Gujarat High Court
Rajendrakumar Prataprai Mehta vs Himanshu Jagdishbhai Gosai & 3 on 2 May, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/15197/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION NO. 5153 of 2015
With
CRIMINAL MISC.APPLICATION (DIRECTION) NO. 15197 of 2016
In SPECIAL CRIMINAL APPLICATION NO. 5153 of 2015
[On note for speaking to minutes of order dated 30/03/2017 in
R/CR.MA/15197/2016 ]
==========================================================
RAJENDRAKUMAR PRATAPRAI MEHTA....Applicant(s)
Versus
HIMANSHU JAGDISHBHAI GOSAI & 3....Respondent(s)
==========================================================
Appearance :
MR BHADRISH S RAJU, ADVOCATE for the Petitioners
MR NJ SHAH, ADD. PUBLIC PROSECUTOR for Respondent No.1
MR KANJIBHAI M BHUT, ADVOCATE for the Respondent No.2
MR.DEVENDRA H PANDYA, ADVOCATE for the Respondent No.2
MR CJ VIN, ADVOCATE for the Respondent(s) No.3
MR HEMANG SHAH, STANDING COUNSEL for Respondent Nos.4-5
==========================================================
CORAM HONOURABLE MS JUSTICE SONIA GOKANI
:
Date : 02/05/2017
ORAL ORDER BELOW OFFICE NOTE
1. By way of present Office Note, the Registry has drawn the attention of this Court towards correction in the "Appearance" portion of the CAV Judgment dated March 30, 2017 whereby the appearance of Criminal Miscellaneous Application has been indicated instead of Special Criminal Page 1 of 4 HC-NIC Page 1 of 69 Created On Tue Aug 15 15:35:52 IST 2017 1 of 69 R/CR.MA/15197/2016 ORDER Application as well as correction in paragraph 47 of the said judgment, whereby there is duplication of four lines in the said paragraph, as also the correction is also required to be made in the causetitle of the judgment, whereby it is indicated as "Criminal Miscellaneous Application (Direction) No.15197 of 2016 in Special Criminal Application No.5153 of 2015 with Special Criminal Application No.5153 of 2015"
instead of "Special Criminal Application No.5153 of 2015 with Criminal Miscellaneous Application (Direction) No.15197 of 2016"
2. Having considered the contents of the Office Note, as also the material on record, it transpires that the said correction deserves to be carried out. The appearance be substituted as under :
"MR BHADRISH S RAJU, ADVOCATE for the Petitioners MR NJ SHAH, ADD. PUBLIC PROSECUTOR for Respondent No.1 MR KANJIBHAI M BHUT, ADVOCATE for the Respondent No.2 MR.DEVENDRA H PANDYA, ADVOCATE for the Respondent No.2 Page 2 of 4 HC-NIC Page 2 of 69 Created On Tue Aug 15 15:35:52 IST 2017 2 of 69 R/CR.MA/15197/2016 ORDER MR CJ VIN, ADVOCATE for the Respondent(s) No.3 MR HEMANG SHAH, STANDING COUNSEL for Respondent Nos.4-5"
3. Further, the following words/lines of paragraph 47 in the said judgment be deleted since there is duplication of the very words/lines in the very paragraph :
"period of EIGHT WEEKS from the date of receipt of a copy of this order. The cheque shall be prepared in the name of the petitioner No.1 and shall be handed over by the Nazir of the Court of"
4. It is also brought to the notice that the title of the judgment is also required to be corrected and instead of "Criminal Miscellaneous Application (Direction) No.15197 of 2016 in Special Criminal Application No.5153 of 2015 with Special Criminal Application No.5153 of 2015", it be indicated as "Special Criminal Application No.5153 of 2015 with Criminal Miscellaneous Application (Direction) No.15197 of 2016 in Special Criminal Application No.5153 of 2015".
Order accordingly. The Note is disposed of. The judgment dated March 30, 2017, be read Page 3 of 4 HC-NIC Page 3 of 69 Created On Tue Aug 15 15:35:52 IST 2017 3 of 69 R/CR.MA/15197/2016 ORDER accordingly.
(MS SONIA GOKANI, J.) Aakar Page 4 of 4 HC-NIC Page 4 of 69 Created On Tue Aug 15 15:35:52 IST 2017 4 of 69 R/CR.MA/15197/2016 CAV JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (DIRECTION) NO. 15197 of 2016 In SPECIAL CRIMINAL APPLICATION NO. 5153 of 2015 With SPECIAL CRIMINAL APPLICATION NO. 5153 of 2015 FOR APPROVAL AND SIGNATURE:
HONOURABLE MS JUSTICE SONIA GOKANI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== RAJENDRAKUMAR PRATAPRAI MEHTA....Applicant(s) Versus HIMANSHU JAGDISHBHAI GOSAI & 3....Respondent(s) ========================================================== Appearance:
MR. KANJIBHAI M BHUT, ADVOCATE for the Applicant(s) No. 1 MR.DEVENDRA H PANDYA, ADVOCATE for the Applicant(s) No. 1 MR CJ VIN, ADVOCATE for the Respondent(s) No. 4 MR. BHADRISH S RAJU, ADVOCATE for the Respondent(s) No. 1 - 2 PUBLIC PROSECUTOR for the Respondent(s) No. 3 ========================================================== CORAM: HONOURABLE MS JUSTICE SONIA GOKANI Date : 30/03/2017 CAV JUDGMENT
1. The petitioners in Special Criminal Application No. 5153 of 2015 have preferred this petition under Articles 14, 19, 21, 226 and 227 of the Constitution of India read with Section Page 1 of 65 HC-NIC Page 5 of 69 Created On Tue Aug 15 15:35:52 IST 2017
5 of 69 R/CR.MA/15197/2016 CAV JUDGMENT 482 of the Code of Criminal Procedure, 1973 (for short, 'the Code'), for payment of compensation to them for the loss of interest and other costs due to non-compliance of the directions of this Court.
2. The facts in capsulized form are as follows:
The petitioners are the original accused in Criminal Inquiry Case No. 4 of 2005, registered with DCB Police Station, Surat. The petitioners preferred Criminal Misc. Application No. 2697 of 2005 for quashing the said criminal case. On 10.08.2005, this Court granted the interim relief in favour of the petitioners, subject to the petitioners depositing an amount of Rs.14,25,000/- with the trial Court, i.e. with Respondent Nos. 2 and 3, herein. Respondent Nos. 2 and 3 were also directed to invest the same in any nationalized bank in Fixed Deposits Receipts (for short, 'FDR'). The order dated 10.08.2005 passed by this Court (Coram: Jayant Patel, J.) deserves reproduction at this stage:
"
1.Heard Mr.Raju, Ld.counsel for the petitioner and Mr.Gohil, Ld.APP for the State, Mr.Munshi for the respondent No.2-original complainant.
2.Prima facie, it appears that it Page 2 of 65 HC-NIC Page 6 of 69 Created On Tue Aug 15 15:35:52 IST 2017 6 of 69 R/CR.MA/15197/2016 CAV JUDGMENT is not the case of the original complainant that the signature was forged or that there was any bogus document or that any other document is fabricated and, on the contrary, the complaint itself shows that there was power of attorney executed and the document executed shows that the signature is in the capacity as Power of Attorney and, therefore, prima facie, it does not make out a case for fabrication of any document or forgery. However, so far as the allegations made in the complaint for demand of consideration received by the Power of Attorney-holder to be accounted to the original complainant as principal is concerned, it is the case petitioner that the amount is paid and there are witnesses for such purpose. Still, however, the petitioner has shown willingness to deposit the full amount of Rs.14,25,000/-to show the bonafides of the petitioner without admitting the guilt.
Mr.Gohil, Ld.APP for the State, under the instructions of Mr.J.A.Patel, PSI, stated that during the course of investigation it has transpired that the amount of sale deed is already paid by the petitioner to the principal in the presence of witnesses whose statements are recorded. Mr.Munshi, Ld.advocate appearing for the original complainant submitted that even if the petitioner is ready to deposit the amount of Page 3 of 65 HC-NIC Page 7 of 69 Created On Tue Aug 15 15:35:52 IST 2017 7 of 69 R/CR.MA/15197/2016 CAV JUDGMENT full consideration the original complainant is not agreeable for staying of the proceedings of investigation.
3.It, prima facie, appears that if as per the investigation papers the consideration is paid by the petitioner to the principal and there are witnesses for such purpose, the case, as stated in the complaint, can not be accepted on its face value.
Further, as recorded herein
above, on behalf of the
petitioner the willingness is shown to deposit the entire amount of the sale consideration with this court. So far as other charges of forgery are concerned, as recorded herein above, there are no prima facie ingredients qua such offence.
Hence, following order:
(i) Rule returnable on
28.9.2005.
(ii) Interim relief in terms of para 17(d) on condition that the petitioner deposits the full amount of sale consideration of Rs.14,25,000/- with the trial court within a period of 10 days from today without prejudice to his rights and contentions in the petition and without admitting the guilt. The trial court shall invest the said amount with any nationalised bank in FD Receipts and such deposit of amount by the petitioner shall be subject to further orders which may be passed by this court at the time of final hearing of this petition."
