Punjab-Haryana High Court
P.S. Sawhney vs Union Of India And Others on 24 January, 2014
Bench: Satish Kumar Mittal, Amol Rattan Singh
LPA No.1969 of 2011 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
LPA No.1969 of 2011
Decided on : January 24, 2014
P.S. Sawhney
...Appellant
Versus
Union of India and others
...Respondents
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE AMOL RATTAN SINGH
Present:- Appellant in person.
Mr. Sanjay Kaushal, Advocate for
respondent No.2.
Mr. Naresh Prabhakar, Advocate
along with respondent No.3, in person.
***
Amol Rattan Singh, J.
This appeal has been filed against the judgment and order of the learned Single Judge, dismissing the appellants' writ petition (CWP No.22637 of 2010), in which he had sought a direction for recalling of the order dated 31.05.2000, passed in CWP No.5075 of 1982, on the ground that the order in that writ petition had been obtained by fraud and collusion.
2. The appellant had cited the case of Bank of India and another Vs. Avinash D. Mandivikar and others, (2005) 7 SCC 690, to take a plea that fraud vitiates all proceedings and the Court would be justified in making an intervention, even though the litigant himself was not personally affected by the issue involved.
3. The learned Single Judge (in the order against which the present appeal has been filed), has dismissed the petition (CWP Chander Vikas 2014.01.29 12:33 I attest to the accuracy and integrity of this document Chandigarh LPA No.1969 of 2011 -2- No.22637 of 2010), vide his order dated 23.08.2011, as being not maintainable, in view of the fact that the petitioner, upon a specific query by the Court, had stated that he is not personally interested in the property which was subject matter of litigation in CWP No.5075 of 1982, but was concerned about the fact that a respondent had secured an order in his favour by deceit.
4. The learned Single Judge dismissed the petition on the short ground that a person does not litigate in a Court, unless he has interest in the subject matter and, since the petitioner is not a person who has been defrauded or who has come to any harm as the result of a wrongful act by the respondents, the writ Court would not be inclined to examine the issue brought at the instance of a chance litigant.
5. Now also, in appeal, the appellant has appeared in person before us and has stated that House No.1232, Sector-43B, Chandigarh, which was the subject matter of litigation in CWP No.5075 of 1982, has been "pocketed" by respondent No.3 herein, one Rajinder Ghai, Ex. Legal Adviser of the Chandigarh Housing Board, even though he was not eligible for allotment of the said house, as he did not fulfill the terms and conditions for such allotment. As such, he was seeking the setting aside of that allotment, by recall of the order/judgment passed on 31.05.2000, in CWP No.5075 of 1982 as it was by virtue of the said judgment, that the house was allotted to respondent No.3.
6. We proceed to examine the case on the issues that decision arise herein, in our opinion.
7. First, coming to the issue as to whether the appellant before us, despite his statement before the learned Single Judge, is a person Chander Vikas 2014.01.29 12:33 I attest to the accuracy and integrity of this document Chandigarh LPA No.1969 of 2011 -3- who was interested in the property concerned or not, it is first essential to examine the parties to CWP No.5075 of 1982 and the relief sought therein.
8. The judgment in the said writ petition was annexed as Annexure P-15A with Civil Writ Petition No.22637 of 2010 (out of which the present appeal arises). Respondent No.3 herein, i.e. Rajinder Ghai, had filed the said petition (CWP No.5075 of 1982), seeking a writ in the nature of mandamus, commanding the respondent in that petition, i.e. the Chandigarh Housing Board, which is respondent No.2 in the present appeal also, to allot him a Higher Income Group (Upper) Independent Built-Up House, in Sector-43B, Chandigarh.
9. The said writ petition was allowed by the learned Single Judge on 31.05.2000, directing the Board to allot a house in the above mentioned category, which, it seems, had already been kept reserved vide an interim order passed in that petition, on 17.12.1982.
The said house was to be allotted at the same price as was charged by the Board from other applicants in the draw of lots, held on 17.12.1982.
10. That judgment and order of the learned Single Judge, in CWP No.5075 of 1982, was never challenged and has thus, become final, as per learned counsel for the Chandigarh Housing Board.
11. The writ petition from which this appeal arises, i.e. CWP No.22637 of 2010, was, thus, filed more than 10 years after that order became final.
12. It is rather strange that the appellant, as petitioner in Civil Writ Petition No.22637 of 2010, chose to make a statement before the Chander Vikas 2014.01.29 12:33 I attest to the accuracy and integrity of this document Chandigarh LPA No.1969 of 2011 -4- learned Single Judge that he is not interested in the property, but only concerned about an order obtained by deceit, being a retired teacher in an educational institute, who has concern for "purity in life".
We say this, because a bare perusal of the present appeal itself, shows that the appellant was very much interested in allotment of House No.1232, Sector-43B, Chandigarh, to himself, as he has stated in para No.4 of the pleadings in this appeal, as follows:
"This appellant has been litigating for this very house, i.e. House No.1232, Sector-43B, Chandigarh , for the last 03 (three) decades, which is candidly reflected from the record."
13. Even in the writ petition out of which this appeal arises, he had stated in Paras 1 & 28 thereof, that he was an applicant for registration of allotment of an independent MIG House on 05.01.1978 and that he had locus to file the writ petition, as he had been litigating for that very house since 30.03.1990 without success and respondents No.2 and 3 (Chandigarh Housing Board and Rajinder Ghai), had levelled motivated allegations of forgery against him.
14. He had also stated in Para 26 of CWP No.22637 of 2010 that he had not filed any such or similar petitions, except a complaint with the Judicial Magistrate and "few petitions earlier," i.e. i) CMP (Civil. Misc. Petition) No.7526 of 1991 in CWP No.5075 of 1982, seeking leave of the High Court to "join as a party" in the said petition;
ii) CWP No.16847 of 1991, regarding allotment of House No.1232, Sector-43B, Chandigarh and iii) CWP No.12441 of 1995.
