XVI. WHERE THE STATUTE IS SILENT AS TO THE OBLIGATION TO AFFORD A HEARING TO THE PARTY AFFECTED, SUCH RIGHT HAS TO BE READ INTO THE STATUTE.

XVI. WHERE THE STATUTE IS SILENT AS TO THE OBLIGATION TO AFFORD A

HEARING TO THE PARTY AFFECTED, SUCH RIGHT HAS TO BE READ INTO THE

STATUTE.

Party’s name Citation Strength

of Bench

Ratio laid down

Yoginath Bagde v. State

of Maharashtra.

(1999) 7 SCC

739

(Para 23)

Where the statute is silent as to

the obligation to afford a hearing

to the party affected, such right

has to be read into the statute.

Siemens Engineering v.

Union of India

AIR 1976 SC

1785,

Para 6

Fair hearing a must.

Institute of Chartered

Accountants of India

AIR 1987 SC 7

A.R. Antulay v. R.S.

Nayak

(1988) 2 SCC

602

Olga Tellis v. BMC AIR 1986 SC

180

Union of India v. Tulsiram

Patel

AIR 1985 SC

1416

Punjab National Bank v.

Kunjbehari Misra

AIR 1990 SC

2713

Para 19.

3 Judges Right of hearing has to be read

into the Regulations.

Managing Director, ECIL,

Hyderabad v. B.

Karunakar

(1993) 4 SCC

727

5 Judges

Mohinder Singh Gill v.

Chief Election

Commissioner

(1978) 1 SCC

405

5 Judges Right of hearing – distinction

between administrative and

quasi-judicial functions no longer

relevant.

A.K. Kraipak & Ors v.

Union of India & Ors

AIR 1970 SC

150

Bias – Right of Hearing

Swadeshi Cotton Mills v.

Union of India.

(1981) 1 SCC

664

3 Judges Right of hearing.

Liberty Mills v. Union of

India

AIR 1984 SC

1271

Post-decisional/pre- decisional

hearing.

Maneka Gandhi v. Union of India, AIR 1978

SC 597

7 Judges Mere opportunity to make

submissions on the objections is

not enough.

Mardia Chemical’s case (2004) 4 SCC

311

Doctrine of audi alteram partem.

Kishan Chand Arora v. Commissioner of

Police, Calcutta, AIR 1961 SC 705,

32

RIGHT TO BE HEARD

AIR 1959 SC 308

AIR 1966 SC 269

AIR 1971 SC 862

AIR 1974 SC 1868

S.L. Kapoor v. Jagmohan, AIR 1981 SC 136

Swadeshi Cotton Mills v. Union of India, AIR

1981 SC 818

Liberty Oil Mills v. Union of India, AIR 1984

SC 1271

Olga Tellis v. Municipal Corporation of

Bombay, AIR 1986 SC 180

33

XVII REVIEW (SECTION 114, ORDER 47, RULE 1 CPC)

Party’s name Citation Strength

of Bench

Ratio laid down

Grindlays Bank v. Central Government

Industrial Tribunal, 1980 Supp. SCC 420

Tribunals have power of

procedural review even when no

express power of review is

conferred – Doctrine of functus

officio explained – Procedural

review vis-à- vis review on merits

distinguished.

Kapurchand v. Ganesh

Dutt

AIR 1993 SC

1145

A Petition for review before the

High Court cannot be dismissed

merely because an SLP is

pending.

Tungabhadra Industries

Ltd. v. Government of

Andhra Pradesh

1964 Supreme

Court Reports,

176, Para ____

at page 184.

Filing of a SLP is no bar to hear

a review, if the review was filed

before filing of the SLP.

Meera Bhanja v. Nirmala

Kumari

(1993) 1 SCC

170

Two

Judges

Error must be apparent on mere

looking of the record without

requiring any long drawn process

of reasoning.

Parsion Devi v. Sumitra Devi.

(1997) 8 SCC 715

Two

Judges

Mistake or error apparent on the

face of record is one which is

self-evident and does not require

a process of reasoning.

Distinction between erroneous

decision and error apparent on

the face of the record discussed.

(Paragraphs 9 and 10)

Trustees of Port of

Madras v. Engineering

Construction Corpn.

(1995) 5 SCC

531

(Paras 20, 14

and 17)

Two

Judges

Error apparent on the face of

award – must be one of law

which must be discernible from

the award itself or from the

documents incorporated therein

and such error must have vitiated

the decision.

Aribam T. Sharma v.

Aribam Ishaq Sharma

(1979) 4 SCC

389

Separate and several Writ

Petitions ought to have been

filed, instead of one, cannot be a

ground for review.

Shivdeo Singh v. State of Punjab, AIR 1963

SC 1909

(Para 8)

Five

Judges

High Court enjoys power of

review of decisions rendered

under Article 226 of the

Constitution.

AIR 2002 SC

1771

Five

Judges

Scope of review/curative

Petitions.

34

Green View Tea

Industries v. Collector,

Golaghat, Assam

AIR 2004 SC

1738

SLP dismissed as withdrawn.

Review was dismissed during the

pendency of SLP. Another SLP

in challenge of the order of the

High Court passed in review not

barred by doctrine of res

judicata.

Habu v. State of Rajasthan, AIR 1987

Raj.83 (Full Bench)

Mira Banja v. Nirmala Kumari, AIR 1995 SC

455;

Aribam T. Sharma v. Aribam P. Sharma,

AIR 1979 SC 1047

REVIEW (NEGATIVE JUDGMENTS)

Patel Narshi Thakershi & Ors. v. Shri

Pradyumansinghji, AIR 1970 SC 1273;

Lili Thomas v. Union of India, AIR 2000 SC

1650;

Gram Panchayat, Kanonda v. Director of

Consolidation on Holdings, AIR 1990 SC

763;

R.R. Verma v. Union of India, AIR 1980 SC

1461;

Maj Chandrabhan Singh v. Latafat Ullah

Khan,

AIR 1979 SC 1814;

State of Assam v. G.N. Roy, AIR 1975 SC

2277;

Meher Singh v. Naunihal, AIR 1972 SC

2533;

B.N. Roy v. State of Bihar, AIR 1971 SC

1045;

Harbhajan Singh v. Karamsingh, AIR 1966

SC 641.

