Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 12
PETITIONER:
SAMARIAS TRADING CO. PVT. LTD.
Vs.
RESPONDENT:
S. SAMUEL & ORS.
DATE OF JUDGMENT09/11/1984
BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
SEN, A.P. (J)
VENKATARAMIAH, E.S. (J)
CITATION:
1985 AIR 61 1985 SCR (2) 24
1984 SCC (4) 667 1984 SCALE (2)741
CITATOR INFO :
R 1985 SC 330 (1)
R 1986 SC 614 (6)
ACT:
Practice and Procedure-oral application made to a Judge
in Chambers- No. written application filed-orders passed-
Neither facts nor question of law reasons given in the
order-Propriety of.
A sitting in Chambers-When should be held.
HEADNOTE:
A single Judge of the Calcutta High Court, on an oral
application made in his chamber on behalf of a person
professing to be respondent No. 1, and on giving an oral
undertaking to make a written application within 4 days,
issued an interim order directing maintenance of status quo
in regard to an auction of a liquor shop held in favour of
the appellant. The said order did not make any attempt to
indicate even briefly the facts, the question of law, if
any, raised before the Judge and the reasons which prompted
him to make such an interim order. On receiving the
information about the said order, the appellant contacted
the High Court and got the information that the subsequent
writ petition filed by respondent No. I under Article 226
would be taken up for orders at 2. 30 p.m. On 3. 4. 1984.
While the representatives of the appellant and their
advocate were wailing in the court, they came to know that
the matter had been mentioned in the chamber of the learned
Judge who had earlier granted stay and that the order of
statues quo had been extended until further orders. The
appellant told the learned Single Judge that they were
waiting in the Court and . were not informed that the matter
was going to be mentioned in his chamber and in view of this
they requested the learned Judge to reconsider his order.
But, the Judge declined to do so. There upon the appellant
filed a Writ Appeal. The Writ Petition filed by respondent
No. I along with the Writ Appeal of the appellant were heard
together by a Division Bench which set aside the auction and
directed that a fresh auction be held on 19th April 1984.
Aggrieved by the said order, the appellant has filed the
present appeal.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 12
Disposing of the appeal,
^
HELD: There is hardly any justification for the
entertainment of an oral application and the issuance of an
interim order with no record whatever of what was submitted
to the court of the reasons for the order made-by the court.
To permit a procedure by which oral applications may be made
and internal orders obtained without any petition in
writing, without any affidavit having been sworn to as prima
facie proof of allegations and without any record before
kept before the court may lead to very serious abuse of the
process of the court. Therefore, this Court expresses its
disapprobation and forbids the
25
practice of entertaining oral applications by any court in
matters of consequence A without any record before it. [29E-
G]
(2) This Court does not mean to suggest that oral
application may never be made. Often during the course of
the hearing of a case it becomes necessary to make
applications of a formal nature and such application are
permitted by the Presiding Judge. But in all such cases the
court is already seized of the principal matter or dispute
and there is a record pertaining to it before the 13 court.
Again, this Court does not mean to suggest that other urgent
oral applications may never be made. If urgent interim
orders are imperative, at least skeletal applications
setting out the bare facts and the questions invoked should
be insisted upon. A detailed application could be permitted
to be filed later. If the matter is so urgent as not even to
brook any insistence upon a written application, the judge
should at least take The trouble and the care to record in
his order the facts mentioned to him and the submissions
made to him. It is essential that there be a contemporaneous
record. Otherwise the court ceases to be a court of record.
[29G-H; 30A-B]
(3) A sitting in chambers could be held when both sides
are represented and the sittings are held openly so that
members of the public, if they desire to attend, may have
access even in the chamber. To grant interim orders on oral
applications in chambers when the judge is otherwise sitting
in open court for other matters would seriously reflect on
the fairness of the procedure adopted by the courts and may
have the unpleasant effect of undermining public confidence
in courts. A public hearing is one of the great attributes
of a court, and courts of this country are therefore
required to administer justice in public. Otherwise, there
is a risk that justice may even be undone. It is not ’as a
matter of policy but as a matter of law’ that The hearing of
a cause be public except in the limited class of cases. That
rule was violated by the learned Single Judge in this case.
[3lE;H; 32A.B]
Naresh Shridhar Mirajkar & ors. v. State of Maharashtra
JUDGMENT:
PC 246 referred to.
