presentation is not that essential, its exclusion is not obnoxious. What is crucial is the guarantee of the application of an instructed, intelligent, impartial and open mind to the points presented. A blank Judge wearied by oral aggression is prone to slumber while an alert mind probing the "papered" argument may land on vital aspects. To swear by orality or to swear at manuscript advocacy is as wrong as judicial allergy to arguments in court. Often-times, it is the Judge who will ask for oral argument as it aids him much. To be left helpless among ponderous paper books without the oral highlights of counsel, is counterproductive. Extremism fails in law and life.

What business can be transacted under the head "any other item"

The decision in M.I. Builders (P) Ltd. v. Radhey Shyam Sahu [M.I. Builders (P) Ltd. v. Radhey Shyam Sahu, (1999) 6 SCC 464] , to the effect that an important issue cannot be decided under the residuary agenda item "any other item", will not also go to the rescue of the complainant companies, since the matter in M.I. Builders [M.I. Builders (P) Ltd. v. Radhey Shyam Sahu, (1999) 6 SCC 464] concerned the permission granted by the Municipal Corporation to a builder to construct an underground shopping complex in a park. The Court found the decision taken by the Mahapalika to be in clear breach of Sections 91 and 119 of the U.P. Municipal Corporation Act, 1959.

Company does not suffer mental agony & temporary injunctions are regulated by CPC alone, not by Specific Relief Act

Best Sellers Retail (India) (P) Ltd. v. Aditya Birla Nuvo Ltd., (2012) 6 SCC 792

[Order 39, Rule 1/2]

Right to Form Association and State's Dictates

 As per Damyanti Naranga v. Union of India, (1971) 1 SCC 678 [5 Judges], the right to form association includes the right to its continuance and any law altering the composition of the association compulsorily will be breach of the right to form association guaranteed under the constitution.

Article 19(1)(c)

also in 2019 18 SCC 287 Maharashtra Archery Assn. v. Rahul Mehra, (2019) 18 SCC 287

Performance of an impossible act deserves to be excused

K.S. Muthu v. T. Govindarajulu, (2009) 17 SCC 353 

Gift Deed - when exigible to stamp duty

Kale v. Dy. Director of Consolidation, (1976) 3 SCC 119 at page 126.

10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:

"(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family.

(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence.

(3) The family arrangement may be even oral in which case no registration is necessary.

(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable.

(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed, and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same.

(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement."

Combining Arbitration - Multiparty

Acknowledgement in writing after limitation amounts to implied promise to pay and give fresh limitation period

Maharashtra Agro-Chemicals and Fertilizers v. Deoram Baburao Gavade, 1993 SCC OnLine Bom 482| (1993) 95 Bom LR 785  (Bombay High Court)

SBI v. Kanahiya Lal 2016 SCC OnLine Del 2639 : (2016) 157 DRJ 403  (Delhi High Court)

Section 50 NDPS not applicable when search is not of a person

Judicial Supervision of Tribunals | Decisional Independence | Autonomy

Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1 : 2015 SCC OnLine SC 964 at page 594

714. The independence of the judiciary takes within its fold two broad concepts: (1) Independence of an individual Judge, that is, decisional independence; and (2) Independence of the judiciary as an institution or an organ of the State, that is, functional independence. In a lecture on Judicial Independence, Lord Phillips [ Former President of the Supreme Court of the United Kingdom and Lord Chief Justice of England and Wales] said:

“In order to be impartial a Judge must be independent; personally independent, that is free of personal pressures and institutionally independent, that is free of pressure from the State.”

 

This extract is taken from Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1 : 2015 SCC OnLine SC 964 at page 595

718. The entire package of rights and protections ensures that a Judge remains independent and is free to take a decision in accordance with law unmindful of the consequences to his/her continuance as a Judge. This does not mean that a Judge may take whatever decision he/she desires to take. The parameters of decision-making and discretion are circumscribed by the Constitution, the statute and the Rule of Law. This is the essence of decisional independence, not that Judges can do as they please.

 

This extract is taken from Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1 : 2015 SCC OnLine SC 964 at page 597

724. Similarly, Section 3 of the Judges (Protection) Act, 1985 provides, inter alia, that no court shall entertain or continue any civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function. This is in addition to the protection given by Section 77 of the Penal Code, 1860 which provides that:

“77. Act of Judge when acting judicially.—Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law.”

This extract is taken from Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1 : 2015 SCC OnLine SC 964 at page 598

726. Generally speaking, therefore, the independence of the judiciary is manifested in the ability of a Judge to take a decision independent of any external (or internal) pressure or fear of any external (or internal) pressure and that is “decisional independence”. It is also manifested in the ability of the institution to have “functional independence”. A comprehensive and composite definition of “independence of the judiciary” is elusive but it is easy to perceive.