35

XVIII. REVIEW (ORDER 47, RULE 1 CPC/ARTICLE 137 OF CONSTITUTION)

Party’s name & Citation Strength

of

Bench

Ratio laid down

State of Orissa v. Commissioner of Land

Records, AIR 1998 SC 3067.

Review should be by the same

Judge.

Sheonandan Paswan v. State of Bihar,

(1983) 4 SCC 104.

Legal infirmity, namely, a

decision against the settled

principle is an error apparent on

the face of record and a review

can be sought on the ground that

the Court applied the wrong law.

Tungabhadra Industries Ltd. v. State of AP,

AIR 1964 SC 1372

3 Judges Rejection of SLP is no bar for a

High Court to review, provided

the review was instituted prior to

filing of the SLP.

Kapra Mazdoor Ekta Union v. Birla Cotton

Spinning & Weaving Mills, (2005) 13 SCC

777

Labour Court has no inherent

power to review its order, but

enjoys power of procedural

review when order is passed in

violation of principles of natural

justice.

Suraj Devi v. Pyarelal, (1981) 1 SCC 350 High Court cannot invoke

inherent power and review an

order when power of review is

barred by Section 362 Cr.P.C.

Budhia Swain v. Gopinath Deb, (1999) 4

SCC 396

2 Judges A Tribunal can recall an order if it

lacks jurisdiction or if the order

was vitiated by fraud or collusion

or if there has been a mistake by

it prejudicing a party or was in

violation of the principles of

natural justice, namely, without

arraigning a necessary party or

without serving notice on him.

Hamsa Ali v. State of Kerala, (2006) 7 SCC

416

Where a decision is vitiated by

fraud, review is the appropriate

remedy.

Green View Tea & Industries v. Collector,

(2002) 1 SCC 109.

(Some discussion in paragraph 7

on the scope of review).

M.M. Thomas v. State of Kerala, (2000) 1

SCC 666

Tribunal has no inherent power

of review. High Court as a Court

of record has inherent power of

review.

Amarjit Kaur v. Harbhajan Singh, (2003) 10

SCC 228

Summary dismissal of review

Petition even where relevant

judgment of the Supreme Court

was cited, held not proper.

36

Aribam T. Sharma v. Aribam Ishaq Sharma,

(1979) 4 SCC 389

3 Judges A Judicial Commissioner could

not have reviewed orders of his

predecessor as it amounted to

sitting in appeal over it.

Distinction between appeal and

review jurisdiction explained.

(paragraph 3)

Surjit Singh v. Union of India, (1997) 10 SCC

592 (para 7)

Mistake of law or patent error

ought to be corrected by review

and not by appeal.

Promoters & Builders’ Association v. Pune

Municipal Corporation, (2007) 6 SCC 143

Where there is glaring omission

or patent error, review is the

remedy.

Commissioner of Sales Tax v. Pane

Chemicals, (1995) 1 SCC 58 (Paras 11 and

13)

3 Judges Interpretation of a statute

contrary to the plain language

used therein is an error apparent

on the face of record (legal error)

and review will lie.

Ramdeo Chauhan v. State of Assam, (2001)

5 SCC 714

Review by a death convict on the

ground that at the time of the

crime he was a juvenile

dismissed with comments in very

bad taste. However, this

judgment contains a detailed

reference on the power of review

and a number of judgments have

been cited. In that sense, it is

useful.

A.R. Antulay v. R.S. Nayak, (1988) 2 SCC

602

Patel Narshi Thakershi & Ors. v. Shri

Pradyumansinghji, AIR 1970 SC 1273

Power of review is not inherent.

Lily Thomas v. Union of India, (2000) 6 SCC Review can be sought under

Article 226/32.

XIX. WRIT OF PROHIBITION

Party’s name & Citation Strength

of

Bench

Ratio laid down

Isha Beevi v. Tax Reco.off. AIR 1975 SC

2135

Whirl Pool Corpn. v. Regut of Trade Marks.

(1998)8 SCC I

Bangal immunity Co.AIR 1955 SC 661

Hari Vishnu Kamath v. Ahmed, AIR 1955 SC

233

ALTERNATIVE REMEDY IS NO BAR

37

Party’s name & Citation Strength

of

Bench

Ratio laid down

Bangal Immunity Co.AIR 1955 SC 661

ISha Beevi v. Tax Recovery .officer. AIR

1975 SC 2135

Whirl Pool Corpn. v. Registrar of Trade

Marks. (1998)8 SCC I

Venketeswaran v. Wadhwani AIR 1961 SC

1506

State of U.P. v. Mohammad Nooh AIR 1958

SC 86

Hirday Narain v. ITO AIR 1971 SC 33

XX. REVIEW (ERROR APPARENT ON THE FACE OF RECORD

Party’s name & Citation Strength

of

Bench

Ratio laid down

REVIEW VIS-À- VIS APPEAL

Rekha Mukherji v. Ashish Kumar Das, (2005)

3 SCC 427.

Relative scope. Review

application pending or allowed

against a decree – Appeal from

such original decree either during

pendency of review or after grant

of review against it – Effect of

withdrawal of review application.

In case review is granted against

a part of the original decree, an

appeal would be maintainable

against that part of the review

granted.

