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TMI Blog2004 (4) TMI 575X X X X Extracts X X X X X X X X Extracts X X X X ..... also been monitoring the compliance. On 1.10.2001, the High Court passed an interim order containing the following directions : (a) the street alignment is in a straight or a gentle curve natural to the road and the set backs, from the centre of the road, as indicated in the details given to the court in column 3, are maintained. Buildings eclipsed by a 110' (feet) distance on either side of the road are to be identified; (b) the storm-drain will be planned so that they run contiguous to the boundary alignment of the six properties shown and measured, reference order dated 28 September, 2001; (c) the flanks/footpaths/side walks will run parallel in a straight line between the storm-drain and the carriage width of the metal road; and (d) At any intersection of the Bailey Road, a diameter of 100 metres from the centre of the road will be planned as a protected area and set backs laid so that there is no blind spot or obstruction to sight, Minimum frontage and set back off this circumstance is to be maintained at 110' (feet). One of the effects of the proceedings before the High Court and the orders passed therein was the restraint of all construction work on the entire stret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02 such mentioning slips were filed before the Hon'ble the Chief Justice on 21.11.2002, 12.12.2002 and 16.1.2003 praying for early listing of the matter but no orders were passed. The averments made in the application are supported by affidavit and also documents which consist mostly of the copies of records of proceedings in High Court. The appellants had sought for recalling of the order of this Court disposing of the SLP, the SLPs being taken up for hearing and the operation of the interim order dated 1.10.2001 passed by the Patna High Court being stayed. The applicants enclosed a chart (Annexure P-8) with the application setting out the amount of monetary loss which they had already suffered and were continuing to suffer month by month on account of their applications to vacate the stay not being taken up for hearing by the High Court.4. This Court directed notice on the applications to be issued. On 3.11.2003, a three-Judges Bench presided over by Hon'ble the Chief Justice of India, after hearing the learned counsel for the parties appearing and in their anxiety for ascertaining if the averments made by the petitioners were correct, called for a response from the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... life. xx xx xx In this case, an intervener has given a picture to the Supreme Court that no proceedings, in this case have been going on in the High Court, which is untrue. Proceedings have been going on regularly. The Supreme Court has sought the 'response' of the High Court fortunately observing "on the ground alleging that despite petitioners mentioning... for early hearing..." This is the response. This Court may have had no occasion to give its response had it not been sought. Courts are not meant to chase their orders, as they are meant to discharge their obligations with a total sense of detachment. Adversary parties are meant to point out falsehoods before the Court, but even this is an abnormality, falsehoods are not expected to be the normalcy, falsehoods are not expected to be the normalcy of Court proceedings. Then, in a Public Interest Litigation, a financially week party bringing a cause and expecting positive action for the public good may regret the day of approaching the Court, if proceedings are frustrated by an outsider distorting the issues in a higher Court. In the case in which a 'response' is being sought, the matter is connected to Urban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia to place its communication for consideration before a particular Bench of this Court? These delicate questions have provided as un opportunity for some consideration and in exploring into finding out what is the relationship of Supreme Court with High Courts as two august judicial institutions functioning under the Constitution. 8. Under the constitutional scheme as framed for the judiciary, the Supreme Court and the High Court both are courts of record. The High Court is not a court 'subordinate' to the Supreme Court. In a way the canvass of judicial powers vesting in the High Court is wider inasmuch as it has jurisdiction to issue all prerogative writs conferred by Article 226 of the Constitution for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose while the original jurisdiction of Supreme Court to issue prerogative writs remains confined to the enforcement of fundamental rights and to deal with some such matters, such as Presidential election or inter-state disputes which the Constitution does not envisage being heard and determined by High Courts. The High Court exercises power of superintendence under Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nkarb vs. Krishnaji Dattatraya Bapat - 1970 AIR(SC) 1, tihs Court pointed out that appeal is the right of entering the superior court and invoking its aid and interposition to redress the error of the court below. There are two important postulates of constituting the appellate jurisdiction; (i) the existence of the relation of superior and inferior court; and (ii) the power in the former to review decisions of the latter. Such jurisdiction is capable of being exercised in a variety of forms. An appeal is a process of civil law origin and removes a cause, entirely, subjecting the facts as well as the law, to a review and a retrial. 