The last petition was also annexed as Annexure P-10 with CWP No.22637 of 2010, a perusal of which shows that in the said Chander Vikas petition, he had sought that the Housing Board be restrained from 2014.01.29 12:33 I attest to the accuracy and integrity of this document Chandigarh LPA No.1969 of 2011 -5- allotting the above mentioned house till the final adjudication of the petitioners' claim for the same, with an interim prayer that the proceedings in CWP No.5075 of 1982 be stayed till the disposal of CWP No.12441 of 1995 itself.
15. It has further been brought to our notice by Mr. Prabhakar, learned counsel for respondent No.3, that the appellant had also filed Consumer Complaint No.33 of 1990, before the Consumer Disputes Redressal Commission, U.T., Chandigarh, praying for allotment of an MIG (Upper) House, at the original price, during pendency of which he had also sought directions for maintaining status quo qua allotment of House No.1232, Sector 43B, Chandigarh, which was granted to him vide order dated 21.01.1991, passed by the Commission.
16. Eventually, the complaint was dismissed on 12.05.1997 by the Commission, upon it being revealed by the Chandigarh Housing Board that the appellants' wife had been allotted a flat in Sector-45A Chandigarh, in the year 1988, with payments being made for the said flat between 1988-90 through the appellant himself and, as such, due to Regualtion 6(1) of the Chandigarh Housing Board (Allotment, Management and Sale of Tenements) Regulations, 1979, the Board could not allot a dwelling unit/flat to him.
17. This judgment of the State Consumer Commission was challenged by the appellant, which challenge was also repelled by the National Consumer Disputes Redressal Commission, vide its order dated 06.05.1999 and subsequently, the SLP of the appellant against the said order was also dismissed by the Hon'ble Supreme Court on 18.07.2008.
Chander Vikas2014.01.29 12:33 I attest to the accuracy and integrity of this document Chandigarh LPA No.1969 of 2011 -6-
18. Other litigation with regard to the said flat was also initiated by the appellant, with no success in his favour.
19. Obviously, the writ petition out of which this appeal arises, was yet another attempt by him to ensure that, since he had not been allotted the house in question, respondent No.3 is also not allotted the same. A criminal complaint against the said respondent is also stated to have been filed by the appellant.
20. No doubt, the prayer in the present appeal and in the writ petition, out of which it arises, is not for allotment of the said house, but only for recalling of the order dated 31.05.2000, passed in CWP No.5075 of 1982 by a learned Single Judge, on the ground that it is vitiated by fraud upon this Court etc., however, very obviously it cannot be said, in any manner whatsoever, that the appellant is a person not interested in the said flat/house, or a chance litigant. Hence, the statement made by him that he is not interested in the property but only has concern about an order having been got passed by respondent No.3 by deceit, was an incorrect statement made before the learned Single Judge, at the time of the hearing of CWP no.22637 of 2010.
21. Further, it seems to us, that after having lost all litigation in respect of the house, right up to the Supreme Court, since he obviously cannot be allotted the said house, possibly his statement to the effect that he is not interested in the property, was on account of the fact that it could not be so allotted to him; however, that statement, further saying that he was only interested in getting the order in CWP No.5075 of 1982 recalled, as he has concern for "purity in life", was not an honest statement.
Chander Vikas2014.01.29 12:33 I attest to the accuracy and integrity of this document Chandigarh LPA No.1969 of 2011 -7-
Therefore, we find that the order of the learned Single Judge, dismissing the petition at the instance of a chance litigant, was based on a statement made by the appellant, which had no basis in fact.
22. However, since the issue of an alleged fraud upon the Court having been played, is the main contention of the appellant, we shall proceed to deal with that. But before that, we have to first deal with the issue of maintainability of a petition for recalling of an order passed in another petition.
23. For that, we shall straightaway, refer to the law laid down on the subject, by reference to a Constitution Bench judgment of the Supreme Court, on the issue.
It has been held in Naresh Shridhar Mirajkar Vs. State of Maharashtra, AIR 1967 SC (1), that no writ would lie against an order passed in another writ petition.
In that case, a 9 Judge Constitution Bench considered the issue and held that no writ petition would lie against an order/judgment passed in another writ petition and that the only remedy to a person aggrieved of such order was by way of an appeal against the order from which he was aggrieved. Though their Lordships did hold the above mainly in relation to the maintainability of a writ petition filed under Article 32 of the Constitution before the Apex Court, also observing therein that the writ jurisdiction under Article 226 is possibly "wider" than that under Article 32, however, the ratio of the law laid down in that that case, in our opinion, leaves no room for doubt that the remedy of a person aggrieved of a judgment/order passed in a petition filed under Article 226, is only by way of appeal against such judgment/order Chander Vikas 2014.01.29 12:33 I attest to the accuracy and integrity of this document Chandigarh LPA No.1969 of 2011 -8- and not by filing another writ petition, impugning the judgment, as was done by the present appellant before us, by filing the petition out of which this appeal arises, seeking remedial action against the judgment passed by a learned Single Judge 11 years earlier, in CWP No.5075 of 1982.
Though, as already stated above, the ratio of the law laid down was answered, to a question framed by their Lordships as to whether the decision of a High Court, vide the judgment impugned in that case, contravened the fundamental rights of the petitioner under Article 19(1) or not, so as to enable him to invoke Article 32 of the Constitution, to our mind, the observations made by the Court, while answering that question, would leave no manner of doubt that a judgment passed in one writ petition cannot be challenged by filing another writ petition against that judgment, even under Article 226.