38

CORPORATE CRIMINAL LIABILITY/ FERA/FEMA

Party’s name Citation Strength

of

Bench

Ratio laid down

Standard Chartered Bank

& Ors v. Directorate of

Enforcement & Ors

(2005) 4 SCC 530 Corporate Criminal Liability

Standard Chartered Bank

& Ors V. Directorate of

Enforcement & Ors

(2006) 4 SCC 278 Whether Prosecution could

continue when adjudication

proceedings was result in

discharge

Seema Silk & Sarees v. Union of India, (2008)

5 SCC 580

39

XXI ) FERA & FEMA

Party’s name Citation Strength

of

Bench

Ratio laid down

Standard Chartered Bank

& Ors V. Directorate of

Enforcement & Ors

2006 4 SCC 278 Whether Prosecution could

continue when adjudication

proceedings was result in

discharge

40

XXII) WRIT OF CERTIORARI

Party’s name Citation Strength

of

Bench

Ratio laid down

What is the appropriate writ to be sought when constitutional validity of a statutory

provision is challenged?

K.K. Kochunni v. State of Madras, AIR 1959 SC 725,

Charanjitlal Choudhary v. Union of India, AIR (38) 1951 SC 41

Shyam Kishore & Ors. v.

Municipal Corporation of

Delhi & Ors

(1993) 1 SCC 22

(Para 37)

Certiorari will lie even where an

appeal is dismissed

Election Commission v.

Saka Venkatrao

AIR 1953 SC 210 Procedural technicalities of the

English law need not be

followed.

T.C. Basappa v. T. Nagappa, AIR 1954 SC

440

[An excellent judgment on the scope of

certiorari)

(Paras 5 to 11)

5 Judges A writ of Certiorari will lie

(i) to remove or adjudicate on

the validity of a judicial act;

(ii) no appeal to supervisor;

(iii) where the Tribunal has acted

without or in excess of its

jurisdiction or, in other words,

acted in ignorance or disregard

of law;

A writ of certiorari will also lie if a

Tribunal:

i) is not legally constituted;

ii) violates principles of natural

justice.

Courts in India need not be

oppressed by the limitations

under which English Courts

have exercised jurisdiction, but

need only to keep in mind the

broad and fundamental

principles.

State of U.P v.

Mohammad Nooh

AIR 1958 SC 86

Smt. Ujjambai v. State of U.P, AIR 1962 SC

621

7 Judges Certiorari will lie where an

impugned action at the hands of

an administrative or quasi-

judicial authority or judicial

authority is in violation of law

and thus without jurisdiction.

If the Tribunal is improperly

constituted or fails to observe

41

certain essential fundamentals

of inquiry, certiorari will lie.

Syed Yakub v. K.S. Radhakrishnan, AIR 1964

SC 477

(Para 8)

- do -

S. Nagaraj v. State of Karnataka, 1993

Supp.(4) SCC 595.

Hari Vishnu Kamath v. Ahmed Ishaq, AIR

1955 SC 233

7 Judges - do -

When violation of fundamental

right is anticipated, writ of

prohibition can be sought.

Conditions on which certiorari

can be sought – distinction

between certiorari and

prohibition.

M/s.Travancore Rayons Ltd v. The Union of

India and Ors. AIR 1971 SC 862

The state of Bombay(now Maharashtra), v.

Nurul Latif Khan, AIR 1966 SC 269

Smt.Meneka Gandhi v. Union of India & Ors.

AIR 1978 SC 597

Swadeshi Cotton Mills v. Union of India AIR

1981 SC 818

S.L Kapoor v. Jagmohan and Ors. AIR 1981

SC 136

Liberty Oil Mills and Ors. v. Union of India

and Ors. AIR 1984 SC 1271

Gullapalli Nageswara Rao and Ors, v.

Andhra Pradesh State Road Transport

Corporation and Ors, AIR1959 SC 308

Gullapalli Nageswara Rao and Ors, v. State

of Andhra Pradesh and Ors. AIR1959 SC

1376

J.Y. Kondala Rao and Ors. v. Andhra

Pradesh State Road Transport Corporation

and Ors. AIR 1961 SC 82

Joseph Kuruvilla Vellukunnel v. Bank of India

and Ors. AIR 1962 SC 1371

M/s.Krishna Bus Service Pvt. Ltd., v. State of

Haryana and Ors. AIR 1985 SC 1651

Hindustan Petroleum Corpn. Ltd., v.

Yashwant Gajanan Joshi and Ors. AIR 1991

SC 933

State of Karnataka v. Shree Rameshwara

42

Rice Mills,Thirthahalli AIR 1987 SC 1359

Institute of Chartered Accountants of India v.

L.K.Ratna and Ors. AIR 1987 SC 71

City Corner, v. Personal Asstt. to Collector

and Addl. District Magistrate, Nellore, AIR

1976 SC 143

State of U.P., v. Mohammad Nooh. AIR 1958

SC 86

Farid Ahmed Abdul Samad and another v.

The Municipal Corporation of the City of

Ahmedabad and Ors. AIR 1976 SC 2095

P.N.Eswara Iyer v. The Registrar, Supreme

court of India AIR 1980 SC 808

Bombay Municipal Corporation v. Dhondu

Narayan Chowdhary AIR 1965 SC 1486

Shri.Mandir Sita Ramji v. Governor of Delhi

and Ors. AIR 1974 SC 1868

K.I Shephard and Ors. v. Union of India and

Ors. AIR 1988 SC 686

COULD AN ORDER WHICH IS VITIATED FOR VIOLATION OF PRINCIPLES OF

NATURAL JUSTICE AT THE FACT-FINDING STAGE BE CURED BY A FULL-FLEDGED

APPEAL BOTH ON FACTS AND LAW IN FULL COMPLIANCE OF NATURAL JUSTICE?

