Pre-Litigation / During Litigation: Key Law Points

I take the privilege to present here some of the invaluable key points that if strictly pursued upon with her/his Lawyer may help the litigant to secure meaningful justice in a time bound manner.

It must be stated that some of the inputs below are the extracts of a PIL filed in Supreme Court by Janhit Manch & others, meticulously drafted by none other than Advocate Prashant Bhushan, one of the finest Legal fighters India has today. Link to Complete Petition: http://www.janhitmanch.org/judicialdelayssolutions.pdf

PRE-LITIGATION:

Time and again it is seen that Public Officials consciously indulge in complete disregard of established laws OR in neglect of their duties OR in not complying with Court orders.........and cause us to indulge in expensive and avoidable litigation.

That the government is known to be a huge contributor to delays, in matters where it is a party – at various stages – from evading notices, replying to notices and replying without application of mind, unnecessarily appealing even when the laws are clearly in favor of the other side, etc.

In Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), (2005) 6 SCC 344, paras 38, 39 this Court has observed and directed “… Wherever the statutory provision requires service of notice as a condition precedent for filing of Cases, it is not only necessary for the Governments or departments or other statutory bodies to send a reply to such a notice but it is further necessary to properly deal with all material points and issues raised in the notice.

The Governments, government departments or statutory authorities are defendants in a large number of Cases pending in various courts in the country. Judicial notice can be taken of the fact that in a large number of cases either the notice is not replied to or in the few cases where a reply is sent, it is generally vague and evasive. The result is that the object underlying Section 80 of the Code and similar provisions gets defeated. It not only gives rise to avoidable litigation but also results in heavy expenses and costs to the exchequer as well.

A proper reply can result in reduction of litigation between the State and the citizens. In case a proper reply is sent, either the claim in the notice may be admitted or the area of controversy curtailed, or the citizen may be satisfied on knowing the stand of the State. There is no accountability in the Government, Central or State or the statutory authorities in violating the spirit and object of Section 80… These provisions cast an implied duty on all Governments and States and statutory authorities concerned to send appropriate reply to such notices.

Having regard to the existing state of affairs, we direct all Governments, Central or State or other authorities concerned, whenever any statute requires service of notice as a condition precedent for filing of suit or other proceedings against it, to nominate, within a period of three months, an officer who shall be made responsible to ensure that replies to notices under Section 80 or similar provisions are sent within the period stipulated in a particular legislation. The replies shall be sent after due application of mind. Despite such nomination, if the court finds that either the notice has not been replied to or the reply is evasive and vague and has been sent without proper application of mind, the court shall ordinarily award heavy costs against the Government and direct it to take appropriate action against the officer concerned including recovery of costs from him.”.

Pls read Section 80 at this link:

http://www.vakilno1.com/bareacts/CivilProcedure/s80.htm

A new weapon is added to the armoury of section 80 on 13th January 2010 when the Bombay High Court has found the occasion to award a fine of Rs.40 lakhs on an NGO for wasting time of the court on a frivolous PIL. This order of the court may be used against Public officials who refuse to answer, diligently, notice so served to them, thereby compelling the people to knock doors of court, a litigation which could have been avoided had the public officials acted responsibly. PIL no.is 88 of 2008. Bombay High Court Original Jurisdiction. The Petitioner was Bhrashtachar Nirmulan Sangathan. This order of the court may be spelled out in the notice to alarm public authority/ officials.

PLEASE FIND FORMAT WHERE SUCH NOTICES MAY BE SERVED, OF COURSE WITH DESIRED CHANGES DEPENDING ON FACTS OF EACH CASE.

LETTER 1

From,

Mr. ABC

To,

Name of Public Official/ Name of the Public Authority

Address.

Sub: Notice u/s 80 of CPC 1908 in the light of Judgment of Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), (2005) 6 SCC 344, paras 38, 39.

Dear Sirs,

(Very briefly, state facts of the case and other relevant detail, which palpably suggest conscious neglect of duties / wilful disregard of letter of the Law so established / non implementation the Hon.SC / HC Orders.)