The following paragraphs of the Constitution Bench judgment can be referred to in this context:-
"38. The argument that the impugned order affects the fundamental rights of the petitioners under Article 19(1), is based on a complete misconception about the true nature and character of judicial process and of judicial decisions. When a Judge deals with matters brought before him for his adjudication, he first decides questions of fact on which the parties are at issue, and then applies the relevant law to the said facts. Whether the findings of fact recorded by the Judge are right or wrong, and whether the conclusion of law drawn by him suffers from any infirmity, can be considered and decided if the party aggrieved by the decision of the Judge takes the matter up before the appellate Court. But it is singularly inappropriate to assume that a judicial decision of the Judge takes the matter up before the appellate Court. But it is singularly inappropriate to assume that judicial decision pronounced by a Judge of competent jurisdiction in or in relation to a matter brought before him for adjudication can affect the Chander Vikas 2014.01.29 12:33 I attest to the accuracy and integrity of this document Chandigarh LPA No.1969 of 2011 -9- fundamental rights of the citizens under Article 19 (1) What the judicial decision purport to do is to decide the controversy between the parties brought before the Court and nothing more. If this basic and essential aspect of the judicial process is borne in mind, it would be plain that the judicial verdict pronounced by Court in or in relation to a matter brought before it for its decision cannot be said to affect the fundamental rights of citizens under Article 19 (1).
"39 .........Just as an order passed by the Court on the merits of the dispute before it can be challenged only in appeal and cannot be said to contravene the fundamental rights of the litigants before the Court so could the impugned order be challenged in appeal under Article 136 of the Constitution, but it cannot be said to affect the fundamental rights of the petitioners. The character of the judicial order remains the same whether it is passed in a matter directly in issue between the parties or is passed incidentally to make the adjudication of the dispute between the parties fair and effective. On this view of the matter, it seems to us that the whole attack against the impugned order based on the assumption that it infringes the petitioners' fundamental rights under Article 19 (1) must fail.
40 to 46 xxx xxx xxx
47. It is thus clear that though the observations made by Frankfurter, J. and Stone, C.J., in (1944) 321 US 1:88 Law Ed 497 (supra), had been cited with approval, the question as to whether a judicial order can attract the jurisdiction of this Court under Articles 32(1) and (2) was not argued and did not fall to be considered at all.
That question became only incidentally relevant in deciding whether the validity of the conviction which was impugned by the appellants in the case of Budhan Choudhry, 1955-1 SCR 1045: (AIR 1955 SC
191) (supra), could be successfully assailed on the ground that the judicial decision under Section 30, Cr.P.C. was capriciously rendered against the appellants. The scope of the jurisdiction of this Court in exercising its writ jurisdiction in relation to orders passed by the High Court was not and could not have been examined, because the matter had come to this Court in appeal under article 132(1); and whether or not judicial decision can be said to affect any fundamental right merely because it incidentally and indirectly may encroach upon such right did not, therefore, call for consideration or decision in that case. In fact, the closing observations made in the judgment themselves indicate that this Court was of the view that if any judicial order was sought to be attacked on the ground that it was inconsistent with Chander Vikas 2014.01.29 12:33 I attest to the accuracy and integrity of this document Chandigarh LPA No.1969 of 2011 -10- Article 14, the proper remedy to challenge such an order would be an appeal or revision as may be provided by law. We are, therefore, not prepared to accept Mr. Setalvad's assumption that the observations on which he bases himself support the proposition that according to this Court, judicial decisions rendered by Courts of competent jurisdiction in or in relation to matters brought before them can be assailed on the ground that they violated Article 14. It may incidentally be pointed out that the decision of the Supreme Court of the United States in (1944) 321 US 1: 88 Law Ed 497 (supra) was itself not concerned with the validity of any Judicial decision at all.
48. On the other hand in Parbhani Transport Co-
operative Society Ltd. v. Regional Transport Authority, Aurangabad, 1960-3 SCR 177: (AIR 1990 SC 801), Sarkar, J. speaking for the Court, has observed that the decision of the Regional Transport Authority which was challenged before the Court may have been right or wrong, but that they were unable to see how that decision could offend Article 14 or any other fundamental right of the petitioner. The learned Judge further observed that the Regional Transport Authority was acting as a quasi judicial body and if it has made any mistake in its decision there are appropriate remedies available to the petitioner for obtaining relief. It cannot complain of a breach of Article 14. It is true that in this case also the larger issue as to whether the orders passed by quasi judicial tribunals can be said to affect Article 14, does not appear to have been fully argued. It is clear that the observations made by this Court in this case unambiguously indicate that it would be inappropriate to suggest that the decision rendered by a judicial tribunal can be described as offending Article
14. at all. It may be a right or wrong decision, and if it is a wrong decision it can be corrected by appeal or revision as may he permitted by law, but it cannot he said per se to contravene Article 14. It is significant that these observations have been made while dealing with a writ petition filed by the petitioner the Parbhani Transport Co- operative Society Ltd. under Article 32; and in so far as the point has been considered and decided the decision is against Mr. Setalvad's contention.