WHETHER EXISTENCE OF ALTERNATIVE REMEDY OF A STATUTORY APPEAL

COULD BE A BAR WHERE WRIT OF CERTIORARI IS SOUGHT ON THE GROUND OF

VIOLATION OF NATURAL JUSTICE?

State of U.P. v. Mohmed Nooh, AIR 1958 SC

86

City Corner v. Personal Assistant to the

Collector,

AIR 1976 SC 143;

3 Judges

Farid Ahmed v. Municipal Corporation of

Ahmedabad,

AIR 1976 SC 2095;

AIR 1977 SC 747;

S.L. Kapoor v. Jagmohan, AIR 1981 SC 136;

Swadeshi Cotton Mills v. Union of India, AIR

1981 SC 818;

L.K. Ratna v. Institute of Chartered

Accountants in India,

AIR 1987 SC 71;

43

XXIII) SPEAKING ORDER

Party’s name Citation Strength

of

Bench

Ratio laid down

Travancore Rayons Ltd v.

The Union of India & Ors

1978 E.L.T (J

378)

Speaking Order

Swadeshi Cotton Mills v. Union of India, AIR

1981 SC 818

Siemens Engineering v.

Union of India

AIR 1976 SC

1785,

Para 6

Speaking order a must. (Based

on the observations in paragraph

6 of the judgment only SEGAT

was constituted, bringing an end

to Government hearing appeals

of Customs and Excise matters.

44

Balance Citations to be arranged

Party’s name Citation Strength

of

Bench

Ratio laid down

I.R.Coelho (Dead) by LR v. State of Tamil

Nadu & Ors., 2007 (1) KHC 299 = (2007) 2

SCC 1 (Decided on 11 th January, 2007)

9 Judges

CFFP Employees

Association & Ors v..

Chairman & Managing

Director & Ors

1995 Supp (3)

SCC 685

State of U.P & Ors V.

Ram Bachan Tripathi

2005 6 SCC 496

Dr. Pratap Singh & Ors v.

Director of Enforcement,

Foreign Exchange

Regulations Act & Ors

AIR 1985 SCC

989

Ram Gopal Chaturvedi v.

State of Madhya Pradesh

AIR 1970 SC 158

Narsingh Das Tapadia v.

Goverdhan Das Partani &

Ors.

2000 – AIR (SC)-

0-2496

Kailash Nath & Ors v.

State of U.P & Ors

AIR 1957 S.C

790

5 Judge

Ghanshyamdas v.

Regional Assistant

Commissioner of Sales

Tax, Nagpur

AIR 1964 SC 766

Purshotam Singh v.

Narain Singh and State of

Rajasthan

AIR 1955 Raj.

203

Maneka Gandhi v. Union

of India & Ors

AIR 1978 SC 597 Right to Hearing

Premchand Gupta v.

Director, Enforcement

Directorate

2004 (96) ECC

385 (ATFFE)

Smt Charanjit Kaur v.

Union of India & Ors

AIR 1994 SC

1491

Mohammad Yasin v.

Town Area Committee,

Jalalabad & Ors

AIR 1952 SC 115 5 Judges

S.P. Yarns v. Assistant

Director, Enforcement

Directorate

2000 – 113 –

Taxman – 0015

FERA

Sanjana M.WIG (MS) v. (2005) 8 SCC

45

Hindustan Petroleum

Corp Ltd

AIR 2004 SC 1442

PUCL RTI, AIR 1982 SC

149 SP GUPTA, AIR

1975 SC 865

242

PUCL v. Union of India

AIR 2004 SC

1442

(Para 45)

Right to information fundamental

right.

S.P. Gupta v. Union of India, AIR 1982 SC

149

State of UP v. Raj Narain (1975) 4 SCC

428

5 Judges

- do -

Satya Narain Singh v.

The High Court of

Judicature at Allahabad &

Ors.

AIR 1985 SC 308

Chhatradharilal Gangaram Subedar v.

Shyamabai Ramsewaklal Agrawal, AIR 1966

M.P. 67

Gullappalli Nageshwarao & Ors., State of

Andhra Pradesh & Ors., AIR 1959 SC 1376

The State of West Bengal v. Anwar Ali Sarkar

& another, AIR (39) 1952 SC 75

7 Judges A statute which is constitutional

on its face may be liable to be

declared unconstitutional if it in

its actual operation is otherwise.

Para 38

Himmatlal Harilal Mehta

v. State of M.P and Two

Ors, State of Madras

Intervener

AIR 1954 SC 403

46

XXIV RES JUDICATA

Dadu Dayalu Mahasabha v. Mahant Ram Niwas & Anr., (2008) 11 SCC 753

Party’s name Citation Strength

of

Bench

Ratio laid down

Green View Tea

Industries v. Collector,

Golaghat, Assam

AIR 2004 SC

1738

SLP dismissed as withdrawn.

Review was dismissed during

the pendency of SLP. Another

SLP in challenge of the order of

the High Court passed in review

not barred by doctrine of res

judicata.

Shanmuga Vel Nadar v.

State of Tamil Nadu

(2002) 8 SCC

361

2 Judges Dismissal of SLP does not

amount to merger of the order of

the Supreme Court with that of

the High Court and it is open,

therefore, for a larger Bench to

reconsider the judgment of the

Division Bench.

Precedent

Only the declarations of law by

the Supreme Court and the

reasoning alone could be

precedent.

Hosang Singh v. Union of

India (Paras 7 & 8)

AIR 1979 SC

1328

Dismissal of a Writ Petition in

limine without speaking order

does not constitute res judicata.

Where Writ Petition is dismissed

on the ground of existence of

alternative remedy, dismissal in

limine could mean only

relegating the party to the

alternative remedy.