Page 4 of 65HC-NIC Page 8 of 69 Created On Tue Aug 15 15:35:52 IST 2017 8 of 69 R/CR.MA/15197/2016 CAV JUDGMENT
3. The petitioners approached Respondent Nos. 2 and 3 to deposit the said amount. However, they denied to do so, and therefore, the petitioners approached this Court by way of Criminal Misc. Application No. 9734 of 2005 in Criminal Misc. Application No. 2697 of 2005. This Court (Coram: Jayant Patel,J.), therefore, vide its order dated 26.08.2005 directed Respondent Nos. 2, namely the learned Chief Judicial Magistrate, Surat, to accept the amount of Rs.14,25,000/-, which was to be tendered by the petitioners on or before 05.09.2005 with a clarification that the amount to be deposited in FDR in pursuance of the order dated 10.08.2005 passed in Criminal Misc. Application No. 2697 of 2005.
The order dated 26.08.2005 would deserve reproduction at this stage:
"Upon hearing Mr.Popat, learned Counsel for the petitioners, Mr.Gohil, learned APP and Mr.Munshi, learned Counsel for the original complainant, it appears that there is no dispute that this Court has already passed the order on 10.8.2005 and, therefore, the trial Court had to accept the amount. However, since the amount is not accepted, it is directed that the trial Court namely; the Court of Page 5 of 65 HC-NIC Page 9 of 69 Created On Tue Aug 15 15:35:52 IST 2017 9 of 69 R/CR.MA/15197/2016 CAV JUDGMENT Chief Judicial Magistrate at Surat shall accept the amount of deposit of Rs.14,25,000/- which may be tendered by the petitioners on or before 5.9.2005, in pursuance of the order dated 10.8.2005 passed by this Court in Criminal Misc. Application No.2697 of 2005 and shall be invested as per the order passed by this Court in the said matter.
The criminal application is allowed to the aforesaid extent. Direct service is permitted."
4. The quashing petition preferred by the petitioners resulted in their favour and the inquiry being Criminal Inquiry Case No. 4 of 2005 registered with DCB Police Station, Surat, was quashed and set aside by this Court vide its judgment and order dated 16.03.2009.
5. The Respondents, therefore, preferred appeal being Special Leave Petition (Criminal) No. 6950 of 2009 before the Apex Court. In that matter, notice was issued by the Apex Court on 11.09.2009, while ordering as under:
"...In the meantime the amount of Rs.14,25,000/- deposited by Respondent Nos. 1 and 2 in terms of the order dated 10th August, 2005 passed in Cri. Misc. Application No. 2697 of 2005 in the Court of the Chief Judicial Magistrate, Surat shall not be refunded without the leave of this Court. "Page 6 of 65
HC-NIC Page 10 of 69 Created On Tue Aug 15 15:35:52 IST 2017 10 of 69 R/CR.MA/15197/2016 CAV JUDGMENT
6. Before such a notice issued by the Apex Court was served on the petitioners, an application being Criminal Misc. Application No. 8956 of 2009 was filed by them for refund of the aforesaid amount. This Court (Coram: Akil Kureshi, J.) vide order dated 15.12.2009 allowed the said application and directed the trial Court to refund the amount with the interest that may have accrued thereon, which reads thus:
"The petitioners pray for a
direction of refund of Rs.
14,25,000/pursuant to order dated 10.8.2005 passed by this Court in Criminal Misc. Application No.2697/2005.
Criminal Misc. Application No.
2697/2005 was filed by the
petitioners herein for quashing of the complaint against them. Learned Single Judge of this Court on 10.8.2005, made following observations :
"2. Prima facie, it appears that it is not the case of the original complainant that the signature was forged or that there was any bogus document or that any other document is fabricated and, on the contrary, the complaint itself shows that there was power of attorney executed and the document executed shows that the signature is in the capacity as Power of Attorney and, therefore, Page 7 of 65 HC-NIC Page 11 of 69 Created On Tue Aug 15 15:35:52 IST 2017
11 of 69 R/CR.MA/15197/2016 CAV JUDGMENT prima facie, it does not make out a case for fabrication of any document or forgery.
However, so far as the allegations made in the complaint for demand of consideration received by the Power of Attorneyholder to be for staying of the proceedings of investigation."
Subsequently, the quashing petition came to be finally disposed of by judgement dated 26.3.2009. Learned Judge was pleased to quash the complaint and allow the petition. The petitioners have therefore, approached the Court seeking refund of Rs. 14,25,000/deposited before the Court.
I find substance in the prayer. Said amount was directed to be deposited on willingness shown by the petitioners and to ascertain their bona fide. However, same was not ordered to be adjusted for any purpose. Subsequently when the complaint itself has been quashed by allowing Criminal Misc. Application, there is no further purpose of retaining the said amount.
Consequently, said amount Rs.
14,25,000/shall be paid over to the petitioner through Account Payee cheque after due verification by the concerned Court along with accrued interest.
Application is disposed of accordingly."
Page 8 of 65HC-NIC Page 12 of 69 Created On Tue Aug 15 15:35:52 IST 2017 12 of 69 R/CR.MA/15197/2016 CAV JUDGMENT Eventually, Special Leave Petition came to be dismissed by the Apex Court (Coram: Mr. H.L. Dattu & Ms. Ranjana Prakash Desai, J. J.) vide order dated 12.11.2013.
"Upon hearing the counsel the Court made the following O R D E R Dismissed."
7. The petitioners, therefore, preferred an application being Criminal Misc. Application No.5386 of 2014 in Criminal Misc. Application No. 2697 of 2005 in wake of the dismissal of the SLP by the Apex Court. The Court, even otherwise, had no reason to withhold such an amount, which had been deposited with Respondent Nos. 2 and 3. This Court (Coram: Mr. Akil Kureshi, J.), therefore, passed the following order on 18.07.2014:
"Applicants-original petitioners seek refund of an amount of Rs.14.25 lacs deposited by them with the Trial Court pursuant to the order dated 10.8.2005 passed by this Court. The applicants had filed a petition for quashing criminal proceedings instituted by the father of respondent No.2. In such petition on 10.8.2005, learned Single Judge while admitting the petition and Page 9 of 65 HC-NIC Page 13 of 69 Created On Tue Aug 15 15:35:52 IST 2017 13 of 69 R/CR.MA/15197/2016 CAV JUDGMENT granting interim relief directed the applicants to deposit the full amount of consideration which came to Rs.14.25 lacs. It is stated that such amount was also deposited. Subsequently, by judgment dated 26.3.2009, in the said petition, learned Single Judge of this Court allowed the petition and quashed the complaint against the applicants. The applicants, therefore, filed Criminal Misc. Application No.8956 of 2009 seeking refund of the said amount of Rs.14.25 lacs. On such application on 15.12.2009, following order was passed:
I find substance in the prayer. Said amount was directed to be deposited on willingness shown by the petitioners and to ascertain their bona fide. However, same was not ordered to be adjusted for any purpose. Subsequently when the complaint itself has been quashed by allowing Criminal Misc. Application, there is no further purpose of retaining the said amount. Consequently, said amount Rs. 14,25,000/- shall be paid over to the petitioner through Account Payee cheque after due verification by the concerned Court along with accrued interest.
It appears that when this order was passed, neither side was about the pending SLP before the Supreme court filed by the complainant in which on 11.9.2009, the Supreme Court had passed following interim order:
In the meantime, the amount of Page 10 of 65 HC-NIC Page 14 of 69 Created On Tue Aug 15 15:35:52 IST 2017 14 of 69 R/CR.MA/15197/2016 CAV JUDGMENT Rs.14,25,000/- deposited by
respondent Nos.1 & 2 in terms of the order dated 10th August 2005, passed in Cri. Misc. Application No.2697 of 2005 in the Court of Chief Judicial Magistrate, Surat shall not be refunded without the leave of this Court.
In view of such order, the order dated 15.12.2009 for refund of the amount could not be implemented. Subsequently, the Supreme Court dismissed the appeal as well by order dated 12.11.2013. The applicants have therefore filed this petition for the above noted relief.
Now that the appeal before the Supreme Court also has been dismissed, there can be no reason for withholding such amount. The said amount therefore shall be released in the same terms and conditions as contained in the order dated 15.12.2009, relevant portion of which is reproduced hereinabove. Needless to state that nothing stated in this order would prejudice either side in the civil proceedings stated to have been instituted by the father of respondent No.2 and which are pending.
Rule is made absolute accordingly.
Direct service is permitted."
8. Thus, this Court reiterated in its order dated 18.07.2014 that the release of the amount of Rs.14.25/- lakh shall be on the same terms and Page 11 of 65 HC-NIC Page 15 of 69 Created On Tue Aug 15 15:35:52 IST 2017 15 of 69 R/CR.MA/15197/2016 CAV JUDGMENT conditions, as contained in the order of this Court dated 15.12.2009.
9. It is the grievance of the petitioners that despite the clear and unequivocal directions issued by this Court in Criminal Misc. Application No. 2697 of 2005 and also in Criminal Misc. Application No. 9734 of 2005, Respondent Nos. 2 and 3 did not invest the amount of Rs.14.25/- lakh in FDR. According to the petitioners, they were shocked to realize that Respondent Nos. 2 and 3, in blatant violation of the orders of this Court failed to deposit the said amount in FDR.
10. Due to non-compliance with the orders of this Court dated 10.08.2005 and 26.08.2005, the petitioners preferred Miscellaneous Civil Application (Contempt) No. 66 of 2015, under the provisions of the Contempt of Courts Act, 1971. The same came to be disposed of by this Court (Coram: K.S. Jhaveri and A.G. Uraizee, J.J.) by permitting the petitioner to prefer an execution petition.