(4) In the instant case the Court allowed the reauction
to be held on 19th April 1984. Since the highest bidder in
the reauction did not deposit the necessary amount in time
as required under the Rules the Court set aside the
reauction. As the appellant offered to take the shop on
lease for a sum of Rs. 30 lacs and the Additional Solicitor
General appearing for the administration of Andaman and
Nicobar Islands accepted the offer. The Court sanctioned the
lease in favour of the appellant on the condition of making
the necessary deposit within 10 days from that day. [36B; F-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 12
G]
&
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4416 of
1984
Appeal by Special leave from] the Judgment and order
dated 4th April, 1984 of the Calcutta High Court in F. M. A.
T. No. 992 of 1983
26
Vasanta Pai, Ms. S. Vaidalingam and P. J. George for
the Appellant.
Bina Gupta for the respondent.
K. G. Bhagat’ Addl Sol. General. R. N. Poddar and M. N.
Krishnumani, for the Respondent.
R. Karanjawala and Miss M. Karanjawala for the
applicant in Intervention appln.
K. Parasaran, Atty. General and D. N. Sinha at request
of Court.
The Judgment of the Court was delivered by
CHINNAPPA REDDY, J. "Curiouser and curiouser", Alice
would have certainly exclaimed with us had the mischievous
state of affairs of the present case come to her notice. We
confess that the state of affair is but the inevitable
consequence of a most curious procedure said to be followed
over the years by the Calcutta High Court, a practice which
we are happy to say, no other High Court in the country
follows, a practice which do put in the mildest terms is
unhealthy and likely to lead to harm and abuse and a
practice which we now propose to forbid in the exercise of
our powers under Art. 141 of the Constitution. The practice,
the consequences and our precept will reveal themselves as
we proceed to state the facts. We may mention at the Cutset
Act in response to our invitation the learned Attorney
General very graciously addressed us and indeed made
forceful submissions. We are grateful to him to his valuable
assistance.
An auction of the right to sell liquor at Rangat,
Andaman Islands was held on 15. 2. 84 by the Deputy
Commissioner, Port Blair. One B. K. Hariwat was the highest
bidder. M/s Samarais Trading Co. Pvt. Ltd. having an office
at Port Blair, the petitioner before us in the Special Leave
Petition, was one of the participants in the auction but not
S. Samual, S/o Swami Das Pillai, 12, Cathral Road, Madras,
who figures before us as the first respondent. As B. K.
Hariwat did not deposit fifty per cent of the license fee as
clause 14 of the terms and conditions of the auction, the
sale was not confirmed and the shop had to be auctioned
again. The second auction was held on 28. 3. 1984. At this
auction M/s Samarias Trading Co. Pvt. Ltd. was the highest
bidder. The bid was for a
27
sum of Rupees 25 lakhs. S. Samuel also participated in the
auction A but his bid was just over Rupees 17 Lakhs only.
The highest bidder (M/s Samarias Trading Co. Pvt. Ltd.)
deposited sum of Rs. 10,000, 2,50,000 and 9,90,000 on 29. 3.
1984. 28. 3. 1984 and 29. 3. 1984 respectively. The sale was
confirmed and shop was awarded to M/s Samarias Trading Co.
Pvt. Ltd. The license was to enure for the period 1. 4. 1984
to 31. 3. 1985. In the meanwhile, things moved at Calcutta
on 30. 3. 1984. When the Court was about to rise for the day
Shri Shankardas Banerjee Senior Advocate mentioned to a
learned Single Judge of the Calcutta High Court (Shri
Justice Pyne) that he desired to move an application before
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 12
the judge in his chambers after the court rose. The learned
judge granted leave and accordingly Sarvashari S. D.
Banerjee, Ashoke Kumar Ganguly and K. K. Bandopadhyay,
learned Advocate purporting to appear on behalf of a person
professing to be S. Samuel moved the learned Single Judge of
the Calcutta High Court in his chambers under Art. 226 of
the Constitution and obtained an ex-parte order in the
following terms:-
"On the oral application of Mr. S. D. Banerjee and
upon his undertaking to move application by Tuesday
next there will be an order as follows.
The respondents are directed to maintain status quo
in respect of the liquor shop at Rangat in Middle
Andaman and not to proceed on the basis of the alleged
liquor auction held on 28. 3. 1984. The order will
remain in force till Tuesday next. Let a plain copy
countersigned by Asstt. Registrar (Court) be given to
the learned Advocate to the petitioner.