Avtar Singh v. Jagjit

Singh

AIR 1979 SC

1911

Where a plaint is returned on the

ground of lack of jurisdiction and

no appeal is filed against that

order, no res judicata is

constituted in so far as no notice

had gone to the opposite side

and they were not heard.

Mathura Prasad v.

Dossibai

AIR 1971 SC

2355

Erroneous decision on a

question of jurisdiction cannot

operate as res judicata.

Joseph Pothen v. State of

Kerala.

AIR 1965 SC

1514 (Para 5)

(by Subba Rao,

J.)

5 Judges Writ Petition under Article 226

dismissed not on merits – Party

aggrieved can approach the

Supreme Court under Article 32

of the Constitution on the same

cause of action – There is no bar

of res judicata.

47

Daryao & Ors. v.

State of U.P.

AIR 1961 SC

1457

(Para 26)

(by

Gajendragadkar,

J.)

5 Judges If a Writ Petition is dismissed by

the High Court not on merits but

on the ground of lapses,

dismissal thereof will not cause

a bar for a Petition under Article

32 to the Supreme Court. If a

Writ Petition is dismissed in

limine, but not on merits, it will

not constitute res judicata.

When violation of fundamental

rights is alleged, rule of res

judicata will not strictly apply.

Gulabchand v. State of

Gujarat AIR 1965 SC

1153

Decision in an earlier Writ

Petition on merits - Subsequent

Writ involving the same question

and same relief is barred by res

judicata.

G.N. Nayak v. Goa

University

AIR 2002 SC 790

(by Ruma Pal, J.)

2 Judges First Writ Petition filed on the

ground of apprehended bias

dismissed as withdrawn.

Whether second Writ Petition on

allegation of actual bias

suffered, there is no bar of res

judicata – cause of action being

different.

Ashok Kumar Srivastav v.

National Insurance

Company.

AIR 1998 SC

2046 (Para 11)

(by K.T. Thomas,

J.)

2 Judges Mere dismissal of an earlier Writ

Petition will not amount to res

judicata. However, decision in

an earlier Writ Petition on an

issue raised and decided by the

Court will amount to res judicata.

However, violation of

fundamental rights is an

exception to the rule of bar by

res judicata.

Supreme Court

Employees Welfare

Association v. Union of

India.

AIR 1990 SC 334 2 Judges A final decision cannot be

sought to be re-opened on the

ground of being in violation of

fundamental rights.

(This judgment by two Judges is

in conflict with judgment of larger

Bench which says that where

fundamental rights are alleged to

be violated, there is no bar of res

judicata.

P.D. Sharma v. State

Bank of India.

AIR 1968 SC 985 Dismissal of Writ Petition in

limine by a non-speaking order

does not constitute res judicata.

Therefore, such an order of the

High Court having become final,

as no SLP against the order of

the High Court having been filed,

the original order, challenge

against which was lost in the

High Court, could still be

48

challenged in the Supreme

Court under Article 136.

MSEB v. Kalyan

Municipality

AIR 1968 SC 991 5 Judges

AIR 1968 SC

1370

2 Judges Constructive res judicata

discussed.

Gangabai v. Vijay Kumar, (1974) 2 SCC 393 2 Judges Res judicata discussed.

There is a basic distinction

between the right of suit and the

right of appeal. There is an

inherent right in every person to

bring suit of a civil nature and

unless the suit is barred by

statute one may, at one's peril,

bring a suit of one's choice. It is

no answer to a suit howsoever

frivolous the claim, that the law

confers no such right to sue. A

suit for its maintainability

requires no authority of law and

it is enough that no statute bars

the suit. But the position in

regard to appeals is quite the

opposite. The right of appeal

inheres in no one and therefore

an appeal for its maintainability

must have the clear authority of

law. That explains why the right

of appeal is described as a

creature of statute.

Workmen of Cochin Port Trust v. Cochin Port

Trust, AIR 1978 SC 1283

3 Judges Constructive res judicata

discussed.

Anemuthu Thevar v.

Alagamma

(2005) 6 SCC

2001

Constructive res judicata

discussed.

Devilal Modi v. Sales Tax

Officer, Ratlam.

AIR 1965 SC

1150

Even where violation of

fundamental rights is alleged,

res judicata cannot be

completely ignored though as a

general rule, res judicata cannot

be a bar when violation of

fundamental rights is alleged.

Amalgamated Coal Fields

Ltd. v. Janapada Sabha

AIR 1961 SC 964 Constructive res judicata, which

is a special or artificial form of

res judicata enacted by Section

11, CPC, should not generally

be applied to Writ Petition under

Article 32 or Article 226 of the

Constitution.

Sahiram v. Avtar Singh. AIR 1999 Delhi DB Dismissal of SLP by a non-

speaking order will not operate

as a bar for filing a fresh Writ

Petition in the High Court.

Brij Behari Pande v. State AIR 1997 Patna

49

of Bihar 74

Naga Bhooshan v.

Angamangayya

AIR 1968 AP 74

(Para 10)

Petition on identical facts on

merits will constitute res judicata.

AIR 1960 SC 941 Res judicata could be applicable

between two stages in the same

litigation.

Ahmedabad Manufacturing & Calico Printing

Co. Ltd. Vs. The Workmen & Anr. AIR 1981

SC 960.

Indian Oil Corporation Ltd v. State of Bihar

A.I.R. 1986 S.C. 1780

Sheoparsan Singh v. Ramnandan Singh, AIR

1916 PC 78

Lal Chand (Dead) by L.Rs. v. Radha Krishan,

AIR 1977 SC 789

50

XXV) CONSTITUTIONAL VALIDITY – WHEN POWER CAN BE EXERCISED

Party’s name Citation Strength

of

Bench

Ratio laid down

Government of A.P. v.