"Learned counsel for the petitioner seeks permission to withdraw the present application with a view to prefer the execution petition. Permission granted. Application stands disposed of accordingly."Page 12 of 65
HC-NIC Page 16 of 69 Created On Tue Aug 15 15:35:52 IST 2017 16 of 69 R/CR.MA/15197/2016 CAV JUDGMENT
11. In the present petition, chief grievance of the petitioners is that Respondent Nos. 2 and 3 failed to discharge their duties. The amount deposited by the petitioners with the trial Court has not gained any interest for more than 10 years. The order of this Court is not implemented, causing tremendous loss and prejudice to the petitioners. It is, therefore, urged that no litigant should be made to suffer due to a mistake of the Court and it would be the responsibility of the State to compensate and grant any loss of interest, Respondent Nos. 2 and 3 shall have to make good the same or alternatively, the State of Gujarat Respondent No.1 shall do that. The petitioners have, therefore, approached this Court seeking following reliefs:
"12. ...
(a) To allow this petition.(b) To direct the respondent Nos. 2
and 3 to compensate the petitioners for the loss of interest and other costs sustained due to non- compliance of the directions and order of this Hon'ble Court being order dated 10.08.2005 passed in Criminal Misc. Application No. 2697/2005 and order dated 26.08.2005 passed in Criminal Misc. Application No. 9374/2005 in Criminal Misc.Page 13 of 65
HC-NIC Page 17 of 69 Created On Tue Aug 15 15:35:52 IST 2017 17 of 69 R/CR.MA/15197/2016 CAV JUDGMENT Application No.2697/2005 for investing the deposit of amount by the petitioners with any Nationalized Bank in Fixed Deposit receipts.
(c) In the alternative, to direct the respondent Nos. 1 i.e. State of Gujarat to compensate the petitioners for the loss of interest and other costs sustained due to non-compliance of the directions and order of this Hon'ble Court being order dated 10.08.2005 passed in Criminal Misc. Application No. 2697/2005 and order dated 26.08.2005 passed in Criminal Misc. Application No. 9374/2005 in Criminal Misc.
Application No. 2697/2005 for investing the deposit of amount by the petitioners with any Nationalized Bank in Fixed Deposit receipts.
(d) To further direct that the petitioners be reimbursed or be granted interest amount at the rate of 9% or at the rate of interest applicable for nationalized bank FDs as on August 2005 whichever is higher, on the deposited amount of Rs.14,25,000/- from August 2005 till the date of payment.
(e) ..."
12. Affidavit-in-reply on behalf of
Respondent No.2 , the then Principal Sr. Civil Judge, Valsad, is filed, wherein, it is objected that the petitioners cannot invoke the jurisdiction under Article 226 and 227 of the Page 14 of 65 HC-NIC Page 18 of 69 Created On Tue Aug 15 15:35:52 IST 2017 18 of 69 R/CR.MA/15197/2016 CAV JUDGMENT Constitution to enforce the order of this Court. It, therefore, deserves to be dismissed in limine. It is also their say that for non- compliance of the administrative directions issued by the Courts, where, Respondent No.2 was not a party, the reliefs cannot be granted against Respondent No.2. The directions are neither judicial nor equitable. They cannot ask for the reliefs under Articles, 14, 19, 21, 226 and 227 of the Constitution read with Section 482 of the Code of Criminal Procedure, 1973 (for short, 'the Code'). Since, none of the rights guaranteed under Articles 14, 19, 21, 226 and 227 of the Constitution of India has been violated, the powers of the High Court of issuing a writ under Article 226 of the Constitution can be extended to all such cases, where, the breach of fundamental rights is alleged. It is, further, urged that this Court cannot act as an Execution Court, while exercising jurisdiction under Article 226 of the Constitution. The petitioners having not exhausted the alternative remedy, no interference is desirable. With no judicial proceedings initiated nor having been concluded, the right to exercise supervisory jurisdiction under Article 227 of the Constitution and the extraordinary powers under Section 482 of the Code are not to be exercised in absence of any extraordinary circumstances.
Page 15 of 65HC-NIC Page 19 of 69 Created On Tue Aug 15 15:35:52 IST 2017 19 of 69 R/CR.MA/15197/2016 CAV JUDGMENT 12.1 Respondent No.2, further, urged that he was serving as the Chief Judicial Magistrate, Surat, since 2003. The writ directing the Court of the Chief Judicial Magistrate, Surat, to deposit Rs.14.25/- lakh was received on 30.08.2005, and therefore, he had passed order to place the said amount into the Criminal Court deposit. Respondent No.3, therefore, deposited the said amount in the account of Criminal Court on 02.09.2005. On 02.09.2005, the writ of this Court in Criminal Misc. Application No. 2697 of 2005 was placed, which was seen by him and an endorsement was put up by Respondent No.3 that the writ is received after the amount of Rs.14.25/- lakh was deposited with the Criminal Court, on which he had put his signature. Respondent No.3 was discharging his duties, in his capacity as a responsible officer of the Nazir department and he had to do the needful in view of the order passed by the High Court. However, Respondent No.3 failed to discharge his duties, for which Respondent No.2 cannot be held responsible.
12.2 He, further, urged that the Presiding Officers of the Court are protected under the Judicial Officers' Protection Act, 1850 so also under the Judges Protection Act, 1985. He has Page 16 of 65 HC-NIC Page 20 of 69 Created On Tue Aug 15 15:35:52 IST 2017 20 of 69 R/CR.MA/15197/2016 CAV JUDGMENT relied upon Sections 1, 3 and 4 thereof to urge that the conjoint reading of the same would make it clear that the Judicial Officers acting in their judicial capacity are protected in respect of any act done by them in discharge of their official duties, provided, he, in good faith, believed that he has jurisdiction to do so. He, further, contended that Section 3, thereof, provides complete immunity and protection. Reliance is also placed on the judgment of "N.V. SHAMSUNDER, CIVIL JUDGE (SR. DN.) VS. SAVITABEN WD/O. SAMBHIRMAL SINGHVI", 2006 (5) Maharashtra LJ 639. It is urged that after a period of 10 years of his retirement, nothing should touch him for any inaction on the part of Respondent No.3.
13. Respondent No.3, the then Registrar Civil Branch, District Court, urged that he was not a party to the proceedings in which the order had been passed. He was also not a Judicial Officer and he was discharging duties as Nazir at Criminal Court, Surat, when the Administrative Head was Respondent No.2. Since, Respondent No.2 did not ask him to deposit the amount in FDR, despite his being aware that the amount was to be deposited in FDR, he was to follow the orders of his superior. He had reported to the High Court on 20.09.2005 in this regard. The report and the order have been placed on record, which indicate Page 17 of 65 HC-NIC Page 21 of 69 Created On Tue Aug 15 15:35:52 IST 2017 21 of 69 R/CR.MA/15197/2016 CAV JUDGMENT that the amount of Rs.14.25/- lakh was accepted and deposited in Criminal Court deposit. He urged that there being no indication of FDR by respondent No.2, he followed the instructions of his superior.
13.1 It is, further, urged that the Division Bench of this Court permitted the petitioner to file execution petition and this Court may not exercise jurisdiction under Articles 226 and 227 of the Constitution, as none of the fundamental rights of the petitioners has been breached.
14. Respondent No.4-Mr. R.L. Patel, present Nazir, also filed his affidavit-in-reply, contending inter alia that the entire responsibility is that of Respondent No.2, who failed to appreciate the order of the High Court in its true perspective. It is also his say that even after passing the order dated 02.09.2005 by this Court and receipt of the writ of the same, the Respondent No.2 ought to have called the learned Advocates of both the sides and could have apprised them of receipt of Criminal Misc. Application No. 2697 of 2005 and thereby, needed to have passed an appropriate order. However, Respondent No.2 did not do anything of that sort and he also did not rectify his order. He was prematurely retired on 19.05.2009 because of his Page 18 of 65 HC-NIC Page 22 of 69 Created On Tue Aug 15 15:35:52 IST 2017 22 of 69 R/CR.MA/15197/2016 CAV JUDGMENT performance was not found up to the mark. Furthermore, the responsibility cannot be fastened on the Chief Judicial Magistrate Court and so far as the alternative prayer for payment of compensation by the State would mean utilizing the public exchequer, which can not be permitted for a clear fault on the part of Respondent No.2, and hence, the Court of the Chief Judicial Magistrate, Surat, be not made liable for the same.
15. It is necessary at this stage to make a reference to the Criminal Misc. Application No. 15197 of 2016, preferred by the original Respondent No.2, who was serving as the Judicial Officer, Surat, at the relevant point of time. He has claimed the protection under the Judges' Protection Act, 1985, and the Judicial Officers' Protection Act, 1850. It is his say that the applicant ought not to have joined Respondent No.2 who was discharging his duties as Judicial Officer at that time and if there is an adverse order passed, the party ought to have challenged the same before the Higher Court. If there was dissatisfaction with order of the simple deposit, an application ought to have been made by him for the fixed deposit receipt (FDR). After the application for placing the said amount in FDR was rejected, petitioners did not move the higher Page 19 of 65 HC-NIC Page 23 of 69 Created On Tue Aug 15 15:35:52 IST 2017 23 of 69 R/CR.MA/15197/2016 CAV JUDGMENT Court.
When the second writ was received, he ought to have moved the Court concerned again so that the appropriate orders could have been passed. He since slept over his rights, has no business to join respondent No.2, and therefore, by rejecting this application heavy costs should be imposed on him and he also sought discharge from the main proceedings being Special Criminal Application No. 5153 of 2015.
16. Both, the main petition and this application have been heard together. Over and above the oral submissions, written submissions have also been made by all the parties.