Sd/R. N. Pyne."
The remarkable fact worthy of immediate attention is
that there was no written application before the learned
Judge. The order of the learned Judge was made on an oral
application and makes not the slightest attempt to indicate
even briefly the facts told him, the question of law, if
any, raised before him and the reasons which prompted him to
make the interim order that he did. All that we can gather
from the proceedings and the record of the court is that
some oral application was made, an oral undertaking was
given to make a written application within four days and an
interim order was issued by the court-directing the
maintenance of status quo in regard to an. auction of liquor
shops already held.
28
The order does not disclose that the learned Single Judge
was aware that the bid was for such a large amount as Rs. 25
lakhs, that at least Rupees Twelve and half lakhs would have
been deposited by the time the order was made and that the
license itself was to take effect from 1. 4. 1984. What was
to happen to the amount already deposited ? Who was to run
the liquor shop from 1. 4. 1994 ? What security had been
taken from the petitioner to protect the revenue and the
other respondents ’? We get no indication from the order. In
fact the order made no provision to protect any one from any
resulting mischief. And all this on an oral undertaking
given by an advocate that a petition would be filed on
behalf of a party whose very existence we now find is
doubtful, as we shall have occasion to point out hereafter.
No record, not a scrap of paper, was filed into court at
that stage and no contemporaneous record was prepared by
anyone containing the barest allegations constituting the
foundation of the oral application that was actually made,
the written application that was proposed to be filed and
the interim order issued.A most curious procedure indeed for
a court of record to follow ! And, a situation where a judge
would have to turn witness if any dispute arose subsequently
as to what the allegations were and shy the judge made the
order ! Shri S. S. Ray, who appeared before us at some
stages of the case, informed us that a practice of this
nature of obtaining interim orders on oral applications
subject to undertaking being given proposing to file written
applications later, had always been in vogue in the Calcutta
High Court. It was a matter of great surprise to us that a
court of justice and at that, a court of record, should have
been following such a practice, The learned Attorney General
informed us that such a practice was not followed in any
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 12
other High Court and he placed before us substantial and
compelling reasons vigorously deprecating such a practice,
reasons which have found favour with us. Shri Lal Narain
Sinha, former Attorney General, who practiced for a
considerable length of time in the Patna High Court which
generally inherited, if we may use such an expression, the
practice and procedure of the Calcutta High Court and who
happened to be present before us at another stage of the
hearing of the cases and whose assistance we sought and for
which we are grateful to him told us that in his long
experience he was not aware of any such-practice and that
such a practice was never followed in the Patna High
Court..................................... We our selves are
personally familiar with the practice followed in the
Madras, Karnataka, Andhra Pradesh, Madhya Pradesh and
29
Rajasthan High Courts and we can assert that such a practice
is not heard of in these courts. Some counsel from Bombay
who . were present before us also told us that no such
practice is followed in their High Court. We do not have the
slightest doubt that, if the practice exists any where, it
is a most unwholesome practice, likely to lead to vicious
and pernicious results. It is a practice to be strongly
deprecated, a practice reminiscent of the feudal days when
the French nobility could procurea lettre de cachet under
the Sovereign’s seal authorising a subject’s imprisonment
with out trial and without mention of any reason. It is a
practice which strikes at the very root of the system of
open and even handed justice as we know it and the sooner it
is abandoned the better for the administration of justice.
We express our disapprobation and forbid the practice of
entertaining oral applications by any court in matters of
consequence without any record before it. We do not mean to
suggest that oral application may never be made or
entertained by a Court. Far from the contrary. For example,
all applications for adjournment are generally made orally.
Often, during the course of the hearing of a case it becomes
necessary to n make applications of a formal nature and such
applications are permitted by the Presiding judge. But in
all such cases the court is already seized of the principal
matter or dispute and there is a record pertaining to it
before the court. But we hardly see any justification for
the entertainment of an oral application and the issuance of
an interim order with no record whatever of what was
submitted to the court or the reasons for the order made by
the court. To permit-a procedure by which oral applications
may be made and interim orders obtained without any petition
in writing, without any affidavit having been sworn to as
prima facie proof of allegations and without any record
being kept before the court may lead to very serious abuse
of the process of the court. In fact, we have come across
instances in the past where the Calcutta High Court had
exercised jurisdiction in matters in which no part of the
cause of action arose within its jurisdiction, a situation
which would surely not have arisen if a written and not an
oral application had been made. Again, we do not mean to
suggest that other urgent oral applications may never be
made. If someone is going to be deported in a few minutes or
if some grossly inenquitous act is about to be perpetrated
and any delay would result in the fait accompli of a
monstrosity, urgent oral applications may be moved and
urgent interim order issued. If urgent interim orders are
imperative, at least skeletal applications setting out the
bare facts
30
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 12
and the questions involve(1 should be insisted upon. A
detailed application could be permitted to be filed later.