Laxmi Devi

(2008) 4 SCC

720

(Para 37

onwards)

When can a Court declare a

statute unconstitutional –

discussed.

Bidhan Nagar Salt

Welfare Association v.

Central Valuation Board

(2007) 6 SCC

668

Speaking order a must, if not it is

a nullity.

If a statute does not provide an

opportunity of hearing, it is

unconstitutional.

XXVI) CRIMINAL CONTEMPT BY PERJURY/FORGERY

Chandra Shashi v. Anil Kumar Varma, (1995)

1 SCC 421;

Dhananjay Sharma v. State of Haryana,

(1995) 3 SCC 757.

Making such false and reckless

submission before a Court,

based on which an application

or Writ Petition was dismissed,

amounts to interference with

administration of justice within

the meaning of Section 2(c)(iii)

of the Contempt of Courts Act,

1971.

In Re: Presidential Reference, AIR 1965 SC 745

51

DRT/DRAT

Mardia Chemicals Ltd. v. Union of India,

(2004) 4 SCC 311

Para 44

Internal mechanism.

Para 45 Adjudication by the banker.

Para 62 Appeal under Section 17 of

Securitisation Act is not an appeal

but a suit at the first instance.

Para 68 Contention of the borrower

Para 69 Contention of the Respondent

Paras 75, 76 &

77

Right of the borrower to be heard.

The secured creditor must bear in

mind the say of the borrower

before the process of recovery is

initiated.

Para 78 Borrower cannot be condemned

unheard.

“If the borrower raises any

objection or places facts for

consideration of the secured

creditor, such objection to the

notice must be considered with

application of mind and reasons for

not accepting the objection,

howsoever brief they may be, must

be communicated.

Para 83(3) The Tribunal in exercise of its

ancillary power shall have

jurisdiction to pass any stay/interim

order subject to such condition as it

may deem fit and proper to

impose.

Kalyani Sales v. Union of India, 1 (2006)

Banking Cases, 1. (DB) Punjab & Haryana

HC (D.K. Jain, C.J.)

Doctrine of election is applicable

and once an OA has been

instituted, to invoke the provisions

of the Securitisation Act, the OA

has to be withdrawn.

Allahabad Bank v. Radhakrishna Maiti, AIR

1999 SC 3426

Paras 9,10 & 11

Tribunal has wider powers than

Civil Court under CPC and the

same is not limited to granting of

stay or injunction. All that is

required is observation of

principles of natural justice.

Income-tax Officer v. Mohamed Kunjhi, AIR

1969 SC 430

The maxim Cui jurisdiction data est

ea quoqe concessa esse vindentur

sine guibus jurisdiction explicari

non potent, namely where an act

confers a jurisdiction, it impliedly

also grants the powers of doing

such acts or employing such

52

means as are essentially

necessary to its execution..

Nandini Satpati v. P.L. Dani, (1978) 2 SCC

424

(Krishna Iyer, J.)

5

Judges

The protection extends not alone

from the commencement of the

trial but right from the stage of

investigation. The compelling

testimony includes any mode of

pressure, subtle or crude, mental

or physical, direct or indirect,

employed for obtaining information.

Life Insurance Corporation of India v.

Escorts, AIR 1986 SC 1370

5

Judges

Law as to jurisdiction and power of

the RBI in the management of

foreign exchange.

Management of Nallibharat Engg. Co. Ltd. v.

State of Bihar

(1990) 2 SCC 48

Failure to give opportunity of

hearing itself will cause prejudice;

no independent evidence is

required. Pre-decisional hearing is

a must.

Authorized Officer, Indian Overseas Bank v.

Ashok Saw Mill, AIR 2009 SC 2420 (Paras

23 and 24)

The Tribunal in exercise of powers

under Sections 17(3) and 17(4) of

the Securitisation Act is entitled to

restore possession even where

sale has taken effect and the

secured asset has reached the

hands of third party.

Appeal will lie under Section 17

against any proceeding at any

stage. That means, sale notice

can be independently challenged

even where other measures under

Section 13(4) were not challenged.

Lakshmi Sankar Mills Pvt. Ltd. v. Authorized

Officer, Indian Bank, reported in AIR 2008

Madras, 181 = 2008 Ind. Law (Madras) 547

Sundaram Home Finance Ltd. v. Tahsildar,

Hosur, (2007) 2 CTC 1

Stan Commodities Pvt. Ltd. v. Punjab &

Sind Bank, AIR 2009 Jharkhand, 14

Under RBI guidelines, classification

of an account as NPA can only be

done with notice to and knowledge

of the borrower and any doubt or

dispute by the borrower ought to

be settled within one month and it

is only after such opportunity is

afforded that you could classify his

account as NPA. Failure to do so

would render such classification,

which is the sheet anchor on which

securitization measures are

founded, null and void.

Condonation of Delay

53

Naseeruddin & Ors. v.

Sitaram Agarwal

(2003) 2 SCC

577

Para 20

Statute to be construed by the

plain words used.

Doctrine of Necessity

Joseph Vellikunnel v. RBI, AIR 1962 SC 1371

Kihoto Hollohan v. Zachillhu, (1992) Supp. 2

SCC 651 = AIR 1993 SC 412

5

Judges

Speaker acting as a Tribunal

under the Anti-Defection Law is

acting as a Judicial Tribunal.

Speaker is amenable to judicial

review. Finality clause in a

statute cannot affect the power

of judicial review. Under the

Anti-Defection law, jurisdiction of

the Supreme Court under Article

136 and of High Courts under

Article 226 is excluded.

Distinction between Court and persona designate.