Moreover, at this point, we wish to place on record a Supreme Court Judgment given in respect of mandatory notices to be given to public authorities under section 80 of Civil Procedure Code 1908, before moving courts against them; and also wish to say few words about our (1) Constitution, the (2) discretionary powers of Public Authorities, the (3) history of State & Citizen relationship etc.

(1) Few Words about our Constitution: Our Democratic India is founded on Written Constitution and founding fathers and mothers established in the Constitution- both the ideals and the institutions & processes for achieving them. Human security and progress are sought to be secured through codified Laws and its enforcement.

In our vast, beautiful, geographical landscape of India, i.e. Bharat, no one will dispute, the constitution of India is the supreme & fundamental governing volume. It is nearly self contained as to broad principles of governance. It is mammoth in its content, defining every bit of good governance for the very accomplishment of security of life and of property to all Indians residing wherever in any corner of the world territory.

This epic governing volume makes a categorical announcement in the introductory passage that people of India are the architect of this volume. And therefore, every bit of word, whether by guidance or by mandatory injunction, contained in this governing volume, can safely be taken as, will bring prosperity to people of India when adhered to it, in letter and spirit. The spirited adherence to the words of this governing volume is the first promise all men at State organs make to the people of India.

All men comprising the State organs, as characterized in this governing volume, chiefly the Legislatures, the Executive government and the Judiciary, draw their origin, their authority and discharge their responsibilities within four corners of injunctions in this governing volume. These State organs, while in every exercise of their discretionary powers, take inspiration and guidance from this governing volume.

(2) Few words about Discretionary powers: Discretion being an element in all powers, but the concept of discretion imports a duty to be fair, candid and unprejudiced; not arbitrary, capricious or biased; much less, warped by resentment or personal dislike. Discretion allowed by the statute to the holder of an office is intended to be exercise according to the rules of reason and not according to personal opinion.

Discretionary powers are never absolute. Even if a statutory pronouncement state explicitly that the discretion it grants is absolute, this discretion is interpreted as requiring the holder of the authority to act strictly according to some procedure such as granting a hearing and acting impartially and acting in such a way to achieve the goal of the legislation for which the authority has been granted.

If a decision on a matter is so unreasonable that no authority could ever have come to it, then the courts can interfere. The repository of discretion must be prepared to justify in court the reasonableness of his belief and in arriving at a decision in the exercise of his discretionary powers. It is not enough to say that the discretion was exercised honestly by the authority.

It is pertinent to note that any action, decision or order of any statutory or public authority bereft of reasoning would be arbitrary, unfair and unjust violating article 14 of the Constitution of India or would be deemed to have been taken or arrived at by adopting unfair procedure offending article 21 of Constitution of India. Krishna Swami Vs Union of India. AIR 1993 SC 1407

LORD GREENE, MR in Associated Provincial Picture House Ltd Vs Wednesbury Corp observed that it is a established law that a Person entrusted with a discretion must direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his considerations matters which are irrelevant to the matter that he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting unreasonably.

The abuse of discretionary power is like saying- “as an Authority of Public Power- I may decide but declines to let you know the reasons or grounds of my decisions or provide reasons without being reasonable.

Reasons disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi judicial; and reveal a rational nexus between the facts considered and conclusions reached. Union of India Vs Mohan Lal Capoor (1973) 2 SCC 836

The Apex Court in one case viewed that when statute confers discretion on a holder of public office that should be exercised reasonable and rationally. U.P. State Road Transport Corporation V Mohd Ismail (1991) 3 SCC 239.

In our humble view- The basis of every law or every rule OR EVERY EXERCISE OF DISCRETION or every decision govt or govt agencies take, is on the premise of greatest good of the greatest number of people. The forms of accountability may differ but the basic idea remains the same that the holders of High Public Office must be able to publicly justify their exercise of power not only as legally valid but also socially wise just and reasonable, chiefly designed to add something more to the quality of life of the people. Every exercise of Power depend on this ideal for its validity.

A note was struck by Apex Court in Superintending Engineer, Public health, U.T. Chandigarh V Kuldeep Singh when it observed: “Every Public servant is a trustee of the society; and in all facets of public administration – every public servant has to exhibit honesty, integrity, sincerity and faithfulness in the implementation of the political, social, economic and constitutional policies to integrate the nation, to achieve excellence & efficiency in public administration. ...”