49 & 50 xxx xxx xxx
51. It is plain that if a party desires to challenge any of the Rules framed by this Court in exercise of its powers under Article 145 on the ground that they are invalid, because they illegally contravene his fundamental rights, it would be open to the party to move this Chander Vikas 2014.01.29 12:33 I attest to the accuracy and integrity of this document Chandigarh LPA No.1969 of 2011 -11- Court under Article 32. Such a challenge is not against any decision of this Court, but against a Rule made by it in pursuance of its rule- making power. If the Rule is struck down as it was in the case of Prem Chand Garg, (supra) this Court can review or recall its order passed under the said Rule. Cases in which initial orders of security passed by the Court are later reviewed and the amount of security initially directed is replaced, frequently arise in this Court but they show the exercise of this Court's powers under Article 137 and not under Article 32. Therefore we are not satisfied that Mr. Setalvad is fortified by any judicial decision of this Court in raising the contention that a judicial order passed by the High Court in or in relation to proceedings brought before it for its adjudication, can become the subject-matter of writ jurisdiction of this Court under Article 32(2). In fact, no precedent has been cited before us which would support Mr. Setalvad's claim that a judicial order of the kind with which we are concerned in the present proceedings has ever been attempted to be challenged or has been set aside under Article 32 of the Constitution.
52. In this connection, it is necessary to refer to another aspect of the matter and that has relation to the nature and extent of this Court's jurisdiction to issue writs of certiorari under Article 32(2). Mr. Setalvad has conceded that if a Court of competent jurisdiction makes an order in a proceeding before it, and the order is inter partes, its validity cannot be challenged by invoking the jurisdiction of this Court under Article 32, though the said order may affect the aggrieved party's fundamental rights. His whole argument before us has been that the impugned order affects the fundamental rights of a stranger to the proceedings before the Court: and that, he contends, justifies the petitioners in moving this Court under Article 32. It is necessary to examine the validity of this argument."(emphasis supplied by us in the present judgment).
53. It is well settled that the powers of this Court to issue writs of certiorari under Article 32(2) as well as the powers of the High Courts to issue similar writs under Article 226 are very wide. In fact, the powers of the High Courts under Article 226 are, in a sense, wider than those of this Court, because the exercise of the powers of this Court to issue writs of certiorari are limited to the purposes set out in Article 32(1). The nature and the extent of the writ jurisdiction conferred or the High Courts by Article 226 was considered by this Court as early as 1955 in T. C. Basappa v. T. Nagappa, 1955-1 SCR Chander Vikas 2014.01.29 12:33 I attest to the accuracy and integrity of this document Chandigarh LPA No.1969 of 2011 -12- 250 at pp. 256-8. (AIR 1954 SC 440 at pp 443-44). It would be useful to refer to some of the points elucidated in this judgment. The first point which was made clear by Mukherjea, J., who spoke for the Court, was that-
"in view of the express provisions in our Constitution, we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make all order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law".
One of the essential features of the, writ, according to Mukherjea. J., is "that the control which is exercised through it over judicial or quasi-judicial Tribunals or bodies is not in appellate but supervisory capacity. In granting a writ of certiorari, the superior Court does not exercise the powers of an appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior Tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views to those of the inferior Tribunal. The supervision of the superior Court exercised through writs of certiorari goes on two points, one is the area of inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of law in the course of its exercise. Certiorari may lie and is generally granted when a Court has acted without or in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject-matter of the proceeding or from the absence of some preliminary proceeding or the Court itself may not be legally constituted or suffer from certain disability by reason of extraneous circumstances. When the jurisdiction of the Court depends upon the existence of some collateral fact, it is well settled that the Court cannot by a wrong decision of the fact give its jurisdiction which it would not otherwise possess."
It is in the light of these principles which have been consistently followed by this Court in dealing with the problem Chander Vikas 2014.01.29 12:33 I attest to the accuracy and integrity of this document Chandigarh LPA No.1969 of 2011 -13- relating to the exercise of the writ jurisdiction by the High Court under Article 226 or by this Court under Article 32, that we must now proceed to clear with the point before us.
54. The scope of the jurisdiction of this Court in dealing with writ petitions under Article 32 was examined by a Special Bench of this Court in Smt. Ujjam Bai v. State of Uttar Pradesh 1963-l SCR 778: (AIR 1962 SC 1621). The decision would show that it was common ground before the Court that in three classes of cases a question of the enforcement of the fundamental rights may arise; and if it does arise, an application under Article 32 will lie. These cases are: (1) where action is taken under a statute which is ultra vires the Constitution (2) where the statute is intra vires but the action taken is without jurisdiction; and (3) where the action taken is procedurally ultra vires as where a quasi judicial authority under an obligation to act judicially passes an order in violation of the principles of natural justice.
55. According to the majority decision in the case of Ujjam Bai, 1963-1 SCR 778: (AIR 1962 SC 1621), (supra), it appears that where a quasi judicial authority makes an order in the undoubted exercise of its jurisdiction in pursuance of a provision of law which is intra vires, an error of law or fact committed by that authority cannot be impeached otherwise than on appeal, unless the erroneous determination relates to a matter on which the jurisdiction of the body depends, and the relevant law does not confer on that body jurisdiction to determine that matter.
56. This last category of cases often arise in relation to Tribunals which have been given jurisdiction to try certain issues under certain conditions. It is only if the condition prescribed by the statute is satisfied that the Tribunal derives jurisdiction to clear with the matter. Proof of such a condition is regarded as the proof of a collateral fact, and an erroneous decision of the Tribunal as to the existence of this collateral fact is not regarded as binding on the parties and can be challenged by a writ proceeding under Article 226. But in cases where the Tribunal is given jurisdiction to deal with certain matters, then its decision on those matters cannot be regarded as a decision on collateral facts. This aspect of the matter came to be considered by a Special Bench of this Court in M/s Kamala Mills Ltd. v. State of Bombay, Civil Appeal No. 481 of 1963, dated 23-4-1965:
(AIR 1965 SC 1942), and there it has been held that the appropriate authority set up under the relevant Sales-tax Act had been given Chander Vikas 2014.01.29 12:33 I attest to the accuracy and integrity of this document Chandigarh LPA No.1969 of 2011 -14- jurisdiction to determine the nature of the transaction and to proceed to levy a tax in accordance with its decision on the first issue, and so, the decision of the said authority on the first issue cannot be said to be a decision on a collateral issue, and even if the said issue is erroneously determined by the said authority, the tax levied by it in accordance with its decision cannot be said to be without jurisdiction.