Surely a Court would be in a more advantageous position with
something in writing from a party who can take
responsibility for the statements made than an oral
submission based on oral instructions from "God knows who".
If the matter is so urgent as not even to brook any
insistence upon a written application, the judge should at
least take the trouble and the care to record in his order
the facts mentioned to him and the submissions made to him.
It is essential that there be a contemporaneous record.
Otherwise the Court ceases to be a court of record. After
all there are always two sides to a picture. In the absence
of a petition in writing, in the absence of an order
containing a narration of the facts and the reasons for the
orders, what is an affected person to do ? What allegation
is he supposed to meet ? How is he to avert the mischief and
damage which may result from the order ? Is he to await the
pleasure of the petitioner who having obtained an interim
order is naturally interested in not filing his written
petition till the very last minute so as to prolong the life
of the interim order and the mischief. One may very well
imagine a case where a party instructs an Advocate to move
an oral application before a Judge, obtains an interim order
and disappear from the scene without filing any regular
petition. What is the under taking worth in such an event ?
The facts of this very case, we shall presently point out,
have led to such an abuse.
To resume the Stranger-than-fiction story, on 30th
March 1984 itself, Shri K.K. Bandhopadhyay, Advocate,
Calcutta sent a telegram to the Deputy Commissioner,
District Andaman, Port Blair. informing him about the order
of stay granted by the Calcutta High Court. The Deputy
Commissioner duly informed M/s Samerias Trading Co. Pvt.
Ltd. about the stay granted by the Calcutta High Court.
immediately on receipt of the information, the
representative of M/s Samarias Trading Co. Pvt. Ltd. and
their Advocate went to Calcutta on 2.4. 1984 where they
obtained confirmation that a learned Single Judge of the
Calcutta High Court had made an order such as claimed by
Shri K.K. Bandhopadhyay in his telegram. M/s Samarias
Trading Co. Pvt. briefed a senior Advocate, Shri Saktinath
Mukherjee to appear before Shri Justice Pyne on 3.4.1984.
The information was that the writ petition would be taken up
for orders at 2.30 P.M. On 3.4.1984. While the
representative of M/s. Samarias Trading Co. Pvt. Ltd and
their advocate
31
were waiting in the court, they came to learn that the
matter A had been mentioned to Shri Justice Pyne in his
chamber by Shri Bhola Nath Sen the Senior Advocate
representing Mr. S. Samuel and that the order of status quo
had been extended until further orders. The representative
of M/s Samarias Trading Co. Pvt. Ltd. and their advocate and
the Deputy Commissioner of Andamans, all of whom were
waiting in the Court were not told that the matter was going
to be mentioned in the learned Judge’s chamber. As soon as
they came to know about the continuance of the order of
status quo they requested Mr. Justice Pyne to re-consider
the order but the learned judge declined to do so.
Interrupting our narrative here for a momemt, we are
once again constrained to comment on the peculiar procedure
that was adopted in the case. The reason, we are told, for
moving the application in the chamber of the learned judge
instead of in open Court was that Mr. Justice Pyne was
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 12
sitting on the original Side in Court and so the application
which had to made on the Appellate Side had to be moved in
his Chamber. We are unable to understand why it should be so
and why the application could not be moved in open court. A
sitting in chambers could be held when both sides are
represented and the sittings are held openly so that members
of the public, if they desire to attend, may have access
even in the chamber. To grant interim orders on oral
application in chambers when the judge is otherwise sitting
in open court for other matters would seriously reflect on
the fairness of the procedure adopted by the courts and may
have the unpleasant effect of undermining public confidence
in courts. Sometimes when a learned judge is sitting in a
Division Bench or a Full Bench, some application may have to
be made to him individually in which case permission is
always sought in open Court to move the application in the
chamber. The Registry then prepares a special list, puts it
up on the notice board and before and before the Judge’s
chamber and also circulates a copy to the Bar Association.