(3) Few words about historical State Citizenship relationship: Great Philosopher Thomas Hobbes ( 1588- 1671) says that prior to concept of Statehood, the man lived in chaotic conditions of constant fear. The life in the state of nature was solitary, poor nasty, brutish and short. For getting self protection and avoiding misery and pain, man voluntarily entered into a contract and surrendered their part of freedom to some might authority, who could protect their lives and property, which emerged later on as the ruler and which ultimately culminated into the shape of the State.

With the great passage of time and centuries together, Codified laws evolved and were introduced in human life. Men came together, they Voluntarily surrendered their individual sovereignty to State sovereignty, and opted to subject themselves to laws of the land, however, they were promised, in return, the Rule of codified laws. The rule of codified laws purported to promise the safety of their life & their property and also sought to guarantee the general dignity inherent in human person alonwith guarantee that he will not be discriminated. This is how the ancient Social contract between Men & State came into being.

Jeremy Bentham (1748-1832) of England, John Austin (1790-1859) again of England, Savigny of Germany, Puchta (1798-1856), Hugo Grotius (1583-1645), Immanuel Kant (1724- 1804), Scabelling (1775-1854), Kohler (1849-1919), Roscoe Pound (1870-1964), Greek philosophers, like the Hiraclitus (530- 470 B.C.), Socrates (470-399 B.C.), Arsitotle (384-322 B.C.), Thomas Acqinas ( 1225-1274), Duguit (1859-1928), Vico of Italy, Montesquiu of France, Hereder of Germany, Edmond Burke (1729-1797) of England, Sir Henry Maine (1822-1888) of England. Auguste Comte (1786-1857); Herbert Spencer (1820-1903); Ehrlich ( 1862-1922); Ihering (1818-1892) significantly contributed to today's modern concept of codification of laws and emergence of State Citizenship relationship.

Main thrust of the legal brains emphasizing on codification of laws, has been firstly, as a means of attainment of human perfection and secondly to secure liberty to individuals in the society. They all considered liberty as the first pre-requisite for the development of human personality. In their view, a State is like a family to which the interests of its members are always dear at heart, like a family which would not be happy if its members are in difficulty, want or trouble, like a family which would not interfere unnecessarily with the free choice of its members.

Among various definitions of State given by Scholars of law and by Philosophers, this appears to be more satisfactory and convincing. It is by professor Goodhart. He defines State in terms of its purpose. He states that the purpose of society which we call a State is to maintain peace and order within a demarcated territory. THE MINIMUM AND ESSENTIAL PURPOSE OF THE STATE IS TO MAKE LIFE POSSIBLE

And therefore, in the backdrop of ancient social contract, every Society & every Individual Citizen has certain basic assumptions to take it for granted that-

(i) His Life & Property will be protected and his liberty will be secured;

(ii) He can appropriate for his own use what he has created by his own labour and what he has acquired under the existing economic order;

(iii) That others will act with due care and will not cast upon him an unreasonable risk of injury;

(iv) That others will not commit any intentional aggression upon him;

(v) That people with whom he deals will carry out their undertakings and will act in good faith;

(vi) That he will have security as a job holder;

(vii) That State will bear the risk of unforeseen misfortune;

(viii) That State will bear the burden of supporting him when he becomes aged;

(4) Finally, it may be brought to your notice that in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), (2005) 6 SCC 344, paras 38, 39 the Hon'ble Supreme Court has observed and directed “… Wherever the statutory provision requires service of notice as a condition precedent for filing of Cases, it is not only necessary for the Governments or departments or other statutory bodies to send a reply to such a notice but it is further necessary to properly deal with all material points and issues raised in the notice.

There are NO disputes really to be resolved. We request you to reply while properly dealing with all material points and issues raised in the notice.

OUR QUERY:

(1) Specify the issue very briefly to which you are seeking explanation or answer from the public officials / Public authority.

Thank you.

Sincerely,

Encl.1) Copy of letter recorded to Hon'ble Bombay HC in this regard.