16.1 The original petitioners have urged that there is no criminal proceedings nor the respondent No.2 has been impleaded as an accused and therefore, the question of discharge does not arise. It is further their say that the provisions of Sections 3 (1) of the Judges Protection Act, 1985, provides for the protection only in discharge of his judicial or official duty. Section 3(2) of the said Act provides that the High Court is assigned the powers to undertake such actions whether by way of civil, criminal or departmental proceedings against the Page 20 of 65 HC-NIC Page 24 of 69 Created On Tue Aug 15 15:35:52 IST 2017 24 of 69 R/CR.MA/15197/2016 CAV JUDGMENT person who is or was a judge. Under Section 1 of the Judicial Officers Protection Act, 1850, provides protection to the judges who acted judicially of the order passed by them, in discharge of their judicial duties. This covers only liability under the civil law. Respondent Nos. 1 and 2 who were concerned about the loss of interest and other costs upon non-compliance of the order of this Court. Therefore, the prayer in the main petition is to the effect that by allowing it against all the respondents being the citizens of this Country the petitioners have invoked the writ jurisdiction. The law is settled that the litigant for violation of any other right also can invoke both the civil and criminal jurisdiction. Moreover, the law does not debar any party who is necessary and proper. It covers the act committed by the judges in judicial capacity and not for passing an administrative order on administrative side. It is also the say of the petitioner that writ was received by the learned Sessions Judge, Surat, on 01.09.2005 and this was forwarded to Respondent No.1 who received it on 02.09.2005 and also had signed thereon. According to petitioners, nothing could have been done at their end as there was no direct service granted by the High Court of the first order. There were binding directions of the High Court and it was incumbent upon the Page 21 of 65 HC-NIC Page 25 of 69 Created On Tue Aug 15 15:35:52 IST 2017 25 of 69 R/CR.MA/15197/2016 CAV JUDGMENT respondent No.2 to immediately place the amount deposited in FDR. There was no requirement of the petitioners to make any separate application.
17. In reply to the written-submissions of Respondent No.1, Respondent No.2 in his written submissions stated that in the petition for contempt namely Misc. Civil Application (Contempt) No. 66/2015, permission was sought to be withdrawn with a view to file execution petition and the present petition is by no means a execution petition. There is no question of exercising either plenary jurisdiction under Article 226 or supervisory jurisdiction under Article 227 of the Constitution of India nor is there any scope of exercising powers under Section 482 of the Code. The petitioners have not opted to file execution petition. The petitioners instead chose to file Special Criminal Application No. 5153 of 2015, which is untenable under the law. The petition has been filed for violation of the fundamental rights and not for scandalizing the Court under the Contempt of Courts Act. A petition for violation of fundamental right is surely maintainable but the petitioner has already chosen the remedy by way of execution petition before the Division Bench therefore on the humanitarian ground also it is not tenable.
Page 22 of 65HC-NIC Page 26 of 69 Created On Tue Aug 15 15:35:52 IST 2017 26 of 69 R/CR.MA/15197/2016 CAV JUDGMENT 17.1 It is further their say that the contention of petitioners that Respondent No.2 did not pass any order on judicial side but on administrative side is the contention raised for the first time and is nothing but an eye-wash. Reliance in this regard is placed on decision of the Apex Court in 'RACHAPUDI SUBBA RAO VS. THE ADVOCATE GENERAL, STATE OF AP', AIR 1981 SC 755. According to Respondent No.2 in the contempt petition, certain allegations were made in respect of discharging of duties by the respondent No.2 undermining the dignity and authority of the Court. The Division Bench was not impressed by any "wild and reckless allegations". The money was lying with the trial Court and it did not gain any interest for almost 10 years. There were the very recital in the contempt petition which was challenged on 23.12.2014 and was withdrawn on 15.01.2015 within a very short span of three weeks without even issuance of notice to any alleged contemptors. This remedy according to Respondent No.2 is not available to the petitioners.
18. Respondent No.4 made written submissions to emphasize on the aspect that on 02.09.2005, an application was submitted to the petitioners for depositing the amount. The Nazir placed the Page 23 of 65 HC-NIC Page 27 of 69 Created On Tue Aug 15 15:35:52 IST 2017 27 of 69 R/CR.MA/15197/2016 CAV JUDGMENT details and Respondent No.2 mis-read the orders of this Court on 26.08.2005. Therefore it was mandatory for Respondent No.2 to follow the same. After receiving the writ of the order dated 10.08.2005 at 01:00 p.m. respondent No.2 called the advocates and ought to have informed them of receipt of writ of the order dated 10.08.2005. Respondent No.2 while discharging his duties on administrative side was empowered to recall his order dated 02.09.2005 and pass appropriate orders for depositing the amount of RS.14.25/- lakh as FDR with any nationalized bank. He however did not do so. The order which was passed on 02.09.2005 was an administrative order and therefore, Respondent No.2 shall not be entitled to invoke the protection under the Judicial Officers' Protection Act, 1850. The interest amount approximately would be Rs.12.15/- lakh. The total amount thus would be Rs.14.25/ lakh and interest component. It is a classic case where respondent No.2 would be directly responsible for his folly.
19. The High Court could have undertaken the process of departmental proceedings so as to fix the responsibility. The High Court as well as the State Government would be hit by Rule 24(2)(b) of the Gujarat Civil Services (Pension) Rules which lays down a restriction that no departmental Page 24 of 65 HC-NIC Page 28 of 69 Created On Tue Aug 15 15:35:52 IST 2017 28 of 69 R/CR.MA/15197/2016 CAV JUDGMENT proceedings shall be initiated without the sanction of Hon'ble the Governor and it shall also not be initiated in respect of any event which took place before about four years from the date of superannuation. The incident alleged is of the year 2005 and the respondent No.2 was compulsorily retired from the services and therefore it must be nearly 8 years since Respondent No.2 retried from the service as a judicial officer and therefore, neither the High Court nor the State Government shall be permitted to initiate any proceedings for recovery. It further urged that Rule 189 of the Gujarat High Court Rules, 1993 provides that every order passed under Article 226 of the Constitution of India including an order as to costs shall be drawn as if it is a decree and the same shall be executable in the manner provided under the Code of Civil Procedure, 1908. Rule 190 of the Gujarat High Court Rules, 1993, prescribes execution of the decree on original side. It was therefore, urged that the order passed by this Court should be in the form of a decree in favour of the petitioners which should be enforceable in the subordinate Court as a money decree against Respondent No.2. It is also urged that money of public exchequer cannot be utilized to correct the wrong committed by Respondent No.2 in his individual capacity and Respondent No.2 should be Page 25 of 65 HC-NIC Page 29 of 69 Created On Tue Aug 15 15:35:52 IST 2017 29 of 69 R/CR.MA/15197/2016 CAV JUDGMENT made liable to pay the same from his own pocket.
20. In reply to the submissions of Respondent No.4, Respondent No.2 has urged that all the questions are to be decided in Special Civil Suit after recording evidence of the concerned parties and after giving opportunity of cross-examination etc. wherein the veracity of the witnesses could be decided. The present proceedings are wholly misconceived. It is urged that the order of Respondent No.2 is wrongly termed as an administrative order to deny him the protection that he would get under the Judicial Officers' Protection Act, 1850. He was working in his individual capacity and it is a trite law that no judge or magistrate functions in their individual capacity while discharging duties as a judge or a magistrate. Even if the function was administrative, the Nazir of the Court was to handle money matter as per Paragraphs 559, 668 and 672 of the Criminal Manual. In compliance with the second writ issued by the High Court for investing money in FDR, petitioners could have obtained an administrative order from Respondent No.2. It is further the say of Respondent No.2 that neither the learned Advocate nor the petitioners submitted any application after the first writ was received and that the party was well aware that there was no direction for Page 26 of 65 HC-NIC Page 30 of 69 Created On Tue Aug 15 15:35:52 IST 2017 30 of 69 R/CR.MA/15197/2016 CAV JUDGMENT investing the amount in FDR. It is gross negligence on the part of the petitioners. It is his say that he had been made to retire and not compulsorily. Ministerial acts are to be performed by the Nazir and therefore, he needed to obtain the signature of Respondent No.2 and could have taken directions for FDR. It is urged that there was no intention or aim on his part to cause any loss as he was discharging his duties under the care and custody of the High Court. It is further his say that judicial functions are required to be performed while administrative and ministerial functions are to be performed by the authorized subordinates. In the present matter according the Respondent the administrative / ministerial functions were delegated. i.e. all the account matters are being carried out by the Nazir in each and every court of the Gujarat State. According to the Respondent the petitioners never approached the High Court on administrative side for redressal of their grievance and they ought to have obtained money decree under Section 80 of the CPC.
21. Following questions arise for consideration before this Court in wake of the averments set out in the petition and the rival contentions raised:
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(i) Whether this petition under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code for payment of compensation to the petitioner for loss of interest and other costs sustained due to non-compliance of the order of this Court is maintainable?
(ii) Whether such a petition is maintainable in wake of the order of the Division Bench of this Court passed in Contempt Petition being Miscellaneous Civil Application (Contempt) No. 66 of 2015 under the provisions of the Contempt of Courts Act, 1971?
(iii) Whether Respondent No.2 is to be granted immunity for having passed an order while discharging duties as a judicial officer?
22. A conjoint discussion of the first and second points would be necessitated at the outset. The uncontroverted facts which emerge are that the petitioner had approached this Court by preferring Criminal Misc. Application No. 2696 of Page 28 of 65 HC-NIC Page 32 of 69 Created On Tue Aug 15 15:35:52 IST 2017 32 of 69 R/CR.MA/15197/2016 CAV JUDGMENT 2005 under Section 482 of the Code for quashing the complaint being Inquiry Criminal Case No. 4 of 2005 registered with DCB Police Station, Surat, for the offence punishable be under Sections 465, 467, 468, 471, 420, 114 read with 120-B of the Indian Penal Code. They also challenged the order passed by the learned Judicial Magistrate, Surat, on 02.02.2005 for sending the said FIR to the police Station for investigation under Section 156(3) of the Code.