This procedure is followed in some High Courts and if such a
procedure is followed then alone can we keep up the high
tradition of open justice. A public hearing is one of the
great attributes of a court, and courts of this country are
therefore require to administer justice in public.
Otherwise, there is a risk that justice may even be undone.
As most admirably expressed by Fletcher-Moulton L.J. in
Scott v. Scott Courts of Justice who are the guardians of
civil liberties, ought
32
to be doubly vigilant against encroachment by themselves. It
is not as a matter of policy but as a matter of law’ that
the hearing of a cause he public except in the limited class
of cases with which we are not now concerned. Th It rule was
violated by the learned Single Judge in this case.
After all the administration of justice is a vital
concern first of public more than any private party, the
public has a right to present in court and watch the
proceeding and its conduct except in the very rare cases
where the very cause of advancement of justice requires that
proceeding be held in camera. In Naresh Shridhar Mirajkar &
ors. v. State of Maharashtra & Anr.(1) it was observed by
this Court as follows:-
"It is well-settled that in general, all cases
brought before the Courts, whether civil, criminal or
others, must be heard in open Court. Public trail in
open court is undoubtedly essential for the healthy,
objective and fair administration of justice. Trial
held subject to the public scrutiny and gaze naturally
acts as a check against judicial caprice or vagaries,
and serves as a powerful instrument for creating
confidence of the public in the fairness, objectivity,
and impartiality of the administration of justice.
Public confidence in the administration of justice is
of such great significance that there can be no two
opinions on the broad proposition that in discharging
their functions as judicial Tribunals, courts must
generally hear causes in open and must permit the
public admission to the court-room. As Bentham has
observed:
"In the darkness of secrecy sinister interest, and
evil in every shape, have full swing. Only in
proportion as publicity has place can any of the checks
applicable to judicial injustice operate. Where there
is no publicity there is no justice. Publicity is the
very soul of justice. It is the keenest spur to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 12
exertion, and surest of all guards against improbity.
It keeps the Judge himself while trying under trial (in
the sense that) the security of securities is
publicity". (Scott v. Scott)
In Mc pherson v. Mc pherson, (2) the Judicial Committee
observed
(1) [1966l 3 s.C.R 744.
(2) AIR 1936 PC 246.
33
"Moreover the potential presence of the public almost
necessarily invests the proceedings with some degree of
formality. And formality is perhaps the only available
substitute for the solemnity by which, ideally at all
events such proceedings,...... should be characterised.
That potential presence is at least some guarantee that
there shall be ascertain decorum of procedure These are
some of the considerations which have led their
Lordships to take a more serious view the absence of
the public from the trial of this (divorce) action that
has obtained in the Courts below. influenced by them
their Lordships have felt impelled to regard the inroad
upon the rule of publicity made in this instance-
unconscious thought it was-as one not to b.. justified
and now that it has been disclosed as one that must be
condemned so that it shall not again be permitted."
To resume the narrative M/s Samarias Trading Co. Pvt.
Ltd. immediately filed a Writ Appeal under the Letters
Patent before the Division Bench consisting of Mr. Justice M
M. Dutt r. and Mr. Justice Ajit Kumar Sen Gupta. The matter
was mentioned before the Division Bench at 3 4S l’.M. By
consent of parties the Writ Appeal filed by M/s Samaries
Trading Co. Pvt. Ltd. and the Writ Petition filed by Samuel
were both directed to be listed for hearing b(fore them on
4. 4. 1984. With great difficulty M/s Samarias Trading Co.
Pvt. Ltd. were able to get a copy of the writ petition at
that stage. The Division bench disposed of both the writ
petition and writ appeal finally on 4 4. 1984 itself. The
order of Division Bench was in the following terms:
"By consent of parties, we treat the appeal as on
day’s list. As prayed for by the learned Advocates for
the parties, we also treat the Writ Petition as on
day’s list.
After hearing the learned Advocates for the parties
and after considering the facts and circumstances of
the case, we are of the view that the auction for
vending of liquor that has been held should be set
aside. Accordingly, we set aside the auction and direct
the Deputy Commis-
34
sioner of Andaman and Nicobar Islands to hold a fresh
auction on the basis of the new terms and conditions
that have already been circulated, being annexure to
the Writ Petition. The auction will be held on the
19th, April, 1984 at 11 A. M. at the Conference Hall,
Deputy Commissioner’s office, at Port Blair. The
reserved price for the auction of the liquor shop is
fixed at Rs. 30,00000 (thirty lacs). It must he made
clear that the period for which the auction of the
liquor shop will be held will be from 22nd April,1984
till 31st of March, 1985.