57. In Kunhamina Umma v. Ministry of Rehabilitation, Government of India, New Delhi, 1962-1 SCR 505: (AIR 1962 SC 1616), the petitioner had moved this Court under Article 32 contending that her fundamental rights under Article 19(1) (f) and Article 31 were infringed by the order of the Assistant Custodian which had declared that the husband of the petitioner was an evacuee and his property was evacuee property. The petitioner had appealed to the Deputy Custodian against the said order and when she failed before the Deputy Custodian, she had moved the Custodian-General by revision; but the said revision application also was dismissed. At this stage she moved this Court under Article 32 This Court rejected her petition on the ground that it was incompetent as no question of violation of any fundamental right arose in the case. The decision of the authority of competent jurisdiction it was held, had negatived the existence of the legal right alleged by the petitioner and unless the decision was held to be a nullity or could be otherwise got rid of, the petitioner could not complain of any infringement of a fundamental right. The main questions were whether the petitioner's husband was an evacuee or not, and whether his property was evacuee property or not. The decision of those questions had become final, and no lack of jurisdiction was involved.
58. While referring to the decision of this Court in the case of Smt. Ujjam Bai, 1963-1 SCR 778: (AIR 1962 SC 1621) (supra) we have already indicated that it was not disputed before the Court in that case that where the action taken against a citizen is procedurally ultra vires, the aggrieved party can move this Court under Article 32. As an illustration we may refer to the decision of this Court in Sinha Govindji v Deputy Chief Controller of Imports and Exports 1962- 1 SCR 540. In that case the Court was satisfied that there was a clear violation of the requirements of Clause 10 of the Imports (Control) Order 1955 which embodied the principles of natural justice, and that made the impugned orders constitutionally invalid. That is how the jurisdiction of this Court under Article 32 can be invoked if the Chander Vikas 2014.01.29 12:33 I attest to the accuracy and integrity of this document Chandigarh LPA No.1969 of 2011 -15- impugned order has been passed by adopting a procedure which is ultra vires.
59. We have referred to these decisions to illustrate how the jurisdiction to issue writs of certiorari has been exercised either by the High Courts under Article 226 or by this Court under Article 32. (emphasis supplied in the present judgment). Bearing these principles in mind, let us enquire whether the order impugned in the present proceedings can be said to be amenable to the jurisdiction of this Court under Article 32. We have already seen that the impugned order was passed by the learned Judge after hearing the parties and it was passed presumably because he was satisfied that the ends of justice required that Mr. Goda should be given protection by prohibiting the publication of his evidence in the newspapers during the course of the trial. This matter was directly related to the trial of the suit; and in exercise of his inherent power the learned Judge made the order in the interests of justice. The order in one sense is inter partes because it was passed after hearing arguments on both the sides. In another sense it is not inter partes inasmuch as it prohibits strangers like the petitioners from publishing Mr. Goda's evidence in the newspapers. In fact an order of this kind would always be passed after hearing parties before the Court and would in every case affect the right of strangers like the petitioners, who as Journalists, are interested in publishing Court proceedings in newspapers. Can it be said that there is such a difference between normal orders passed inter partes in judicial proceedings and the present order that it should be open to the strangers who are affected by the order to move this Court under Article 32 ? The order no doubt binds the strangers: but nevertheless it is a judicial order and a person aggrieved by it though a stranger can move this Court by appeal under Article 136 of the Constitution. Principles of Res judicata have been applied by this Court in dealing with petitions filed before this Court under Article 32 in Daryao v State of U. P. 1962-1 SCR 574: (AIR 1961 SC 1457). We apprehend that somewhat similar considerations would apply to the present proceedings. If a judicial order like the one with which we are concerned in the present proceedings made by the High Court binds strangers the strangers may challenge the order by taking appropriate proceedings in appeal under Article 136. It would however not be open to them to invoke the jurisdiction of this Court under Article 32 and contend that a writ of certiorari should be issued in respect of it. The impugned order is passed in exercise of the inherent jurisdiction Chander Vikas 2014.01.29 12:33 I attest to the accuracy and integrity of this document Chandigarh LPA No.1969 of 2011 -16- of the Court and its validity is not open to be challenged by writ proceedings.
60. There is yet another aspect of this matter to which it is necessary to refer. The High Court is a superior Court of Record and under Article 215 shall have all powers of such a Court of record including the power to punish contempt of itself. One distinguishing characteristic of such superior Courts is that they are entitled to consider questions of their jurisdiction raised before them. This question fell to be considered by this Court in Special Reference No. 1 of 1964, 1965-1 SCR 413 at p 499. In that case it was urged before this Court that in granting bail to Keshav Singh, the High Court had exceeded its jurisdiction and as such, the order was a nullity. Rejecting this argument this Court observed that in the case of a superior Court of Record, it is for the Court to consider whether any matter falls within its jurisdiction or not. Unlike a Court of limited jurisdiction, the superior Court is entitled to determine for itself questions about its own jurisdiction. That is why this Court did not accede to the proposition that in passing the order for interim bail, the High Court can be said to have exceeded its jurisdiction with the result that the order in question was null and void. In support of this view, this Court cited a passage from Halsbury's Laws of England where it is observed that "prima facie, no matter is deemed to be beyond the jurisdiction of a superior Court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior Court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular Court".*
24. Then, though again dealing with the jurisdiction of the Apex Court under Article 32, the issue of issuance of a writ of certiorari in relation to an order/judgment passed by an "inferior Court" was also elaborated upon by their Lordships, in Naresh Shridhar Mirajkars' case (supra), as follows:
"62. But apart from this aspect of the matter, we think it would be inappropriate to allow the petitioners to raise the question about the jurisdiction of the High Court to pass the impugned order in proceedings under Article 32 which seek for the issue of a writ of Chander Vikas 2014.01.29 12:33 I attest to the accuracy and integrity of this document Chandigarh LPA No.1969 of 2011 -17- certiorari to correct the said order. If questions about the jurisdiction of superior Courts of plenary jurisdiction to pass orders like the impugned order are allowed to be canvassed in writ proceedings under Article 32, logically, it would be difficult to make a valid distinction between the orders passed by the High Courts inter partes, and those which are not inter partes in the sense that they hind strangers to the proceedings. Therefore, in our opinion, having regard to the fact that the impugned order has been passed by a superior Court of Record in the exercise of its inherent powers, the question about the existence of the said jurisdiction as well as the validity or propriety of the order cannot be raised in writ proceedings taken out by the petitioners for the issue of a writ of certiorari under Article 32.
