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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 ..... lic interest exercising its jurisdiction under Article 226 of the Constitution. The High Court is feeling concerned over the drainage system, the sewerage system, the drinking water supply system, the kerb on the road being in shambles and reallocating of footpaths. The High Court seems to have chosen one road as model habitat area so as to set an example for other roads conforming with the discipline governing urbanization and urban planning according to law and ensuring that future generations get a safer city to live in, a civic city, with civic amenities, for the benefit of civic citizens. The High Court has been issuing orders in the nature of continuing mandamus and has 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 align ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y approach the Hon'ble the Chief Justice for expediting the hearing of the said matter. We hope and trust that the matter would be decided at an early date. 3. On April, 5, 2003, I.A. Nos. 8-9 of 2003 were filed by the petitioners in this Court submitting that their applications praying for vacating of the interim order dated 1.10.2001 were already filed on 16/17.7.2002 but till date no date has been fixed for hearing the stay vacate application of theirs. It is also mentioned in the application that mentioning slips were submitted which were taken on record to be put up when the bench in available. It was further stated that after the order of this Court dated 28.10.2002 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court, filing an explanatory note to the Registrar General, Supreme Court? Should the High Court engage a lawyer? Has the High Court erred in any judgment? Is the High Court an adversary? This Court feels constrained to point out that perjury has taken place at the Bar of the Supreme Court. Falsehoods have been stated. The sanctity of public justice has been defiled in two Courts, the High Court and the Supreme Court. The report of the Registrar General, which details this dishonesty, should be an eye-opener as to how public justice has been defiled by falsehood's. And once the stream of justice has been polluted, it is like a poisoned river which kills rather than gives 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. Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Division Bench of Patna High Court presided over by Hon. the Chief Justice. 7. A few questions arise. Could not this Court exercising appellate jurisdiction under Article 136 of the Constitution, have directed a communication being addressed to the High Court calling for information with the object of (I) ascertaining the facts, (ii) securing compliance with the direction contained in the order dated 28.10.2002? Whether the Division Bench of the High Court is justified - in law and on considerations of propriety - to make all those observations as have been extracted and reproduced hereinabove? Is it proper for the High Court to issue a direction to the Registrar General of Supreme Court of India 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forum shall have jurisdiction to reverse, confirm, annual or modify the decree or order of the forum appealed against and in the event of a remand the lower forum shall have to re-hear the matter and comply with such directions as may accompany the order of remand. The appellate jurisdiction inherently carries with it a power to issue corrective directions binding on the forum below and failure on the part of latter to carry out such directions or show disrespect to or to question the propriety of such directions would - it is obvious - be destructive of the hierarchical system in administration of justice. The seekers of justice and the society would lose faith in both. 10. In Shankar Ramachandra Abhyankarb 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 vari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Courts being both constitutionally independent of each other and both being the Courts of record, to the extent of exercise of appellate jurisdiction certainly the Supreme Court exercises a superior jurisdiction and hence is a superior Court than the High Courts which exercise in that context an inferior or subordinate jurisdiction. 13. What is the significance of creating an appellate forum And, what is sought to be achieved by creation of such hierarchy in the justice administration system? 14. The Appellate Court plays an important role in securing high standards of judicial behaviour in court... Bearing this in mind, the role of the Court of Appeal in checking, judges should not be underestimated... 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, Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly it has to be exercised sparingly and with caution and only in special and extraordinary situations. Beyond that it is not possible to fetter the exercise of this power by any set formula or rule.... It is, however, plain that when the Court reaches the conclusion that a person has been dealt with arbitrarily or that a court or tribunal within the territory of India has not given a fair deal to a litigant, then no technical hurdles of any kind like the finality of finding of facts or otherwise can stand in the way of the exercise of this power because the whole intent and purpose of this Article is that it is the duty of the Court to see that injustice is not perpetuated or perpetrated by decisions of courts and tribunals 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he men of vision and foresight. They knew that all the constitutional functionaries and institutions