11. The very conferral of appellate jurisdiction carries with it certain consequences. Conferral of a principal substantive jurisdiction carries with it, as a necessary concomitant of that power, the power to exercise such other incidental and ancillary powers without which the conferral of the principal power shall be rendered redundant. As held by their Lordships of the Privy Council in Nagendra Nath Dey the Anr. vs. Suresh Chandra Dey and others, 1932 AIR(PC) 165 (Sir Dinshah Mulla speaking for the bench of five) an appeal is an application by a part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Court of Appeal regards itself as fulfilling a disciplinary function... The Court of Appeal carefully phrases its criticism. The Court usually makes clear that they do not doubt that "the judge was actuated by the best motives" or that 'in a strong desire to do justice a judge may make mistakes", but they use a language clear enough to ensure that the judge to whom the criticism is addressed, as well as other judges, get their message". (See - Judges on Trial, Shimon Shetreet, pp.201-202). "The role of the Court of Appeal in checking judicial conduct and in securing high standards of judicial behaviour in court is manifold. The Court of Appeal censures and criticizes judicial misconduct in particular cases and corrects injustices resulting from such misconduct. Whether it reverses the judgment, quashes the conviction, reduces the sentence. or changes the judgment in any manner, the disapproval and condemnation of the misconduct restores the public confidence in the courts which might otherwise have been impaired. The party offended or prejudiced, and the public at large, might be tempted to attribute misconduct of a particular judge to the judiciary as a whole. The disappr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unals because certain laws have made the decisions of these Courts or tribunals final and conclusive". 17. The Founding Fathers of the Constitution devised a justice delivery system in the country as one homogenous in content, taking care independence and hierarchy both, and holding the scales of balance even while doing so. The Union judiciary and the State judiciary are undoubtedly independent of each other except for a few areas relating to jurisdiction as we have very briefly indicated hereinbefore. However, at the same time we, cannot resist laying emphasis on the appellate hierarchy which, examined in the correct perspective, is a factor strongly contributing towards the independence of the judiciary and securing finality in adjudication within the system and its insulation from any outside interference or correction. The delicate balance has been carefully crafted and sought to be achieved by independence and interconnection - both existing simultaneously - of the Supreme Court and the High Courts. There are 'relationships of tension as well as those of cooperation' to borrow the expression employed by Frank M. Coffin in his work 'On Appeal - Courts, Lawyering , ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be respected and hailed by posterity. This would result in strengthening the working of the Constitution. In the realms of constitutionalism the values of mutual trust and respect between the functionaries, nurtured by tradition, alleviate the need to codify the rules of the relationship. Experience shows that any rigid codification of such delicate relationship is advantageous to those bent upon vilification. A rigid written law makes it difficult to maintain that dignity which is better and rightly left to be perceived by right - minded people who zealously uphold the dignity of others as they do their own. 20. An institution dealing with another institution under the Constitution shall have to observe grace and courtesy. No judge shall criticize another judge and certainly not strongly. Any departure therefrom needs to be corrected at the earliest and in the larger interest. It is obligatory on an appellate forum to correct such deviation from rule brought to its notice as having been committed by a jurisdiction subject to appeal and if it does not do so it fails in its duty. Undoubtedly, the corrective step too is taken carefully with courtesy and respect and not by way of h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the pride of office. But then, when you come to think of it, virtue s are important in the inverse order to the credit that is due to those who cultivate and practice them. No one of us struts about with satisfaction for the self-restraint involved in refraining from the crime of homicide, yet if the importance of the virtue were the measure of the credit we should all be crowing and cawing with the pride of moral excellence. So I don't assume to pride myself on the very modest virtue of being merely a human being." (Selected Writings of Benjamin Nathan Cardozo, pp. 427-428). 22. Just two or three instances of Indian judiciary available in Law Reports deserve a reference and would suffice too. In Bharat Builder Pvt. Ltd. and others vs. Parijat Flat Owners Coop. Housing Society Ltd. - 1999 (5) SCC 622 while disposing of an earlier SLP the Supreme Court desired the High Court to decide a plea by the convenient means of a review petition expecting the High Court 'that the questions shall addressed", 'regardless of the technical limitations of the review petition". The High Court dismissed the review application and observed inter alia - 'the issue posed to be exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Referring to what was said in Cassell & Co. Ltd. vs. Broome [1972] 2 W.L.R. 645 the Court said - We hope it will never be necessary for us to say so again that "in the hierarchical system of courts" which exists in our country, 'it is necessary for each lower tier", including the High Court, "to accept loyally the decisions of the higher tiers". "It is inevitable in hierarchical system of courts that there are decisions of the Supreme Appellate Tribunal which do not attract the unanimous approval of all members of the judiciary .. but the judicial system only works if someone is allowed to have the last word and that last word, once spoken, is loyally accepted." The better wisdom of the court below must yield to the higher wisdom of the court above. That is the strength of the hierarchical judicial system'. Though qualifying its statement by the expression 'it is needless to add', yet the court felt the need of adding in its judgment that under Article 144 all authorities, civil and judicial (High Courts included) in the territory of India shall act in aid of the Supreme Court. 