23. It was the case of the private complainant that he along with five others had executed the power-of-attorney in respect of parcels of land which were aggregated in form of one plot on 06.11.2001 in favour of the present petitioner No.1. It was alleged that petitioner No.1 in criminal conspiracy with petitioner No.2 sold the said piece of land without consideration and the consideration was not passed on to the complainant. The complainant therein had made serious allegation against present petitioners and the complaint thus filed on 02.02.2005 was ordered to be inquired under Section 156(3) of the Code by DCB, Surat, and report within 30 days.
24. This Court (Coram: Jayant Patel, J.) while issuing rule on 10.08.2005 granted interim Page 29 of 65 HC-NIC Page 33 of 69 Created On Tue Aug 15 15:35:52 IST 2017 33 of 69 R/CR.MA/15197/2016 CAV JUDGMENT relief in terms of Paragraph-17(d) of that application. The petitioners were also directed to deposit full amount of Rs.14.25/- lakh with the trial Court within a period of 10 days without prejudice to the rights and contentions of the petitioners and without admitting their guilt. The Trial Court was directed to invest the said amount in any nationalized bank in fixed deposit and such deposit of the amount was made subject to the further orders of this Court which was to be passed at the time of final hearing.
25. An application being Criminal Misc. Application No. 9734 of 2005 was moved in Criminal Misc. Application No. 2697 of 2005 and this Court noticed that the trial Court did not accept the amount namely the Court of Judicial Magistrate, Surat. This Court (Coram: Jayant Patel, J.) particularly directed the trial Court at Surat to accept the amount of Rs.14.25/- lakh which was tendered by the petitioners on or before 05.09.2005, with a further direction and to deposit the same in FDR pursuant to the order dated 10.08.2005. This Court thus reiterated that the said amount to be invested as per the earlier order, i.e. dated 10.08.2005, and the said application (Criminal Misc. Application No. 9734 of 2005) was disposed of by allowing the same to the aforesaid extent.
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26. Eventually, learned Judge of this Court on 26.03.2009 quashed and set aside the said inquiry being Criminal Inquiry Case No. 4 of 2005 by a detailed order (Coram: S.B. Brahmbhatt, J.) by allowing Criminal Misc. Application No.2697 of 2005.
27. The petitioners sought back the said amount of Rs.14.25/- lakh by preferring Criminal Misc. Application No. 8956 of 2009 and this Court (Coram: Akil Kureshi, J.) passed the order on 15.12.2009.
27.1 The challenge to the said judgment and order of 26.03.2009 by way of Special Leave Petition No. 6950 of 2009 where initially the court directed stay against withdrawal of amount of Rs.14.25/- lakh but eventually the same also ended in favour of the petitioners and the Apex Court dismissed the SLP No. 6950 of 2009 on 12.11.2013.
27.2 The petitioners therefore sought refund of the amount of Rs.14.25/- lakh deposited with the trial Court in wake of the order passed by this Court on 10.08.2005 by preferring Criminal Misc. Application No. 5386 of 2014 for direction by reproducing all the orders passed earlier and Page 31 of 65 HC-NIC Page 35 of 69 Created On Tue Aug 15 15:35:52 IST 2017 35 of 69 R/CR.MA/15197/2016 CAV JUDGMENT noticing the dismissal of the appeal by the Apex Court, learned Judge (Coram: Akil Kureshi, J.) held that there was no reason for withholding the said amount and therefore, directed the release of the same on the terms and conditions as contained in the order dated 15.12.2009 passed in Criminal Misc. Application No. 8956 of 2009, as referred to herein above at Paragraph-6.
28. Pursuant to the said order when an application was made on 13.08.2014 before the learned Judicial Magistrate in Inquiry Criminal Case No. 4 of 2005, the Court directed the Nazir to verify the same on 13.08.2014 vide its order dated 19.08.2014.
29. The report of the Nazir was submitted on 22.08.2014 that the deposit of Rs.14.25/- lakh had been made but, no FDR of the same had been directed. Accordingly the order came to be passed on 18.09.2014 by the learned Judicial Magistrate on 18.09.2014, specifying therein that the said amount of Rs.14.25/- lakh has been deposited as deposit simply in Register 'C' and the said amount has not been fixed deposited any time. The Court also noted in the said order that the petitioner No.2 had submitted an application dated 17.09.2014 expressing to forego his right in favour of petitioner No.1 to receive the Page 32 of 65 HC-NIC Page 36 of 69 Created On Tue Aug 15 15:35:52 IST 2017 36 of 69 R/CR.MA/15197/2016 CAV JUDGMENT entire amount and therefore total sum of Rs.14.25/- lakh was directed to be paid by an account payee cheque to the petitioner No.1
30. In wake of chronology of events mentioned herein above, the petitioner here in had approached the Bench taking up the matters relating to contempt of court and their contempt application was not entertained. It was withdrawn with a liberty to prefer execution petition.
31. It is a matter of record that the petitioners have chosen to approach this court under Article 226 and Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure rather than going through the mode of execution petition. When the Bench taking up the contempt matters permitted the petitioner to withdraw the contempt application to prefer execution petition, it would not mean that they would be precluded to take other viable and effective redressal measure available to them under the law. It is the choice of the parties when there are more than one recourses available to seek redressal of their cause by choosing from those available legal options. Merely because The petitioners chose not to challenge the order of the Division Bench which permitted execution petition and if they Page 33 of 65 HC-NIC Page 37 of 69 Created On Tue Aug 15 15:35:52 IST 2017 37 of 69 R/CR.MA/15197/2016 CAV JUDGMENT later on also, did not get such an order modified, it can never be held therefore that the legal recourses which are otherwise provided for all other litigants should be selectively denied to the petitioners. Again, the issue raised in this petition needed adjudication. Execution petition can be preferred once there is a decree of the competent Court. Without pre-existing right determined by the competent court, preferring the execution petition would have served no purpose. The trial Court has already ordered refund of the amount of Rs.14.25/- lakh by way of account payee cheque. What petitioner seeks is the interest that may have accrued on the amount and compensation for the loss which would require adjudication. Therefore also, that mode of preferring execution petition straightaway hardly was viable.
32. Article 226 can be resorted to for any violation of fundamental rights under Part III of the Constitution of India and also for any other purposes.
32.1 In the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, reported in (1998) 8 SCC 1, the Apex Court has held that existence of an alternative remedy is not a constitutional bar to High Court's Page 34 of 65 HC-NIC Page 38 of 69 Created On Tue Aug 15 15:35:52 IST 2017 38 of 69 R/CR.MA/15197/2016 CAV JUDGMENT jurisdiction but is a self-imposed restriction. The alternative remedy would not operate as a bar
(i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is violation of principles of natural justice; or
(iii) where the order or the proceedings are wholly without jurisdiction or the vires of an Act is challenged. It would be appropriate to reproduce the relevant observations of the said decision, which read as under :
"14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose".
15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a Writ Petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by Page 35 of 65 HC-NIC Page 39 of 69 Created On Tue Aug 15 15:35:52 IST 2017 39 of 69 R/CR.MA/15197/2016 CAV JUDGMENT this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order of proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point put to cut down this circle of forensic Whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field."
32.2 In the case of 'ANANDI MUKTA SADGURU SHREE MUKTA JEEVANDASSWAMI SUVARNA JAYA Vs. V.R. RUDANI & ORS.', (1989) 2 SCC 691, the Apex Court was considering the question as to against whom and when the writ of mandamus can be issued. The relevant observations made by the Apex Court reads thus:
"15. If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to Mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. It has to be appreciated that the appellants-- trust was managing the affiliated college to which public money is paid as Government aid. Public money Page 36 of 65 HC-NIC Page 40 of 69 Created On Tue Aug 15 15:35:52 IST 2017 40 of 69 R/CR.MA/15197/2016 CAV JUDGMENT paid as Government aid plays a major role in the control, maintenance and working of educational institutions.
The aided institutions like
Government institutions discharge
public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. (See--The Evolving Indian Administration Law by M.P. Jain [1983] p. 266). So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super-added protection by University decisions creating a legal right-duty relationship between the staff and the management. When there is existence of this relationship, mandamus can not be refused to the aggrieved party.
16. The Law relating to mandamus has made the most spectacular advance. It may be recalled that the remedy by prerogative writs in England started with very limited scope and suffered from many procedural disadvantages. To overcome the difficulties, Lord Gardiner (the Lord Chancellor) in pursuance of Section 3(1)(e) of the Law Commission Act, 1965, requested Page 37 of 65 HC-NIC Page 41 of 69 Created On Tue Aug 15 15:35:52 IST 2017 41 of 69 R/CR.MA/15197/2016 CAV JUDGMENT the Law Commission "to review the existing remedies for the judicial control of administrative acts and omission with a view to evolving a simpler and more effective procedure." The Law Commission made their report in March 1976 (Law Com No. 73). It was implemented by Rules of Court (Order 53) in 1977 and given statutory force in 1981 by Section 31 of to Supreme Court Act 1981. It combined all the former remedies into one proceeding called Judicial Review. Lord Denning explains the scope of this "judicial review":
"At one stroke the courts could grant whatever relief was appropriate. Not only certiorari and mandamus, but also declaration and injunction. Even damages. The procedure was much more simple and expeditious. Just a summons instead of a writ. No formal pleadings. The evidence was given by affidavit. As a rule no cross-examination, no discovery, and so forth. But there were important safeguards. In particular, in order to qualify, the applicant had to get the leave of a judge. The Statute is phrased in flexible terms. It gives scope for development. It uses the words "having regard to". Those words are very indefinite. The result is that the courts are not bound hand and foot by the previous law. They are to 'have regard to' it. So the previous law as to who are--and who are not--public authorities, is not absolutely binding. Nor is the previous law as to the matters in Page 38 of 65 HC-NIC Page 42 of 69 Created On Tue Aug 15 15:35:52 IST 2017 42 of 69 R/CR.MA/15197/2016 CAV JUDGMENT respect of which relief may be granted. This means that the judges can develop the public law as they think best. That they have done and are doing." (See--The Closing Chapter--by Rt. Hon Lord Denning p.