PLEASE NOTE / PLEASE NOTE / PLEASE NOTE

THIS BELOW SC ORDERS MAY BE ADDED IN THE NOTICE OF SECTION 80 DEPENDING UPON NATURE OF THE ISSUE YOU HAVE RAISED IN THE NOTICE.

(1) WHERE PROPER HEARING WAS NOT GIVEN TO YOU BY ANY QUASI JUDICIAL OR BY ANY ADMINISTRATIVE AUTHORITY:

Hearing, however once given must be genuine and not formal or empty public relation exercise. In other words there must not be lip service to this rule or an audience allowed which tantamount to nothing. Swadeshi Cotton Mills V Union Of India. AIR 1981 SC 818.

With the proliferation of administrative law, administrative authorities are in some kind of cases replacing courts of law and that has made all the more necessary that such authorities should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. The Siemens Engineering & Manufacturing Co. of India Ltd Vs The Union of India AIR 1976 SC 1785

(2) WHERE ACT OF THE STATE OR ANY PUBLIC AUTHORITY CAUSES LOSS OF REVENUE TO THE STATE EX-CHEQURE / COFFER:

The Supreme Court cautioned that with the change in socio-economic outlook, the Public Servants are being entrusted with more and more discretionary powers even in the field of distribution of government wealth in various forms. If a Public Servant abuses his office either by an act of omission or commission, and the consequence of that is injury to an individual or loss of public property, an action may be maintained against such Public Servant. Common Cause V Union Of India. AIR 1996 SC 3538.

(3) WHERE THE QUASI JUDICIAL / ADMINISTRATIVE AUTHORITY THOUGH OBSERVES THAT INJUSTICE WAS DONE TO YOU, YET DO NOT GIVE YOU RELIEFS PRAYED IN THE CASE:

In sant Raj’s Case the Labour Court found that the termination of service of the Appellants was bad and illegal but declined to grant the relief of reinstatement which should have ordinarily followed and instead in exercise of its discretion awarded one year’s wage as compensation in lieu of reinstatement on the ground that “the termination of service of each of the appellants was bona fide and not a colorable exercise of powers in accordance with service rules. The Supreme Court found an error apparent on the face of the record of the case inasmuch as if the termination of service was according to service rules and bona fide, it could not be simultaneously held to be illegal and invalid. The Apex Court therefore held that the discretion was exercised on irrelevant and extraneous considerations. Sant Raj Vs O. P. Singla AIR 1985

(4) WHERE QUASI JUDICIAL / ADMINISTRATIVE AUTHORITY TAKES ANY DECISION WHICH IS ABSURD BY ANY ORDINARY SENSE:

(5) WHERE ADMINISTRATIVE AUTHORITY DOES NOT RECORD REASON FOR ITS DECISION WHILE DECIDING THE RIGHTS OF A CITIZEN BEFORE IT.

The question as to whether an administrative authority should record reasons for its decisions has however come up for consideration before the Supreme Court in number of cases. Underlying the need the SC in Travancore Rayons Ltd Vs Union of India AIR 1971 SC 862 observed that the necessity to give sufficient reasons which disclose proper appreciation of the problem to be solved and the mental process by which the conclusion is reached where a non judicial authority exercises a judicial function is obvious. Here in this case the order of the Central Govt in rejecting a Revision u/s 36 of the Central Excises & Salt Act 1944 merely stated that the Govt having carefully considered the points made by the Applicant saw no reason to interfere with the order. The order of the Central Govt being laconic (brief) was held to be vitiated.

The Supreme Court in Binapani Dei's case observed that if “there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentialsd of Justice be ignored and an order to the prejudice of a person is made, the order is a nullity. State of Orissa V Dr(miss) Binapani Dei AIR 1967 SC 1269;

(6) WHERE QUASI JUDICIAL / ADMINISTRATIVE AUTHORITIES PASS ORDERS WITHOUT STATING REASONS IN THE ORDER:

The reasons if disclosed would be open to judicial scrutiny for ascertaining their nexus with the order, the refusal to disclose the reasons would equally be open to the scrutiny of the Court. Maneka Gandhi Vs Union of India AIR 1978 SC 597 at page 613.