63. Whilst we are dealing with this aspect of the matter, we may incidentally refer to the relevant observations made by Halsbury on this point. "In the case of judgments of inferior Courts of civil jurisdiction", says Halsbury in the footnote, "it has been suggested that certiorari might be granted to quash them for want of jurisdiction [Kemp v. Balne (1844), I Dow. and L. 885, at p. 887], inasmuch as an error did not lie upon that ground. But there appears to be no reported case in which the judgment of an inferior Court of civil jurisdiction has been quashed on certiorari, either for want of jurisdiction or on any other ground".* The ultimate proposition is set out in the terms: "Certiorari does not lie to quash the judgments of inferior Courts of civil jurisdiction". These observations would indicate that in England the judicial orders passed by civil Courts of plenary jurisdiction in or in relation to matters brought before them are not held to be amenable to the jurisdiction to issue writs of certiorari.
64. In Rex v. Chancellor of St. Edmundsbury and Ipswich, Ex parte. White, 1945-l KB 195 at pp 205-06, the question which arose was whether Certiorari would lie from the Court of King's Bench to an ecclesiastical Court; and the answer rendered by the Court was that certiorari would not lie against the decision of an ecclesiastical Court. In dealing with this question, Wrottesley, L. J. has elaborately considered the history of the writ jurisdiction and has dealt with the question about the meaning of the word "inferior" as applied to Courts of law in England in discussing the problem as to the issue of the writ in regard to decisions of certain Courts "The more this matter was investigated", says Wrottesley. L. J., "the clearer it became Chander Vikas 2014.01.29 12:33 I attest to the accuracy and integrity of this document Chandigarh LPA No.1969 of 2011 -18- that the word "inferior" as applied to Court of law in England had been used with at least two very different meanings. If, as some assert, the question of inferiority; is determined by ascertaining whether the Court in question can be stopped from exceeding its jurisdiction by a writ of prohibition issuing from the King's Bench, then not only the ecclesiastical Court, but also Palatine Courts and Admiralty Courts are inferior Courts. But there is another test, well recognised by lawyers, by which to distinguish a superior from an inferior Court, namely, whether in its proceedings, and in particular in its judgments, it must appear that the Court was acting within its jurisdiction. This is the characteristic of an inferior Court, whereas in the proceedings of a superior Court it will be presumed that it acted within its jurisdiction unless the contrary should appear either on the face of the proceedings or aliunde".
Mr. Sen relied upon this decision to show that even the High Court of Bombay can be said to be an inferior Court for the purpose of exercising jurisdiction by this Court under Article 32(2) to issue a writ of certiorari in respect of the impugned order passed by it. We are unable to see how this decision can support Mr. Sen's contention.
65. We are, therefore, satisfied that so far as the jurisdiction of this Court to issue writs of certiorari is concerned, it is impossible to accept the argument of the petitioners that judicial orders passed by High Courts in or in relation to proceedings pending before them, are amenable to be corrected by exercise of the said jurisdiction. We have no doubt that it would be unreasonable to attempt to rationalise the assumption of jurisdiction by this Court under Article 32 to correct such judicial orders on the fanciful hypothesis that High Courts may pass extravagant orders in or in relation to matters pending before them and that a remedy by way of a writ of certorari should, therefore, be sought for and be deemed to be included within the scope of Article
32. The words used in Article 32 are no doubt wide; but having regard to the considerations which we have set out in the course of this judgment, we are satisfied that the Impugned order cannot be brought within the scope of this Court's jurisdiction to issue a writ of certiorari under Article 32; to hold otherwise would be repugnant to the well recognised limitations within which the Jurisdiction to issue writs of certiorari can be exercised and inconsistent with the uniform trend of this Court's decisions in relation to the said point.
66. The result is, the petitions fail and are dismissed. There would be no order as to costs."
Chander Vikas2014.01.29 12:33 I attest to the accuracy and integrity of this document Chandigarh LPA No.1969 of 2011 -19-
25. Thus, considering the matter, can it be said that this Court, even being a Court of Record, can consider the issue of issuance of a writ of certiorari to quash/recall the judgment passed by another Bench of the same Court, which was exercising the same jurisdiction, under Article 226?
26. To our mind, the answer has to be obviously in the negative, in view of the fact that the judgment of the learned Single Judge passed in CWP No.5075 of 1982, was passed by his Lordship exercising jurisdiction under Article 226 of the Constitution and anybody aggrieved of that judgment would obviously be free to appeal against it, or to file a review application, along with an application before the learned Single Judge to implead himself in the case, if he was affected by the judgment, without having been so impleaded. He could thus, seek a hearing on his grievance against the direction given in the judgment, even in a case where he was not a party.