122).
17. There, however, the prerogative writ of mandamus is confined only to public authorities to compel performance of public duty. The 'public authority' for them mean every body which is created by statute--and whose powers and duties are defined by statue. So Government departments, local authorities, police authorities, and statutory undertakings and corporations, are all 'public authorities'. But there is no such limitation for our High Courts to issue the writ 'in the nature of mandamus'. Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226, writs can be issued to "any person or authority". It can be issued "for the enforcement of any of the fundamental rights and for any other purpose".
18. Article 226 reads:
"226. Power of High Courts to issue certain writs (1) Notwithstanding anything in Art. 32, every High Court shall have power, throughout the territories in relation to which Page 39 of 65 HC-NIC Page 43 of 69 Created On Tue Aug 15 15:35:52 IST 2017 43 of 69 R/CR.MA/15197/2016 CAV JUDGMENT it exercises jurisdiction to issue to any person or authority including in appropriate cases, any Government, within those territories directions, orders or writs, includeing (Writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them for the enforcement of any of the rights conferred by Part II and for any other purpose.
XXX XXX XXX XXX"
19. The scope of this article has been explained by Subba Rao., in Dwarkanath v. Income Tax Officer, [1965] 3 SCR 536 at (540-41):
"This article is couched in comprehensive phraseology and it ex- facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this Page 40 of 65 HC-NIC Page 44 of 69 Created On Tue Aug 15 15:35:52 IST 2017 44 of 69 R/CR.MA/15197/2016 CAV JUDGMENT country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself."
20. The term "authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Art. 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non- fundamental rights. The words "Any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation .owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied.
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21. In Praga Tools Corporation v. Shri C.A. Imanual & Ors., [1969] 3 SCR 773, this Court said that a mandamus can issue against a person or body to carry out the duties placed on them by the Statutes even though they are not public officials or statutory body. It was observed (at 778):
"It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official or a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purpose of fulfilling public responsibilities.(See Halsbury's Laws of England (3 rd Ed. Vol. II p. 52 and onwards)."
22. Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor De Smith states: "To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by Page 42 of 65 HC-NIC Page 46 of 69 Created On Tue Aug 15 15:35:52 IST 2017 46 of 69 R/CR.MA/15197/2016 CAV JUDGMENT charter, common law, custom or even contract." (Judicial Review of Administrative 'Act 4 Ed. p. 540).
th We share this view. The judicial control over the fast expanding maze of bodies effecting the rights of the people should not be put into water-tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available 'to reach injustice wherever it is found'.
Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition."
32.3 Thus, the High Court has wide powers to redress injustice found anywhere. This also enables the High Court to mould the reliefs to meet the requirements of mitigating injustice once there is positive obligation of the authority towards the affected party, it can be exercised. Moreover, the inherent powers under Section 482 of the Code also can be exercised for serving the ends of justice. While exercising jurisdiction under this provision, the High Court needs to sparing and cautiously exercise the same, to justify the tasks laid down in the section itself, as held in case of 'MONICA KUMAR (DR.) VS. STATE OF U.P. AND OTHERS', (2008) 8 SCC
781. Page 43 of 65 HC-NIC Page 47 of 69 Created On Tue Aug 15 15:35:52 IST 2017 47 of 69 R/CR.MA/15197/2016 CAV JUDGMENT 32.4 In light of the discussion above, it can be held that this petition in the present form is maintainable and their having not chosen execution petition would not bar this remedy provided under the law.
33. Adverting to the facts at this juncture, directions issued by this Court in Criminal Misc. Application No. 2697 of 2005 vide its order dated 10.08.2005 was to deposit an amount of Rs.14.25/- lakh with the trial Court and to invest the same in FDR in any nationalized bank does not leave any kind of ambiguity. Both the orders are as clear as broad day light. Thereafter also, vide order passed in Criminal Misc. Application No. 9734 of 2005 seeking extension of time to deposit the amount the Court once again on 26.08.2005 while extending such time period reiterated the earlier directions of investing such an amount by way of the fixed deposit. The earlier order of 10.08.2005 had no direct service and the writ was sent by the registry of the Court at Surat, whereas, the second order of 26.08.2005 was served upon the Sessions Court by the petitioners.
34. On 02.09.2005 as can be culled out from Page 44 of 65 HC-NIC Page 48 of 69 Created On Tue Aug 15 15:35:52 IST 2017 48 of 69 R/CR.MA/15197/2016 CAV JUDGMENT the affidavit-in-reply of Respondent No.4 that when the petitioner submitted an application for depositing the amount, the then Nazir (Respondent No.3) placed the same before Respondent No.2 who passed an order of depositing the amount of Rs.14.25/- lakh under the head of 'Criminal Court Deposit for now'. The reference is also made in the order dated 26.08.2005 of the earlier order dated 10.08.2005. Respondent No.2 further received the earlier writ of this Court of 10.08.2005 subsequently on the very date, i.e. 02.09.2005 at 01:00 p.m. but chose not to make any change in his order. It was open to him to call the parties and pass necessary orders or to do on his own in due compliance of the order of the High Court. The directions as reproduced herein above were extremely clear of fix depositing the amount.
There is neither any ambiguity nor an iota of doubt that this was meant to be executed at the end of the trial Court. Nazir also was equally responsible to ensure that the High Court's order are duly complied with. There were not unusual orders which would have required deeper comprehension. Assuming that in the matter before the High Court, the learned JMFC would have no powers to pass any order by independently examining the issue, the least the Presiding Page 45 of 65 HC-NIC Page 49 of 69 Created On Tue Aug 15 15:35:52 IST 2017 49 of 69 R/CR.MA/15197/2016 CAV JUDGMENT Officer could do is to read the order and to comply with the directions that the High Court may issue.
35. The Presiding Officer was required to ensure such compliance of the orders of the High Court. It is quite true that on administrative side the ministerial staff has to assist the Court for running the administration, yet in the judicial and supervisory capacity, it becomes the onus of the Presiding Officer to fulfill the obligations of the post by following the directions issued by the Superior Court. Again, as mentioned in affidavit-in-reply by respondent Nos. 3 and 4 Nazir did draw the attention of Respondent No.2 . Nazir directly could have fixed deposited the amount following directions. He could have reported to the learned District & Sessions Judge but, he on the contrary reported of compliance to the High Court which is silent on fixed deposit of amount. The fact thus remains that respondent No.2 in particular and Respondent No.3 failed to implement the directions of the High Court. The fresh attempt to shift the blame on litigants for not drawing attention once again is a defence far from being bona fide.
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36. Much emphasis is laid on the distinction between the judicial and ministerial functions and Respondent No.2 has also sought to invoke the Judicial Officers' Protection Act, 1850 and Judges (Protection) Act, 1985 on the ground that he is immune to be proceed against. It would be apt to refer to the decision of the Apex Court in 'JAMAL UDDIN AHMAD VS. ABU SALEH NAJMUDDIN AND ANOTHER', (2003) 4 SCC 257, Paragraph-14 thereof reads thus:
"The functions discharged by a High Court can be divided broadly into judicial and administrative functions. The judicial functions are to be discharged essentially by the judges as per the rules of the Court and cannot be delegated. However, administrative functions need not necessarily be discharged by the judges by themselves, whether individually or collectively or in a group of two or more, and may be delegated or entrusted by authorization to subordinates unless there be some rule of law restraining such delegation or authorisation. Every High Court consists of some administrative and ministerial staff which is as much a part of the High Court as an institution and is meant to be entrusted with the responsibility of discharging administrative and ministerial functions.
There can be 'delegation' as also there can be 'authorization' in Page 47 of 65 HC-NIC Page 51 of 69 Created On Tue Aug 15 15:35:52 IST 2017 51 of 69 R/CR.MA/15197/2016 CAV JUDGMENT favour of the Registry and the officials therein by empowering or entrusting them with authority or by permitting a few things to be done by them for and or behalf of the Court so as to aid the judges in discharge of the judicial functioning. Authorization may take the form of formal conferral or sanction or may be by way of approval or countenance. Such delegation or authorization is not a matter of mere convenience but a necessity at times.