Municipal Corporation of Delhi v. Gurnam

Kaur, AIR 1989 SC 38

(Paras 11 and 12)

3

Judges

Judgments without reference to

the relevant provisions of the Act

are per in curium and are not

binding precedents.

Distinction between Court & Tribunal/administrative and judicial function

Harinagar Sugar Mills Ltd v. Shyam

Sunder Jhunjhunwala, AIR 1961 SC 1669

(Paras 10, 11 and 16

Constitut

ion

Bench

Distinction between Courts and

Tribunals defined.

Province of Bombay v. Khushaldas S.

Advani, AIR 1950 SC 222.

Bidhan Nagar Salt Welfare Association v.

Central Valuation Board, (2007) 6 SCC

668

Gullapalli Nageswara Rao and Ors, v.

Andhra Pradesh State Road Transport

Corporation and Ors, AIR1959 SC 308.

Thakur Sinha v. Sitamarhi Central Co-

operative Bank Ltd., AIR 1967 SC 1494.

A Co-operative Court was held to

be a Court (a decision rendered

with respect to Contempt of Court

Act), seemingly one rendered per

in curium.

Brajnandan Sinha v. Jyoti Narain, AIR

1956 SC 66

Court and Tribunal discussed.

Commissioner under Section 37 of

Public Servants Inquiry Act not a

54

Court.

Associated Cement Companies Ltd. v. P.

N. Sharma, AIR 1965 SC 1595

Even a Government could be a

Tribunal; test discussed at

paragraphs 25, 33, 38 and 42.

Trappings of a Court (Para 33).

Kihoto Hollohan v. Zachillhu, (1992)

Supp. 2 SCC 651 = AIR 1993 SC 412

Distinction of Court and Tribunal

discussed (Paras 98, 99 and 101)

Smt. Ujjambai v. State of U.P, AIR 1962

SC 1621 (Para 15)

7 Judges -do-

Province of Bombay v. Khushaldas S.

Advani, AIR 1950 SC 222 (Para 8)

-do-

Return of Plaint

Avtar Singh v. Jagjit Singh AIR 1979 SC

1911

Where a plaint is returned on the

ground of lack of jurisdiction and

no appeal is filed against that

order, no res judicata is

constituted in so far as no notice

had gone to the opposite side

and they were not heard.

Article 32

Ramesh Thapar v.

State of Madras

AIR 1950 SC 124 Existence of alternative remedy is no

bar for invoking Article 32 or Article

226 of the Constitution.

K.K. Kochunni v. State of Madras, AIR

1959 SC 725

Para 8

5 Judges - do -

Question of fact can be gone into

under Article 226 as also for the

proposition that alternative remedy is

no bar.

Writ of prohibition can be sought

when violation of fundamental right

is in dispute.

55

ARTICLES 20(2) AND 20(3) OF THE CONSTITUTION

(PROTECTION AGAINST DOUBLE JEOPARDY AND PROTECTION AGAINST SELF-

INCRIMINATION)

Party’s name Citation Strength

of

Bench

Ratio laid down

Maqbool Hussain v. State of Bombay,

AIR 1953 SC 235

(Paras 10 to 13)

5 Judges Adjudication by the Collector of

Customs under the Sea Customs

Act does not amount to prosecution

as the Collector under the said Act

is not a judicial Tribunal. Judicial

Tribunal explained.

M.B. Sharma v. Satishchandra, AIR 1954

SC 300

8 Judges Not to be compelled to be a witness

is not confined to Court Rooms, but

outside as well.

Held: Protection is available to a

person who is formally accused.

Whether such protection is available

to others, namely, persons who are

yet to be accused, kept left open.

Thomas Dana v. State of Punjab, AIR

1959 SC 375

5 Judges Ratio in Maqbool Hussain re-

affirmed. The expressions

“prosecute”, “punishment”,

“offence”, etc., explained.

Mohd. Dastagir v. Union of India, AIR

1960 SC 756

(Para 9)

To attract Article 20(3), two

conditions be met viz.

(a) must be accused of an

offence;

(b) compelled to be a witness

against himself.

Rajanarayanlal Bansilal v. Manek Firoze

Mistry

AIR 1961 SC 29

5 Judges Article 20(3) applies only to

someone who is formally accused,

unlike in the USA where such

protection extends even to civil

proceedings.

Unless you are an accused, you

cannot be asked to give evidence

and produce documents.

Effect of repeal also discussed.

State of Bombay v. Karthi Kalu Oghard,

AIR 1961 SC 1808

Full

Court

Re-affirms the ratio laid down by the

8 Judge Bench judgment in M.B.

Sharma’s case that protection under

Article 20(3) includes not merely

oral testimony in and out of Court,

but statements in writing and

documents as well.

Protection is limited to a person who

must have stood in the character of

an accused at the time when he

was compelled to make the

56

statement. If he has become an

accused later, the protection is not

available.

Protection is confined only to

evidence obtained under

compulsion.

Such protection does not include

thumb impression, sample

handwriting, signature, etc., as it

does not amount to be a witness.

Constitutional validity of Section 27

of Evidence Act upheld.

Kalavati v. State of Himachal Pradesh,

AIR 1963 SC 131

5 Judges (a) Appeal against acquittal is

continuation of prosecution.

(b) If acquitted, Article 20(2) is

not attracted.

(c) Protection under Article 20(3)

can be claimed by a co-accused, in

the sense that, confession of a co-

accused is no evidence against

another accused.

State of Gujarat v. Shyamlal Mohanlal

Chokshi, AIR 1965 SC 1251

(Paras 37 and 38)

5 Judges An accused cannot be compelled to

produce documents and no search

of documents in his possession can

be made.