An order of Quasi Judicial nature without reasons is a wholly defective order in the eyes of law. Govt of India Vs Maxim A Lobo (1991) 190 ITR 101

Fair play requires recording of germane and relevant precise reasons when an order affects the right of a citizen or a person irrespective of the fact whether it is judicial, quasi judicial or administrative act. Recording of reasons is also an assurance that the authority concerned has applied its mind to the facts on record. Reasons also aids the Appellate or Revisional Authority to see whether the maker of the order, Judgment, decree has justly meet out justice to the aggrieved person. Maharashtra State Board of Secondary & Higher Secondary Education Vs K.S. Gandhi (1991) 2 SCC 715

A Judgment/ Order must be a self contained document from which it should appear as to what were the facts of the case and what was the controversy which was tried to be settled by the Court. The process of reasoning by which Court came to a particular conclusion and decreed or dismissed the suit should clearly be reflected in the Judgment/Order. [ Balraj Taneja V Sunil Madan, AIR 1999.]

The quasi judicial authorities are enjoined with the duty and responsibility to see to it that in adjudicating upon proceedings which come up before them they pass properly reasoned orders so that those who are affected by such orders are assured that their case have received proper consideration at the hands of the said authorities and that such decisions have been reached according to law and have not been the result of caprice, whim or fancy and have been reached on ground of policy or expediency. Harinagar Sugar Mills Ltd Vs Shyam Sunder Jhunjhunwala AIR 1961 SC 1669

(7) WHERE YOU ALLEGE THAT QUASI JUDICIAL / ADMINISTRATIVE AUTHORITIES HAVE NOT COMPLIED TO THE PRINCIPLES OF NATURAL JUSTICE WHILE DECIDING ISSUE RAISED IN THE NOTICE. THERE ARE TWO BROAD PRINCIPLES OF NATURAL JUSTICE- (1) REASONABLE OPPORTUNITY MUST BE MADE AVAILABLE TO BOTH PARTIES BEFORE REACHING IN ANY CASE; (2) THE PRESIDING JUDGE SHOULD NOT HAVE ANY, PERSONAL OR PECUNIARY, INTEREST IN THE OUTCOME OF THE CASE BEFORE IT.

In matters involving civil consequesnces, any decision or Order has to be made consistently with rules of natural justice. State of Orissa V Dr (Miss) Binapani Dei AIR 1967 SC 1269.

Every Authority, Quasi Judical, or administrative or Executive, should act fairly, reasonably and in a just manner, when the result of the exercise of powers is likely to affect any person or visit him with civil consequences. A K Kraipak V Union Of India AIR 1970 SC 150.

Comes with this the associated question: What is a Civil Consequence ? “ Civil Consequences undoubtedly cover, viewed the SC in Mohinder Singh Gill case, infraction of not merely property or personal rights, but of civil liberties, material deprivations and non pecuniary damages. In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequence.

In cases therefore where an order is made in violation of rules of natural justice, relief under Art. 226 of the Constitution will not be denied. Titaghur Paper mills Co Ltd V State of Orissa AIR 1983 SC 603.

It has been upheld by the Apex Court violation of rules of natural Justice results in arbitrariness which is the same as discrimination and where discrimination is the result of State action, it is violation of Article 14. Union of India V Tulsiram Patel AIR 1985 SC 1416.

The Principles of natural Justice forms part of Art.14 of Constitution of India. Dr K C Malhotra V The Chancellor, H P University, Shimla AIR 1995 HP 156 (DB).

LETTER 2

To,

The Hon.Chief Justice & the Companion Justices of Hon. ….. High Court.

Regarding: Strict enforcement of law established by Hon’ble Supreme Court in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), (2005) 6 SCC 344, paras 38, 39

Hon’ble the Chief Justice,

A notice is served to ……..(name of the Public authority) for …..(very briefly the issue raised in that notice.

Also, we humbly submit that in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), (2005) 6 SCC 344, paras 38, 39 the Hon'ble Supreme Court has observed and directed “… Wherever the statutory provision requires service of notice as a condition precedent for filing of Cases, it is not only necessary for the Governments or departments or other statutory bodies to send a reply to such a notice but it is further necessary to properly deal with all material points and issues raised in the notice.