The Judges are already overburdened with the task of performing judicial functions and the constraints on their time and energy are so demanding that it is in public interest to allow them to devote time and energy as much as possible in discharging their judicial functions, relieving them of the need for diverting their limited resources of time and energy to such administrative or ministerial functions, which, on any principle of propriety, logic, or necessity are not required necessarily to be performed by the Judges. Receiving a cause or a document and making it presentable to a Judge for the purpose of hearing or trial and many a functions postdecision, which functions are administrative and ministerial in nature, can be and are generally entrusted or made over to be discharged by the staff of the High Court, often by making a provision in the rules or under the orders of the Chief Justice or by issuing practice directions, and at times, in the absence of rules, by Page 48 of 65 HC-NIC Page 52 of 69 Created On Tue Aug 15 15:35:52 IST 2017 52 of 69 R/CR.MA/15197/2016 CAV JUDGMENT sheer practice. The practice gathers the strength of law and the older the practice the greater is the strength. The Judges rarely receive personally any document required to be presented to the Court. Plaints, petitions, memoranda or other document required to be presented to the Court are invariably received by the administrative or ministerial staff, who would also carry out preliminary scrutiny of such documents so as to find that they are in order and then make the documents presentable to the judge, so that the valuable time of the Judge is not wasted over such matters as do not need to be dealt with personally by the Judge."
37. Of course, the Respondent No.3 drew the attention of the learned Presiding Judge but he could not have left the task half done. His assistance as the Nazir of that Court was to provide administrative assistance and putting the deposited amount in FDR as per the directions of the High Court. Any omission or negligence on the part of the Respondent No.2 could not have allowed the Respondent No.3 to also not perform his part of duties.
38. Thus, the act of fixed depositing the amount deposited by the petitioners, as per the directions of this court, can be held to be ministerial task as nothing was left to Page 49 of 65 HC-NIC Page 53 of 69 Created On Tue Aug 15 15:35:52 IST 2017 53 of 69 R/CR.MA/15197/2016 CAV JUDGMENT discretion of anyone. Judicial function as held by the Apex court in the case of 'JAMAL UDDIN AHMED VERSUS ABU SALEH' (supra), is to decide on the disputes after hearing the parties and the decision taken fixes the rights and obligations of the parties. The ministerial act,is to be performed in obedience of the mandate given by the legal authority where individual does not have to exercise his discretion. Of course , when an application was tendered by the petitioners, the order of fixed deposit was to be passed by the Respondent No.2 as he needed to ensure due compliance of the mandate given by the High Court. The task which was to be performed by him essentially could be termed as ministerial work. The Apex Court in case of 'STATE OF MAHARASHTRA VERSUS SAEED SOHAIL SHEIKH', reported in (2012)13 SCC 192, referring to the decision of 'PROVINCE OF BOMBAY VERSUS KUSHAL DAS ADANI', AIR 1950 Supreme Court 222 has laid down a test, i.e. is there any duty to decide judicially ? The real test which would distinguishes a quasi judicial powers from an administrative act is also the duty to act judicially.
39. It is also the say of respondent No.2 without admission that even if it is believed that the officer had not acted on 'judicial side' but on 'administrative side', while so acting, Page 50 of 65 HC-NIC Page 54 of 69 Created On Tue Aug 15 15:35:52 IST 2017 54 of 69 R/CR.MA/15197/2016 CAV JUDGMENT there was no ill intention on the part of the respondent no.2 by this omission.
This Court of course while examining the entire material has not found the act of the respondent no. 2 being malicious or mala fide . It is also not culling out anywhere that he was to be benefited from such act of non-deposit of amount. It is prima facie the act of omission or negligence. Requisite care necessary towards the duty appears to be missing. The Respondent no.2 Once having noted that the previous order had not arrived and while admitting the amount, when he directs the deposit 'for now' and yet, he neither bothered to find out such order of the 10.08.2005 nor he attempted to change his earlier order on receiving the writ on the very day.
40. The contention taken by respondent no. 2 is that Section 1 of the judicial officers' protection Act, 1850 provides for protection of judges who acted judicially and ordered done by him in the discharge of judicial duty. This according to him would get covered by the decision of the Apex Court rendered in the case of 'RACHAPUDI SUBBA RAO VS. THE ADVOCATE GENERAL, STATE OF AP', Page 51 of 65 HC-NIC Page 55 of 69 Created On Tue Aug 15 15:35:52 IST 2017 55 of 69 R/CR.MA/15197/2016 CAV JUDGMENT "8. The contention is clearly unsustainable. Section 1 of the Judicial Officers' Protection Act, 1850 provides :
"No Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction :
Provided that he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of; and no officer of any Court or other person, bound to execute the lawful warrants or orders of any such Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court, for the execution of any warrant or order, which he would be bound to execute, if within the jurisdiction of the person issuing the same."
9. As pointed out by this Court in Anwar Hussain v. Ajoy Kumar Mukerjee & Ors the Section affords protection to two broad categories of acts done or ordered to be done by a judicial officer in his judicial capacity. In the first category fall those acts which are within the limits of his jurisdiction. The second category Page 52 of 65 HC-NIC Page 56 of 69 Created On Tue Aug 15 15:35:52 IST 2017 56 of 69 R/CR.MA/15197/2016 CAV JUDGMENT encompasses those acts which may not be within the jurisdiction of the judicial officer, but are, nevertheless, done or ordered to be done by him, believing in good faith that he had jurisdiction to do them or order them to be done.
10. In the case of acts of the first category committed in the discharge of his judicial duties, the protection afforded by the statute is absolute, and no enquiry will be entertained as to whether the act done or ordered to bed done was erroneous, or even illegal, or was done or ordered without believing in good faith."
41. To the same effect is the decision of 'S.P. GOEL VS. COLLECTOR OF STAMPS, DELHI', (1996) 1 SCC 573, where the Apex Court in absence of any allegation regarding malicious, motivated and mala fide actions of Registering Officer and Collector of Stamp protected the Judicial Officers' (Protection) Act, 1850, for the acts done in good faith in discharge of his official duties where a complaint under the Consumer Protection Act for alleged defect in services. The Collector of Stamp as defined under Section 2(9) of the Stamp Act according to the Court is protected under the said Judicial Officers' (Protection) Act, 1850.
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42. In wake of the discussion above, the prayers of the petitioners deserve to be regarded. Considering the interest which needs to be made payable on the amount of Rs.14.25/- lakh internal responsibility can be fixed of the erring officer by the Disciplinary Authority. However, till then, the process should not deprive the petitioners of their dues for no fault of theirs. Only because there are questions as to who can be held responsible for this inaction and non-implementation of the orders of this Court would not permit this Court to deny the petitioners of their entitlement. It is an uncontroverted fact that had the order of this Court complied duly, the amount would have fetched interest on FDR not only that but from the year 2014, petitioners need to go from post to pillar to get back their own amount.
43. Profitable reference to the decision of the Bombay High Court in case of 'KALURAM SITARAM VS. THE DOMINION OF INDIA', AIR 1954 Bombay 50 requires to be made at this stage. The High Court was considering the question of responsibility of the railway administration for the damage for non-delivery of four silver bars. Section 75 of the Indian Railways act prescribed a statutory limitations upon the responsibility of the railway administration under section 72 of the Page 54 of 65 HC-NIC Page 58 of 69 Created On Tue Aug 15 15:35:52 IST 2017 58 of 69 R/CR.MA/15197/2016 CAV JUDGMENT said act which defined the responsibility of a railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by Railway. This was a peculiar case according to the Bombay High Court in the sense that, four silver bars reached Ballia in the state of Bihar and instead of being delivered to the person who had the railway receipts or as the rules of the Railway administration required, they were delivered to a person who admittedly was not authorized to receive them. This became possible by reason of the complicity of a servant of the railway administration who was the parcel clerk at the material time. Therefore according to the Bombay High Court, the loss caused to the consignor was entirely due to the negligence or much more than that due to the fraud practiced by a servant of the railway administration.
The railway administration prosecuted the parcel clerk and the person who obtained silver bars for misappropriation of these bars. Misappropriation by a servant of the railway administration also according to the court would constitute loss within the meaning of the statute,but apart from legal technicalities there was no doubt that the consignor suffered not because of any accident nor because of any act of God, but because a servant of the railway Page 55 of 65 HC-NIC Page 59 of 69 Created On Tue Aug 15 15:35:52 IST 2017 59 of 69 R/CR.MA/15197/2016 CAV JUDGMENT administration happened to be dishonest and contrary to the rules of the railway administration and in breach of his authority. In the said premise Hon'ble Mr. Justice M.C. Chawla (as his Lordship then was) in his inimitable style held and observed that the state when deals with a citizen , it should not rely on technicalities, once the case of the citizen is found just ,even when legal defences are available ,the state must act as an honest person.
"12. Now, we have often had occasion to say that when the State deals with a citizen it should not ordinarily rely on technicalities, and if the State is satisfied that the case of the citizen is a just one, even though elgal defences may be open to it, it must act, as has been said by eminent judges, as an honest person. In this case, at the instance of Sir Jamshedji, we have construed the law and on the law perhaps the plaintiff has no case at all. But turning away from the law and looking to the equities of the case there can be no doubt that the railway administration is responsible for the loss caused to the plaintiff. As I have said before, it was entirely due to the dishonest servant of the railway administration that the plaintiff suffered this heavy loss of over Rs.20,000 and e are sure that the Dominion of India, although we are dismissing his suit, will consider Page 56 of 65 HC-NIC Page 60 of 69 Created On Tue Aug 15 15:35:52 IST 2017
60 of 69 R/CR.MA/15197/2016 CAV JUDGMENT whether some reasonable compensation should not be paid to the plaintiff for the loss he has suffered. Sir Jamshedji has assured us that he would do his best to put forward this point of view to his client, the Dominion of India, and we have no doubt that the Dominion of India will be persuaded by Sir Jamshedji to take a fair, reasonable and equitable view of this case and do something to meet the justifiable grievance of the plaintiff."
44. In case of 'U.P.S.R.T.C. VERSUS IMTIAZ HUSSAIN', reported in AIR 2006 SC 649, the very maxim of equity, namely, 'actus curiae naminem gravabit' was considered in connection with correction of clerical or arithmetical mistake in the award of the Labour Court. It would be worthwhile to mention as held by the Apex Court that this maxim was founded upon justice and good sense which serves a safe and certain guidelines for administration of law.