Tukaram G. Gaonkar v. R. N. Shukla &

Ors, AIR 1968 SC 1050

(Para 6)

5 Judges Whether an accused summoned

can claim protection under Article

29(3) and whether in the event of

his being compelled to give

incriminating answers, can he

invoke the protection of the proviso

to Section 132 of the Indian

Evidence Act against use of those

answers in the criminal proceedings

– left unanswered as the authorities

gave an undertaking in the High

Court that they would not use such

evidence against the accused.

(MJN to research on the question

whether if evidence is taken in

violation of Article 20(3), could that

evidence be used against?)

Rameshchandra Mehta

v. State of West Bengal

AIR 1970 SC

940

(Paras 11 and

14)

Evidence collected by the Sea

Customs Officer by examining an

accused before a FIR is lodged is

admissible – Article 20(3) is not

attracted.

Collector of Customs v.

L.R. Melwani

AIR 1970 SC

962

Article 20 – Doctrine of estoppel

explained.

57

Res judicata pro veritate accipitur

applicable to both civil and criminal

proceedings. Yet, imposition of

penalty by Collector of Customs

was found to be not amounting to a

prosecution, as Collector of

Customs is not a Judicial Tribunal.

Notes (for MJN):

(1) Research content and scope

of the concept of autrifois acquit;

(2) Get copies of Pritam Singh v.

State of Punjab (AIR 1956 SC 415)

and N.R. Ghosh v. State of West

Bengal (AIR 1960 SC 329).

Ramanlal Bhogilal Shah v. D.K. Guha,

AIR 1973 SC 1196

5 Judges Article 20(3) is not merely confined

to Court Room re-stated.

Also re-affirmed that once you are

an accused, you cannot be

compelled to give evidence to any

investigating agency, in the present

case, to the Enforcement

Directorate.

The judgment, however, states that

the question whether one could be

compelled to give evidence if no FIR

is filed is left open, although that

was decided in the negative in AIR

1961 SC 29 & AIR 1970 SC 940.

Nandini Satpati v. P.L. Dani, AIR 1978

SC 1025

(Para 55)

Right of silence: Yes or No.

Non-incriminatory facts can be

asked. (Paras 42 and 43).

Benefit must go in favour of the right

of silence. What is compulsion –

discussed. (Paras 53 & 55).

Legal consequence following upon

refusal to answer cannot constitute

a compulsion. There must be a

compulsion of physical, physic,

atmospheric, etc.

S.V. Venkatram v. Union of India, AIR

1954 SC 375

(Paras 5 and 6)

5 Judges Prosecution and punishment

discussed.

1. Vedaprakash Sikri v. Union of India, 42 (1990) BLT 295

2. Superintendent of Customs v. S.V. Tandel, 1991 (35) ECR 209

3. Sadiq Fateh Ali v. Union of India, 1992 (41) ECR 591

4. Bhanabhai Khalpabhai v. Collector of Customs, 1996 (62) ECR 500 (SC)

5. Union of India v. N.S.R. Krishnaprasad, 1997 (93) ELT 324 (SC)

58

WHAT IS THE LEGAL CONSEQUENCE AND EFFECT OF PENDENCY OF AN

APPLICATION FOR RENEWAL OF LICENCE/EXTENSION OF TIME ETC., WHERE NO

ACTION IS TAKEN BY THE AUTHORITY? COULD IT BE DEEMED IN LAW THAT THE

APPLICATION IS ALLOWED OR IS NOT REJECTED?

Cheran Transport Co.

Ltd. v. Kanan Lorry

Service

AIR 1977 SC

1564

(Ratio to be dictated)

D. Nataraja Mudaliar v.

State

Transport Authority

AIR 1979 SC

114

- do -

NULLITY OF AN ORDER OR DECREE

Ridge v. Baldwin, 64 Appeal Cases 40 An order passed in violation of

natural justice is a nullity.

Nawabkhan v. State of

Gujarat

AIR 1974 SC

1471

(Paras 10, 12,

19 & 20)

An order passed in violation of

natural justice is a nullity, stillborn

and is of no consequence.

The question whether a null and void

order could be disobeyed on the

self-determined nullity – not

answered.

State of Haryana v. Haryana Co-

operative Transport Ltd., AIR 1977 SC

237

The nullity of an order or decree

passed by an incompetently

constituted Tribunal cannot be

protected even by express statutory

provision, holding that defect in the

constitution of the Tribunal cannot be

sought to be challenged on that

ground. On this point, the

Constitution Bench judgment of the

Supreme Court in Kihoto Hollohan v.

Zachillhu (1992) Supp. 2 SCC 651:

AIR 1993 SC 412) is absolutely

relevant.

S.L. Kapoor v. Jagmohan, AIR 1981 SC

136

(Paras 19 & 24)

3

Judges

Merely because facts are admitted, it

does not follow that interest of justice

need not be observed. Non-

observance of interest of justice is

itself prejudice and proof of prejudice

independently of proof of denial of

interest of justice is unnecessary.

John v. Reef 1971 Ch. 345

(at 402)

Even when something is obvious,

interests of justice cannot be denied.

Farid Ahmed v.

Municipal Corporation

of Ahmedabad

AIR 1976 SC

2095

(Para 25)

An order which is null and void for

violation of interests of justice cannot

be got rid of its invalidity by approval

by an appellate body.

59

Rungta Sons Pvt. Ltd. v. Collector of

Customs, Visakapatinam, 1986 (23) ELT

14 (Cal)

- do -

Institute of Chartered

Accountants of India

AIR 1987 SC 7

(Para 17)

- do -

Leary v. National Union of Vehicle

Builders, (1971) 1 Ch.34

- do -

60

ERROR APPARENT ON THE FACE OF RECORD

Syed Yakub v. K.S.

Radhakrishnan

1964 SC 477

(Para 8)

What is an error apparent on record,

namely,