If Public Officials will act diligently, reasonably and responsibly, the writer will not have the occasion to knock the doors of Justice. The Public officials are impressed about this letter to this Court, in the hope that they will reply to the notice while properly addressing the points so raised. Enclosed, please find copy of a legal notice letter sent to Public Official.

We are of the view that - the Petition so if filed, can safely be said to be avoidable, the Petition can safely be said to be causing loss of precious time of the Court, though at the instance of these Respondent Public officials.

The Hon'ble Chief Justice, I am impelled to produce some classical observation of Apex Court merely reflecting the scale of corruption in our country.

(1) They said - “……….They have developed an utter disregard for law, nay – a contempt for it; the feeling that the law is meant for lesser mortals and not for them. The Courts in this country have been trying to combat this trend with some success as the recent events show. But how many matters we can handle ? How many of such matters are still there ? The real question is how to swing the polity into action, a polity which has become indolent and soft in its vitals. Can the courts alone do it ? Even so, to what extent, in the prevailing state of affairs ? Not that we wish to launch a diatribe against anyone in particular, but judges of this country are also permitted, we presume, to ask in anguish, “What have we made of our country in less then fifty years ? Where has the respect and regard for law gone ? And who is responsible for it ? DDA Vs Skipper Construction Co. (1996) 4 SCC 622, 645, 646.

(2) In Vineet Narain Vs Union of India, the apex court went on to emphasize that when it comes to corruption, as it exists at different levels, proves to be both powerful and stubborn to stall any real or superficial moves in that direction. In other words – politico bureaucratic wall proves to be impregnable against all possible onslaught against corruption. Judicial response has been slow and varied but that is the only response available at the moment. There is no premium on honesty. Everything is a matter of manipulation. Being a soft State – everything is circumvented and manipulated. In the name of eliminating corruption we see shadow boxing.

(3) A note was struck by Apex Court in Superintending Engineer, Public health, U.T. Chandigarh V Kuldeep Singh when it observed: “Every Public servant is a trustee of the society; and in all facets of public administration – every public servant has to exhibit honesty, integrity, sincerity and faithfulness in the implementation of the political, social, economic and constitutional policies to integrate the nation, to achieve excellence & efficiency in public administration. ...”

(4) The Supreme Court Bench in Aug.2008, hearing an issue of unauthorised occupation of official Bunglows by some members of Parliament , during arguments, Justice Agrawal said: “The whole government machinery is corrupt, whether at the Centre or in the States. They [senior officials] don’t apply their mind, rather they don’t have a mind. They don’t have guts to differ with the opinion of the clerks We are fed up with this government. There is no accountability and nobody bothers about laws or guidelines. Nobody in the government works and the whole government has become non-functional. That is why PILs are filed.” Justice Singhvi intervened to say: “God alone will have to help this country.” Justice Agrawal said, “Even God will not be able to help this country. God is a mute spectator as he also feels helpless. Our country’s character has gone. We are helpless.”

It is expected that this Hon'ble Court will find the occasion to reverse this trend of growing lawlessness in the society and will strictly enforce the Law established by Hon’ble Supreme Court in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), (2005) 6 SCC 344, paras 38, 39, in the event Public officials refuses to reply notice as per law established by Hon'ble Supreme Court in cited case hereinbefore.

Thanking you,

From

Mr ABC

Encl.1) Copy of notice u/s 80 CPC 1908 addressed to…..

HOWEVER REMEDY OF SECTION 80 IS AVAILABLE ONLY AGAINST THE GOVT AND ITS AGENCIES, YET SIMILAR NOTICE (NOT MENTIONING SECTION 80) CAN BE SENT TO OPPOSITE LITIGANTS WHO IS A PRIVATE PERSON/ BODY, STATING, ON PRINCIPLE OF EQUITY, CELEBRATED IN ARTICLE 14 OF CONSTITUTION OF INDIA, THE JUDGMENT OF THE HON’BLE SUPREME COURT CAN DEFINITELY BE USED AGAINST HIM, FOR FORCING THE WRITER TO INDULGE IN EXPENSIVE AVOIDABLE LITIGATION WHERE THE PRIVATE PERSON/ BODY HAS NO PRUDENT ARGUMENT TO PRESENT HIS CASE.