"8. The basis of the provision under Section 152 of the Code is founded on the maxim 'actus curiae neminem gravabit' i.e. an act of Court shall prejudice no man. The maxim "is founded upon justice and good sense, and affords a safe and certain guide for the administration of the law", said Cresswell J. in Freeman v. Tranah (12 C.B. 406). An unintentional mistake of the Court which may prejudice the cause of any party must and alone could be Page 57 of 65 HC-NIC Page 61 of 69 Created On Tue Aug 15 15:35:52 IST 2017 61 of 69 R/CR.MA/15197/2016 CAV JUDGMENT rectified. In Master Construction Co. (P) Ltd. v. State of Orissa (AIR 1966 SC 1047) it was observed that the arithmetical mistake is a mistake of calculation, a clerical mistake is a mistake in writing or typing whereas an error arising out of or occurring from accidental slip or omission is an error due to careless mistake on the part of the Court liable to be corrected. To illustrate this point it was said that in a case where the order contains something which is not mentioned in the decree, it would be a case of unintentional omission or mistake as the mistake or omission is attributable to the Court which may say something or omit to say something which it did not intend to say or omit. No new arguments or re-
arguments on merits can be
entertained to facilitate such
rectification of mistakes. The
provision cannot be invoked to
modify, alter or add to the terms of the original order or decree so as to, in effect, pass an effective judicial order after the judgment in the case.
9. The maxim of equity, namely, actus curiae neminem gravabit an act of court shall prejudice no man, shall be applicable. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia the law does not compel a man to do what he cannot possibly perform. The law itself and its Page 58 of 65 HC-NIC Page 62 of 69 Created On Tue Aug 15 15:35:52 IST 2017 62 of 69 R/CR.MA/15197/2016 CAV JUDGMENT administration is understood to disclaim as it does in its general aphorisms, all intention of compelling impossibilities, and the administration of law must adopt that general exception in the consideration of particular cases. The applicability of the aforesaid maxims has been approved by this Court in Raj Kumar Dey v. Tarapada Dey (1987 (4) SCC 398), Gursharan Singh v. New Delhi Municipal Committee (1996 (2) SCC 459) and Mohammod Gazi v. State of M.P. and others (2000(4) SCC 342). The principles as applicable to Section 152 CPC are clearly applicable to Section 6(6) of the U.P. Act. In the aforesaid background the Labour Court was not justified in modifying the award as was originally made.
The High Court also had not considered this aspect and decided the writ petition filed by the present appellant on issues other than this vital issue.
45. To the same effect is the decision of the Apex Court rendered in case of 'COMMITTEE- GFIL Vs. LIBRA BUILD TECH PRIVATE LIMITED. where GFIL company went into liquidation. The creditors of the company, filed various claim petitions against the company in various courts across the country . The Apex Court on an application filed, transferred all the cases pending in the country to the Supreme Court. As per the direction of the Court to the GFIL Page 59 of 65 HC-NIC Page 63 of 69 Created On Tue Aug 15 15:35:52 IST 2017 63 of 69 R/CR.MA/15197/2016 CAV JUDGMENT committee was to sell the properties and it published advertisement meant for auction of certain properties of the companies. The applicants participated in the auction and submitted their bid to purchase the property advertised for sale. After being declared as a successful bidder, the applicant deposited the entire sale consideration of huge amount and also the amount for stamp duty to purchase the property is in question. Having performed their part of contract, in letter and spirit, the GFIL committee seller failed to place the applicants in possession of the property. The Supreme Court while passing an order and canceling the transaction in question, directed the Company to refund the entire sale consideration with interest. So far as the refund of the stamp duty amount was concerned, the Supreme Court permitted the applicants to approach the state government to claim refund from the state exchequer giving various reasons. It was a case where contract in question became void as a result of its cancellation by an order of the Supreme Court,which entitled the Applicant to seek restitution of the money paid to the State for purchase of stamp duty.
It is with this background, as mentioned above, the court was of the opinion that Maxim of equity which is well-settled was required to be borne in Page 60 of 65 HC-NIC Page 64 of 69 Created On Tue Aug 15 15:35:52 IST 2017 64 of 69 R/CR.MA/15197/2016 CAV JUDGMENT mind, namely "actus curiae neminem gravabit"
meaning-An act of the Court shall prejudice no one.
46. Profitable it would be to reproduce the findings and observations of the Apex Court in this respect observed as under at Paragraphs- 37, 38 and 39:
37. In our considered opinion, while deciding a case of this nature, we have to also bear in mind one maxim of equity, which is well settled namely " actus curiae neminem gravabit " meaning - An Act of the Court shall prejudice no man. In Broom's Legal Maxims 10th edition, 1939 at page 73 this maxim is explained saying that it is founded upon justice and good sense and afforded a safe and certain guide for the administration of law. This maxim is also explained in the same words in [(Jenk. Cent.118)]. This principle is fundamental to any system of justice and applies to our jurisprudence. (See: Busching Schmitz Pvt. Ltd. vs. P.T. Menghani & Anr.(1977) 2 SCC 835 and Raj Kumar Dey & Ors. vs. Tarapada Dey & Ors.
(1987) 4 SCC 398)
38. It is thus a settled principle of law based on principle of equity that a person cannot be penalized for no fault of his and the act of the court would cause no prejudice to any of his right.
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39. In our considered opinion, the aforesaid maxim would apply with full vigour in the facts of this case and if that is the position then applicants, in our opinion, are entitled to claim the refund of entire amount of stamp duty from the State Government which they spent in purchasing the stamp duty for execution of sale deed in relation to the properties in question.
Indeed in the light of six reasons set out supra which, in our considered opinion, in clear terms attracts the principle contained in the aforesaid maxim, the State has no right to defend the order of SDM for retaining the amount of stamp duty paid by the applicants with them. The applicants' bona fide genuine claim of refund cannot be denied on such technical grounds.
47. In the result, this application is ALLOWED. While DIRECTING the Respondent No.4 to release the principal amount of Rs.14.25/- lakh, forthwith. So far as the request for interest and compensation is concerned respondent No. 1 in consultation with Respondent No. 5 is directed to calculate interest that might have accrued thereon had the said amount of Rs.14.25/- lakh been fixed deposited at the relevant point of time, gathering details from a nationalized Bank of prevalent rate of interest on fixed deposit. Such amount of interest shall be paid from Page 62 of 65 HC-NIC Page 66 of 69 Created On Tue Aug 15 15:35:52 IST 2017 66 of 69 R/CR.MA/15197/2016 CAV JUDGMENT 02.09.2005 till the date of this order. The said amount be disbursed to the petitioners within a period of EIGHT WEEKS from the date of receipt of a copy of this order. The cheque shall be prepared in the name of the petitioner No.1 and shall be handed over by the Nazir of the Court of Chief Judicial Magistrate, Surat, to him on or before 26TH APRIL, 2017.
48. With regard to responsibility as to be fixed of Respondent No.2 and Respondent No.3- Nazir, as noted above, both the Judicial Officers' (Protection) Act, 1850, and the Judges (Protection) Act, 1985, protect the act done in the discharge of his judicial duty whether or not within the limit of his jurisdiction, provided he acts in good faith. He is not liable to be sued in any civil Court under the Act of 1850 whereas under the Act 1985, powers of the Central or State government or the Supreme Court or the High Courts to take any action by way of civil, criminal or departmental proceedings otherwise are not debarred by this protection.
49. It was essentially an act on ministerial side as there was hardly anything to be adjudicated upon and yet it could be said to be blur of both the functions i.e. judicial as well Page 63 of 65 HC-NIC Page 67 of 69 Created On Tue Aug 15 15:35:52 IST 2017 67 of 69 R/CR.MA/15197/2016 CAV JUDGMENT as administrative. Remembering at this stage the decision of JAMAL UDDIN AHMAD VS. ABU SALEH NAJMUDDIN AND ANOTHER' (Supra) which says that judges are overburdened with the task of judicial work and their energy must not be diverted for ministerial work and the ministerial staff engaged for such work is essentially to carry on such function. In the opinion of this Court having found prima facie the act of ommision or absence of requisite care, in absence of any mala fide or malicious action, no direction is necessary to be issued qua Respondent No.2 for any recovery in the present proceedings.
50. Admittedly, the respondent No.2 has been made to retire in public interest by the Governor of the State long ago in exercise of powers conferred upon it on recommendations (Under Rule-
21) of the High Court under the Gujarat State Judicial Services Rules, 2005. Rule 24 of the Gujarat Pension Rules also would not permit the initiation of any departmental proceedings due to long lapse of time. The only course open therefore would be to initiate civil action against the respondent No.2 and No.3 to seek recovery.
51. However, it shall be the discretion of Page 64 of 65 HC-NIC Page 68 of 69 Created On Tue Aug 15 15:35:52 IST 2017 68 of 69 R/CR.MA/15197/2016 CAV JUDGMENT respondent No.1 and respondent No.5 to initiate any civil action if deemed necessary on following due procedure.
52. With the above directions, this petition being Special Criminal Application No. 5153 of 2015 is DISPOSED OF in such terms.
53. Accordingly, Criminal Misc. Application No. 15197 of 2016 also stands DISPOSED OF accordingly.
(MS SONIA GOKANI, J.) UMESH Page 65 of 65 HC-NIC Page 69 of 69 Created On Tue Aug 15 15:35:52 IST 2017 69 of 69