27. Admittedly, the present appellant before us, as noticed earlier, had moved an application for impleadment before the learned Single Judge in CWP No.5075 of 1982, which was dismissed and that order attained finality one way or the other.
Consequently, it would have been open to him to appeal against the judgment of the learned Single Judge, also if necessary, impugning therein the order by which his application for impleadment had been dismissed.
28. Thus, we find that the petition filed by the present appellant, i.e. CWP No.22637 of 2010, was itself not maintainable and Chander Vikas 2014.01.29 12:33 I attest to the accuracy and integrity of this document Chandigarh LPA No.1969 of 2011 -20- though dismissed on a different ground of non-maintainability, it would have to be dismissed on the ground given above in any case.
Of course, presently, we are dealing with an appeal filed under Clause X of the Letters Patent, however, even presuming that the writ petition (CWP No.22637 of 2010) had itself come up before a Division Bench with the same prayer for recalling the judgment passed by the learned Single Judge in CWP No.5075 of 1982, the petition would still have not been maintainable before the Division Bench, exercising same jurisdiction under Article 226 as that exercised by the learned Single Judge in CWP No.5075 of 1982. The remedy, as already stated, was only by way of, either an appeal against the judgment passed in that petition (CWP No.5075 of 1982) under Clause X of the Letters Patent, or if the petitioner so chose by way of a petition under Article 136 of the Constitution of India before the Hon'ble Supreme Court.
As such, in our opinion, under Article 226 also, this Court cannot issue a writ of certiorari to set aside the order/judgment passed by another writ Court, either in Single, or Division Bench, which had passed such judgment, in exercise of similar jurisdiction under Article 226.
29. Even having held as above, still, in view of the fact that the appellant, in his writ petition, as also in this appeal, has claimed that the judgment dated 31.05.2000, passed in CWP No.5075 of 1982, has been obtained by fraud and it is very well settled now that fraud vitiates everything, we, since an alleged fraud is stated to have been played, feel bound to at least go into the allegation, because, as observed in State of Andhra Pradesh Vs. T. Suryachandra Rao, 2005 (6) SCC Chander Vikas 2014.01.29 12:33 I attest to the accuracy and integrity of this document Chandigarh LPA No.1969 of 2011 -21- 149 and Bank of India and another Vs. Avinash D. Mandivikar and others, (2005) 7 SCC 690, quoting Lord Denning in Lazarus Estates Limited Vs. Beasely (1956) 1 All England Reporter 341, "...no judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything."
30. The appellant, in his writ petition, had alleged that respondent No.3 had been allotted the house in question because:
i) The registration of applications for allotment of various categories of houses opened on 01.12.1977 and closed on 15.01.1978.
As per the appellant, respondent No.3 was appointed as a Law Officer of the Chandigarh Housing Board on 30.10.1979 and was not even a registered applicant for the 1977 scheme, which concluded on 15.01.1978;
ii) In his petition, the petitioner further pointed out that respondent No.3 was not even on the employee rolls of the Board, when he applied for the HIG house and, in any case, as per the reply to the writ petition (CWP No.5075 of 1982), of the respondent-Housing Board, there was no reservation for the Boards' employees, in the allotment of flats advertised and, further, there was no extension of the last date of registration for the employees of the Chandigarh Housing Board. However, even while stating that there was no reservation provided for the employees of the Board even in the advertisement issued in May 1976/1974, it is stated in para 6 of that reply that in the Board meeting held on 03.01.1978, it was decided to provide 2% reservation for the Board employees. Despite having said that, the reply further states that the decision of the Board nowhere discusses that Chander Vikas 2014.01.29 12:33 I attest to the accuracy and integrity of this document Chandigarh LPA No.1969 of 2011 -22- this reservation shall be applicable to the advertisement already issued and will be retrospective in operation and, as such, since the petitioner was staking his claim of reservation in the advertisement that the sale of houses/flats issued on 29.11.1977, the said decision dated 03.01.1978 did not apply to the petitioner (present respondent No.3);
iii) That since 1975 till 1985 at least, respondent No.3 had been actually residing at Patiala, along with his parents, but had been claiming house rent allowance from the Board on account of staying in a rented premises in Chandigarh. The contention was that, not being resident in Chandigarh, respondent No.3 was not eligible for allotment of a house, as per the terms of the allotment scheme of 1977.
The above fact was sought to be proved by the appellant by having annexed letters dated 13.11.1984 and 08.04.1985, the first letter being one addressed to respondent No.3 by the Chief Accounts Officer of the Board, asking for rent receipts for the period in question. Reliance had also been sought to be placed by the appellant on a letter dated 02.06.1993 (Annexure P-9 with the writ petition) from the Life Insurance Corporation of India, addressed to the appellant, stating therein that quarter No.3044, Sector-15D, was never allotted to respondent No.3 and was always in the possession of the LIC and allotted to its own officers.
What the appellant wished to point out was that, as admitted by the Chandigarh Housing Board itself, in its reply to CWP No.5075 of 1982, he (respondent No.3) was not fulfilling the conditions of being a resident of Chandigarh for a period of three years prior to the date of application. (A copy of the amended written statement filed in Chander Vikas 2014.01.29 12:33 I attest to the accuracy and integrity of this document Chandigarh LPA No.1969 of 2011 -23- reply to that petition was also annexed as Annexure P-12 with the writ petition before the learned Single Judge. Para 9 thereof gives the stand of the respondent-Housing Board with regard to the non-eligibility of respondent No.3).
iv) It was further pointed out by the appellant, in his writ petition, that respondent No.3 was not eligible for an HIG house as his income was less than Rs.1500/- per month, which was an essential requirement for allotment of an HIG House, in the 1977 Housing Scheme. His monthly income was stated to be only Rs.906.40, even on the date of his joining the Board on 09.11.1979.