DURING LITIGATION:

The Litigants’ grievance is that there are inordinate delays in the dispensation of justice in this country today.

The Litigants’ grievance is also that the impact of these delays and the denial of justice - is the cumulative loss of public confidence in the judiciary, and a resort to lawlessness and violent crime as a method of negotiating disputes.

[1] Order 17, Rule 1, CPC does not allow more than 3 adjournments and is to be read with the proviso to Order 17, Rule 2 where Clause (b) stipulates that no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party That although however, in practice, adjournments are sought and obtained at the asking and other delays are being allowed with impunity or at very nominal costs, if any. That this is the situation prevailing in spite of this Court having held in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), (2005) 6 SCC 344, that “…grant of any adjournment let alone the first, second or third adjournment is not a right of a party. The grant of adjournment by a court has to be on a party showing special and extraordinary circumstance. It cannot be routine. While considering prayer for adjournment, it is necessary to keep in mind the legislative intent to restrict grant of adjournments.”

[2] Specific provisions in the Cr PC whereby an accused / undertrial may not be detained for longer than specified periods – That this Court has passed directions in 1980 1 SCC 93 - Hussainara Khatoon v State of Bihar to strictly implement S 167(2) Cr PC and S 167(5) Cr PC whereby an accused may not be detained for longer than 15 days and if the investigation is not concluded in 6 months, then the Magistrate shall order stopping further investigations, unless the officer satisfies the Magistrate that continuation of the investigation beyond 6 months is necessary, these provisions are seldom, if at all, followed. Further, although the Cr PC Amendment Act, 2005, has enacted S 436 A which stipulates that the maximum period for which undertrial prisoners can be detained is one-half of the maximum period of imprisonment specified for that offence under that law (excluding offences for which the punishment of death has been specified as one of the punishments under that law.

[3] Non-implementation of laws on perjury: lawyers and litigants known to blatantly misrepresent facts, and get away with impunity, and this results in delays. Section 193, IPC (punishment for perjury and fabrication of false evidence) provides for both imprisonment and fine, and yet, is seldom invoked. most people still get away with inconsistent statements and obvious lies in court, without any consequence at all.

[4] In Salem Advocate Bar Assn. v. Union of India, (2005) 6 SCC 344 this Court has observed as follows:

“Para 36. Section 35 of the Code deals with the award of costs and Section 35-A with the award of compensatory costs in respect of false or vexatious claims or defences. Section 95 deals with grant of compensation for obtaining arrest, attachment or injunction on insufficient grounds. These three sections deal with three different aspects of the award of costs and compensation. Under Section 95 costs can be awarded up to Rs 50,000 and under Section 35-A, the costs awardable are up to Rs 3000. Section 35-B provides for the award of costs for causing delay where a party fails to take the step which he was required by or under the Code to take or obtains an adjournment for taking such step or for producing evidence or on any other ground. In the circumstances mentioned in Section 35-B an order may be made requiring the defaulting party to pay to the other party such costs as would, in the opinion of the court, be reasonably sufficient to reimburse the other party in respect of the

expenses incurred by him in attending court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of the suit or the defence. Section 35 postulates that the costs shall follow the event and if not, reasons thereof shall be stated. The award of the costs of the suit is in the discretion of the court. In Sections 35 and 35-B, there is no upper limit of amount of costs awardable.

Para 37. Judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded against the unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their own costs. In a large number of cases, such an order is passed despite Section 35(2) of the Code. Such a practice also encourages the filing of frivolous suits. It also leads to the taking up of frivolous defenses. Further, wherever costs are awarded, ordinarily the same are not realistic and are nominal. When Section 35(2) provides for cost to follow the event, it is implicit that the costs have to be those which are reasonably incurred by a successful party except in those cases where the court in its discretion may direct otherwise by recording reasons thereof. The costs have to be actual reasonable costs including the cost of the time spent by the successful party, the transportation and lodging, if any, or any other incidental costs besides the payment of the court fee, lawyer’s fee, typing and other costs in relation to the litigation. It is for the High Courts to examine these aspects and wherever necessary make requisite rules, regulations or practice direction so as to provide appropriate guidelines for the subordinate courts to follow.”