would act in the best interest of norms and traditions consistent with democracy and constitutionalism, set down in and discernible from the Constitution and as handed down by history and generations of judges. Everyone would, it was expected, keep within its bounds and would not over- step its limits so that the ideals with the values remain a living reality and do not become either an intrusion or an illusion. The constitutional and democratic institutions, complementing and supplementing each other, would lend strength to these handed down traditions and would also contribute to also developing such rich traditions as would 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us, and may be waked to life and fury if we feed him overmuch. The ravening official will seek to swallow up the man. I interpret the invitation to be with you today as an expression of your judgment that whatever mistakes I may have made - and I know that they have been more than I like to figure or remember - I have at least avoided this one. I have not allowed the official to swallow up the man. I don't mean that I am entitled to a great deal of credit for so modest an achievement. In a court where the tradition of courtesy and equity is so ingrained and inveterate as it is in the Court of Appeals, one would have to be a pretty hardened sort of sinner to be guilty of the particular form of wrongdoing that has its origin 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 prid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. 23. In Assistant Collector of Central Excise Chandan Nagar, West Bengal vs. Dunlop India Ltd. and others 1985 (1) SCC 260 this Court reiterated a few observations from an earlier case (Siliguri Municipality vs. Amalendu Das 1984 (2) SCC 436 which read as - We mean no disrespect to the High Court in emphasizing the necessity for self-imposed discipline in such matters in obeisance to such weighty institutional considerations like the need to maintain decorum and comity. So also we mean no disrespect to the High Court in stressing the need for self discipline on the part of the High Court in passing interim orders without entering into the question of amplitude and width of the powers of the High Court to grant interim relief . 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 Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should not do the same. We would like to point out respectfully that the orders passed by this Court are final and no appeal lies against them. The Supreme Court is the final court in the hierarchy of our courts. Besides, order without a reasoned judgment are passed by this Court very rarely, under exceptional circumstances, Orders passed by the High Court are subject to the appellate jurisdiction of this Court under Article 136 of the Constitution and the other provisions of the concerned, statues. We thought it necessary to make these observations in order that a practice which is not very desirable and which achieves no useful purpose may not grow out of its present infancy. (emphasis supplied) 25. The Supreme Court, exercising its 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count . (See - Judicial Norms: A Judge's Perspectives - Washington University School of Law). 27. We would end our this discussion by quoting what Oliver Wendell Holmes Jr. nearing his 60th birthday, and unaware that he was shortly to be elevated from the office of Chief Justice of Massachusetts to the Supreme Court of the United States said - I ask myself, what is there to show for this half lifetime that has passed? I look into my book in which I keep a docket of the decisions of the full court which fails to me to write, and find about a thousand cases. A thousand cases, many of them upon trifling or transitory matters, to represent nearly a half a lifetime. A thousand cases when one would have liked to study to the bottom and say his 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, Cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y issue a stay order or restraint order or may suspend, expedite or regulate the proceedings in the subordinate forum. During or at the end of exercise of the appellate jurisdiction any direction made by the higher forum shall have to be complied with by the lower forum, otherwise the hierarchy becomes meaningless. 32. Though, the jurisdiction conferred on the Supreme Court under Article 136 is very wide and no technically can prevent or hinder the effective exercise of such jurisdiction yet as a rule of prudence and self-imposed discipline the superior forum refuses to exercise its jurisdiction in the first instance if the grievance raised is capable of being taken care of by any lower forum competent to do so. 33. Having recalled and recapitulated a 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... All these impressions, if created, are an outcome of misunderstanding and misapprehension or 'exuberance' as Benjamin Cardozo calls it. It is obvious that any person approaching this Court by indulging into misadventure of suggestio falsi or suppressio veri, would suffer the consequences but that would be only after the facts have been ascertained. Ordinarily, what was there to disbelieve the averments made in the petition, filed before this court detailing the facts and supported by an affidavit? Yet, the Court did not act in haste on the petition and did not pass any order ex-parte . Acting with care, caution and circumspection - and obviously with respect to the High Court - it held its hands back and tried to ascertain the facts. There was absolutely 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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