 

 

Supreme Court in Mohd. Yunus v. Mohd. Mustaqim and others, AIR 1984 SC 38 a Coordinate Bench observed as follows:

“6. The petition under Art. 227 of the Constitution was wholly misconceived. An appeal lay from an order under Order XXI, Rule 92 setting aside or refusing to set aside a sale under Order XLIII, Rule 1 (i) to the District Judge. That apart, the application made by the petitioner claiming to be the legal representative of the surety, the judgment-debtor's representative, on the one hand and the auction-purchaser, the decree-holder's representative, on the other alleging that there had been a fraud perpetrated by the decree-holder in causing the sale to be held, with a prayer for recording satisfaction of the decree under Order XXI, Rule 2, raised a question relating to the execution, discharge or satisfaction of the decree and therefore fell within the purview of Section 47 which prior to February 1, 1977 was appealable because then a decision under Section 47 was deemed to be a decree under Section 2 (2) of the Code, and therefore the petitioner had the remedy of an appeal to the District Judge. Even if no appeal lay against the impugned orders of the learned Subordinate Judge, the petitioner had the remedy of filing a revision before the High Court under Section 115 of the Code. Upon any view of the matter, the High Court had no jurisdiction to interfere with the impugned orders passed by the learned Subordinate Judge, under Art. 227 of the Constitution. A mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Article 227.

 

 

T.C. Basappa v. T. Nagappa, (1955) 1 SCR 250 : AIR 1954 SC 440 : 10 ELR 14 (5 Judges)

10. A tribunal may be competent to enter upon an enquiry but in making the enquiry it may act in flagrant disregard of the rules of procedure or where no particular procedure is prescribed, it may violate the principles of natural justice. A writ of certiorari may be available in such cases. An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the face of the proceedings, e.g. when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision. The essential features of the remedy by way of certiorari have been stated with remarkable brevity and clearness by Morris, L.J. in the recent case of Rex v. Northumberland Compensation Appellate Tribunal [(1952) 1 KB 338 at 357] . The Lord Justice says:

“It is plain that certiorari will not issue as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for re-hearing of the issue raised in the proceedings. It exists to correct error of law when revealed on the face of an order or decision or irregularity or absence of or excess of jurisdiction when shown.”

 

7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited “ to seeing that an inferior Court or Tribunal functions within the limits of its authority,” and not to correct an error apparent on the face of the record, much less an error of law. In this case there was, in our opinion, no error of law much less an error apparent of the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Art. 227, the High Court does not act as an appellate Court or Tribunal. It will not review or reweigth the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision.”

 

 

T. Sudhakar Prasad v. Govt. of A.P., (2001) 1 SCC 516 : 2001 SCC (L&S) 263 at page 531

18. Subordination of Tribunals and courts functioning within the territorial jurisdiction of a High Court can be either judicial or administrative or both. The power of superintendence exercised by the High Court under Article 227 of the Constitution is judicial superintendence and not administrative superintendence, such as one which vests in the High Court under Article 235 of the Constitution over subordinate courts. Vide para 96 of L. Chandra Kumar case [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] the Constitution Bench did not agree with the suggestion that the Tribunals be made subject to the supervisory jurisdiction of the High Courts within whose territorial jurisdiction they fall, as our constitutional scheme does not require that all adjudicatory bodies which fall within the territorial jurisdiction of any High Court should be subject to its supervisory jurisdiction. Obviously, the supervisory jurisdiction referred to by the Constitution Bench in para 96 of the judgment is the supervision of the administrative functioning of the Tribunals as is spelt out by discussion made in paras 96 and 97 of the judgment.

 

K’, A Judicial Officer, In re, (2001) 3 SCC 54 at page 64[1]

12. Though the power to make remarks or observations is there but on being questioned, the exercise of power must withstand judicial scrutiny on the touchstone of following tests: (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct. The overall test is that the criticism or observation must be judicial in nature and should not formally depart from sobriety, moderation and reserve (see Mohd. Naim [AIR 1964 SC 703 : (1964) 2 SCR 363 : (1964) 1 Cri LJ 549] ).

 

Rojer Mathew v. South Indian Bank Ltd., (2020) 6 SCC 1 : 2019 SCC OnLine SC 1456 at page 171

215. It is hence clear post L. Chandra Kumar [L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 : 1997 SCC (L&S) 577] that writ jurisdiction under Article 226 does not limit the powers of High Courts expressly or by implication against military or armed forces disputes. The limited ouster made by Article 227(4) only operates qua administrative supervision by the High Court and not judicial review. Article 136(2) prohibits direct appeals before the Supreme Court from an order of Armed Forces Tribunals, but would not prohibit an appeal to the Supreme Court against the judicial review exercised by the High Court under Article 226.

 

 

---

[1] This is for judicial officer of court. But important to see that it contemplates notice etc.