[5] The Courts are duty bound to pronounce reasoned Judgments/ Orders. That must be ensured. It is evidently seen that the great uncertainty lurking on the faces of advocates and counsels for the outcome of their genuine cases before the court and only reason for this I could imagine is:

Our judges have a practice of passing orders but do not explain in the order as how they come to pass this Order, ie. they do not pass mandated reasoned orders. The advocates and counsels hardly object to this practice. However unreasoned orders are suicidal for their clients.

The litigants must fight for reasoned orders of the Court for it is obligatory under law for every Judicial authority to pass reasoned Orders because Reasoned orders are necessary for Higher Courts when the same case comes to them in appeal.

Reasoned Orders are inescapable requisite of a Case.

[6] In the light of Contempt of Court Act 1971 - Section -2(c ), which says, among other things, the doing of any act, whatsoever, which interferes in the due course of Judicial proceedings or any act which obstructs in the administration of justice in any manner, may be charged with serious offence of criminal contempt of the Court.

The process of administration of justice begins with the violation of a right of a person or the committing of an offence by a person, well before any FIR is filed OR case is registered in the court.

Thus, the offence includes-

1) Where Police refuses to register FIR , or refuses to investigate, or refuses to apprehend or arrest offenders... or trying to protect the accused or the guilty. However, the element of police acting deliberately and consciously without any justification is essential.

2) Not only the Police but WHOEVER interferes, including political interferences, in the process of investigation or interferences during the trial of offence, or any other proceeding in the Court, can be charged with the above offence.

3) Similarly, taking/ granting unwarranted adjournments, making frivolous defense, making frivolous petition/ admitting vague cases/ admitting undeserving appeals, not filing replies/affidavits as directed by the court/ or as required by law to be filed, comes within the ambit of criminal contempt of the court because it positively obstruct /abuse/of misusing the process of the Court.

4) Also, like an ordinary individual, whoever occupies the seat of adjudication, deciding the rights of the people, say Judges, Magistrates, and Commissioners can also be charged with the above offences, for their acts as stated above.

The Contempt Petition is filed in the High Court and the best part is that proceedings have to begin immediately. However, before filing Criminal Contempt of Court Petition, Sanction of Advocate General of the State Govt concerned must be obtained. If they do not give sanction or do not reply within a reasonable time of 30 days, than Contempt petition can be filed informing the Court about sanction not given or no reply received.

Important note: However, acts which are enumerated in Indian Penal Code as offences in administration of Justice, cannot become the subject matter of Criminal Contempt Of Court, like filing false affidavits and many others. Yet in these cases FIR can be filed or complaint can be made with the Judicial Magistrate.

However the punishment is merely six months or fine or both, yet the fear of judicial proceedings that has to begin forthwith, can be the biggest deterrent for potential offenders who abuse process of justice one way or the other.

[7] In Indian Bank v. Satyam Fibres (India) (P) Ltd (1996) 5 SCC 550, a two-judge bench, after making reference to a number of earlier decisions rendered by different High Courts in India, stated the legal position thus:

“Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order.”

In SP Chengalvaraya Naidu vs Jagannath (1994) 1 SCC 1, the Apex Court has ruled: “a judgement or decree obtained by playing fraud on the Court is a nullity and non est. in the eyes of the Law – it can be challenged in any Court at any stage of the litigation.”

YET TO BE CONCLUDED………..

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Legal issues !!

If you are facing any of these issues like (a) Recovery of Moneys (b) Immovable property disputes (c) grievances against Municipalities & Govts., including challenge to legitimacy of laws etc. (d) grievances against illegalities and highhandedness of Police like illegal arrests, refusal to register FIR, deliberately flawed investigations, etc (e) False FIRs (f) False Claims (g) False evidences (h) Grievances against Judges (i) Illegal or perverse Orders of the Courts / Tribunals, among others.

If you are looking for draft of any legal proceeding; or if you want to know the nature and attribute of any legal proceeding; or if you want to know the procedure followed in any legal proceeding; or if you want to know the grounds on which any order of the court / tribunal is challenged; or if you are facing any frivolous litigation.

Sandeep Jalan

Advocate

Law Referencer: https://www.litigationplatform.com/

Thank you.

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