24. We are inclined to extract and reproduce a very instructive passage, apposite to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellate jurisdiction, is called upon to issue directions which is not only its privilege as appellate forum but often a necessity for meeting the demands of justice and effective exercise of appellate power. Yet, it cautiously abstains from issuing any 'directions' as such an rather uses the alternative and polite expressions like - 'we request the High Court', 'the High Court is expected to', 'we trust and hope that the High Court will/ shall', spelled out by courtesy and the respect and regards which the Supreme Court has - and must have - for High Courts. The practice has developed and gained ground as tradition. Barring may be an instance or two, which too must have been avoidable, there has been no occasion either for any disrespect having been shown by the Supreme Court or vice versa or for this Court having been called upon to take cognizance of any instance of disrespect shown to it by any High Court. 26. Harry T. Edwards, Chief Justice, U.S. Court of Appeals for the D.C. Circuit emphasises self-restraint as helping build up the Courts constitutional legitimacy overtime inasmuch as judicial self-restraint helps both to generate and to pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... say on every question which the law has presented. I often imagine Shakespeare or Nepoleon summing himself up and thinking: 'yes, I have written 5,000 lines of solid gold and a good deal of padding, who would have covered the Milky Way with words that outshone the stars'. We are lucky enough if we can give a sample of our best and if in our hearts we can feel that it has been nobly done." (Extracted I and cited by J.H. Wootten, "Creativity in the Law" (1972) 4 Aust J Frensic Sciences, at 107). 28. Cooperation can be achieved and tension avoided between two judicial institutions if only judicial collegiality is learnt, nobility prevails and Holmes' humility rules. 29. The constitutional jurist H.M. Seerval in his work 'Constitutional Law of India, Fourth Edition, Silver Jubilee Edition, Vol.3, in para 25.481) refers to the 'values' of our Constitution and says - 'the word 'values' in plural means one's principles or standard, one's judgment and what is available as important in life". However, the interpretation of the provisions of our Constitution cannot fluctuate with the different values in which different judges believe. Seerval quo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... few of the golden principles, fundamental and basic, we now revert back to the facts of the the present case. 34. After all, what was done by this Court? On 28.10.2002, this Court exercised self-control and refused to entertain the SLP forming an opinion as to why it should step in and why it should not leave it open to the High Court to freely exercise its constitutional jurisdiction and that too in public interest in the present case. However, the grievance raised by the then petitioners needed to be heard early; to form such opinion and issue a consequential direction undoubtedly were within the competence of this Court under Article 136 of the Constitution. Later on the order dated 3.10.2003 came to be passed on the petition supported by an affidavit, stating the facts and mentioning the dates, giving rise to the occasion for filing the same, which was, if not a complaint, at least a grievance that the High Court had failed to comply with the order dated 28.10.2002 passed by this Court in exercise of its jurisdiction conferred by Article 136 of the Constitution. The Court felt that the order should have been complied with. The Court proceeded with the assumption that in ordina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no occasion for the High Court to feel annoyed and disturbed much less to feel perturbed and react in the manner in which it has unfortunately done. The High Court should have known that both the orders, the order dated 20.10.2002 as also the order dated 3.11.2003 were passed by the Benches headed by Hon. the Chief Justice of India, the pater families of Indian Judiciary. In our considered opinion, the order dated 3.12.2003, passed by the Division Bench of the High Court, it unfortunate. We too are not feeling too happy to pass the present order. Our embarrassment stands multiplied when we notice that the Division Bench of the High Court which passed the order dated 3.12.2003 too was headed by the Chief justice of the High Court. All this was avoidable and should have been avoided far from making mountain out of a mole hill. 36. Be that as it may, we have to maintain the dignity of this august institution as the Apex Court of the country and undo a mistaken assumption of the High Court, that any order of this Court was intended to undermine the High Court's status as a constitutional court or Court of Record. Such an order of the High Court, which has done no good either to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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