This contention by the appellant has also been obviously taken from the reply of the Board, filed in response to CWP No.5075 of 1982, wherein the Board has stated the above facts in Para 9 thereof.
31. Though all this was pointed out specifically by the appellant in his petition, however, a perusal of the same part of the reply of the Board, also shows that the stand of the Board was that respondent No.3 (petitioner in CWP No.5075 of 1982), had not completed 2 years of his service in the Board as on the date of his application, which was a pre-condition for an employee to get himself registered for an allotment of a house/flat in the reserved category. This contention of the Board was followed by another statement, reiterating that the application of respondent No.3 was in respect of an advertisement in which the last date for receipt of application was 15.01.1978, wherein no reservation for employees of the Board was provided for and, further, that respondent No.3 joined service as a Law Officer in the Board only on 09.11.1979, i.e. almost 2 years after the scheme was advertised. It Chander Vikas 2014.01.29 12:33 I attest to the accuracy and integrity of this document Chandigarh LPA No.1969 of 2011 -24- thereby distinguishes his case from that of the two other person cited by respondent No.3 in his petition (CWP No.5075 of 1982).
32. The appellant further stated that his own claim for allotment of a flat was subsisting at the time when respondent No.3 joined the Board in November 1979. He further stated that the record of the Board was tampered with and despite the complaint of the appellant in that regard, no FIR was got registered by the Board and that even the appellants' bank draft dated 11.11.1992 had gone missing from the record of the Board.
33. Various such allegations were made, to the effect that respondent No.3 is so influential that all the efforts of the appellant in various judicial and semi-judicial fora, including this High Court and the Hon'ble Supreme Court, did not fructify.
34. In our opinion, though the above statement made in para 14 of the appellants' petition, is highly contemptuous, however, we desist from prolonging the matter any further by taking any proceeding against him.
35. He further contended that since he attempted to get an FIR registered by writing to the Sr. Superintendent of Police, U.T., Chandigarh, with regard to documents having disappeared from the official record of the Chandigarh Housing Board and the same resulting in allotting of House No. 1232, Sector- 43B, Chandigarh to the allottee thereof.
36. Allegation further was with regard to some documents going missing from the record of CWP No.5075 of 1982 from this Court Chander Vikas 2014.01.29 12:33 I attest to the accuracy and integrity of this document Chandigarh LPA No.1969 of 2011 -25- also and that, eventually, he was told that the file had been sent for weeding out.
37. The appellant also claimed, in his petition, to be a whistle- blower who had spent expenses of Rs.6 lacs "on this litigation".
38. We have considered the matter and the allegations made and are at a loss to understand as to how any fraud was played upon the Court, resulting in the judgment allowing respondent No.3s' writ petition (CWP No.5075 of 1982).
The pleadings were all before the learned Single Judge who decided CWP No.5075 of 2013, including the amended written statement filed by the Chandigarh Housing Board, in the year 1997 and the same were also duly referred to by the learned Single Judge in his judgment. The Board had resisted respondent No.3s' claim for allotment on all the grounds now being given by the appellant.
39. The appellant had, during pendency of that petition, made an application for impleadment therein which was dismissed and which order admittedly became final.
Whether or not the judgment itself, after having considered all the points raised by respondent No.3 and the reply filed against him by the Chandigarh Housing Board, is correct or otherwise, would have been a matter to have been decided in any appeal at the instance of by the parties therein only and if the petitioner himself was also aggrieved, he could also very well have availed of his remedies against the dismissal of his application for impleadment, as also the judgment itself. Chander Vikas 2014.01.29 12:33 I attest to the accuracy and integrity of this document Chandigarh LPA No.1969 of 2011 -26-
40. Neither the Housing Board, nor the appellant availed of that remedy. Therefore, we can not, obviously, in any manner, interfere in that judgment, when it has not been appealed against before us.
41. The correctness of the judgment or otherwise is, therefore, not something that we are going into. As regards the allegation that it was the result of a fraud played upon the Court, we feel that no such fraud was played, in view of what we have just stated herein above, that all the facts which are contended by the appellant in his writ petition and in his appeal before us, were already stated by the Housing Board in its amended written statement before that Court. As such, all the facts being before the Court that decided the matter, it cannot be said that the judgment was the result of any fraud played on the Court.
42. Yet another prayer made is with regard to staying the weeding out process of orders and record in CWP No.5075 of 1982. Such prayer would also not be maintainable in this appeal or the petition out of which it arises. If the appellant sought, or still seeks, either the stoppage of the weeding out process, or reconstruction of the file, he would obviously be at liberty to move an appropriate application in the said writ petition, which would be decided on its own merits.
43. In view of all that has been discussed herein above, we find no ground to entertain the appeal of the appellant, on any ground and, in view of the fact that the appellant has, firstly, been time and again litigating on the same issue after not having succeeded before the Hon'ble Supreme Court and has yet again chosen to file the present appeal, and further, as he made incorrect statement before the learned Single Judge, to the effect that he is not a person interested in the plot, Chander Vikas 2014.01.29 12:33 I attest to the accuracy and integrity of this document Chandigarh LPA No.1969 of 2011 -27- which is subject matter of the petition filed before the learned Single Judge, we while dismissing the letters patent appeal, impose costs of Rs.50,000/-.
(AMOL RATTAN SINGH)
JUDGE
January 24, 2014 (SATISH KUMAR MITTAL)
vcgarg JUDGE
Note:
1. To be referred to the Reporters or not? Y
2. Whether the judgment should be reported in the Digest? Y Chander Vikas 2014.01.29 12:33 I attest to the accuracy and integrity of this document Chandigarh