The auction will be advertised once in the Statesman
in Calcutta and once in the Indian Express in Madras at
least five days before the auction.
In the event the reserved price of rupees thirty lacs
is not bid, in that case, the writ petitioner
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 12
undertakes to this Court that he will take the license
at the reserved price of rupees thirty lacs and in that
event the appellant under takes to this Court not to
carry on the business of liquor after the 21st of
April, 1984.
The participants in the bid will be at liberty to
take with them their respective Advocates
The appellant shall be liable to pay to the
Administra- tion the proportionate license fee for the
days in the month of April upto 21st of April, 1984
during which he will carry on the business of liquor on
the basis of his offer already made, that is, Rs.
2500000 (Twenty five lacs) for one year. The Deputy
Commissioner is directed to refund to the appellant
the amount of the deposit which he has made in respect
of the disputed auction loss the proportionate license
fee for the days for which he will carry on business in
the month of April upto 21st April, 1984 immediately
the day on which the appellant starts vending liquor.
Further, the Deputy Commissioner shall issue necessary
orders enabling the appellant to carry on the liquor
business till 21st April, 1994.
35
The appeal and the writ appeal are disposed of as
above. There will be no order for costs.
The appellant does not admit the allegations made in
the writ petition.
Let plain copies of this order countersigned by the
Assistant Registrar (Court) he given to the learned
Advocates for the parties".
On the next day, the order was modified as follows:-
This matter has been mentioned by both the parties
for the purpose of rectifying one clerical mistake. It
is directed in modification of our order dated April, 4
1984 that in the event the reserve price of Rs.
30,00000 (thirty lacs) is not bid, in that case, the
writ petitioner undertakes to this Court that he will
take the license at the reserved price of 30, 00000
and, in that case, the appellant undertakes to this
Court not to carry on the business of liquor at Rangat,
Middle Andmans, pursuant to the existing license after
the 21st April, 1984. If, however, any new license is
granted to the appellant pursuant to the auction that
will be held on the 19th April, 1984, the appellant
will, of course, be able to carry on the business of
liquor at that place upto 31st March, 1985.
Our order dated 4th April, 1984 is modified to the
above extent and the rest of the said order will
stand".
Aggrieved by the order of the Calcutta High Court M/s
Samarias Trading Co. Pvt. Ltd. filed the special leave
petition out of which the present appeal arises on 11. 4.
1984. One George Joseph claiming to be "working for gain
with Respondent No. 1, Shri Samuel" filed a counter-
affidavit purporting to be on behalf of Respondent No. 1. At
the first hearing of the special leave petition on 17.4.
1984, Shri S. S. Ray, Senior Advocate, appeared for the
respondent No. 1. On that day, the learned counsel appearing
for the M/s Samarias Trading Co. Pvt. Ltd. produced before
us an affidavit dated 16. 4. 1984 purporting to be that of
S. Samuel in which he disclaimed that he ever instructed any
one to file any writ peti-
36
tion in the Calcutta High Court on his behalf. This
affidavit appeared to destroy the very foundation of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 12
order of the Calcutta High Court. The genuineness of the
affidavit was however, disputed by Shri George Joseph, who
Was present in court and S. S. Ray, senior advocate
appearing on behalf of S. Samuel. In that situation we
directed the issue of notice to all parties and bound over
George Joseph to appear before us at the next hearing. We
directed that S. Samuel should be present before us at the
next hearing. We also directed that the re-auction, as
ordered by the Calcutta High Court, should be held on April
19, 1984, but that the sale should not be confirmed. The
matter came before us again on April 26, 1984. We were told
that the re-auction had fetched a bid of Rs. 36 lakhs and 80
thousand . We were also told that because of our direction
that the sale should not be confirmed, the amount required
to be deposited within 48 hours could not be deposited. We,
therefore, directed the highest bidder to deposit the amount
required to be deposited under the rules on or before April
30,1984. Fresh notices were issued to S. Samuel and we
instructed the Registry to mention in the notice that if
Samuel failed to appear at the next hearing, a non-bailable
warrant would be issued for his arrest. We also issued a
notice to Dr. D. K. Banerjee, Advocate who prepared the
affidavit filed by Mr. S. Samuel, in the Calcutta High Court
to appear before us on may 3, 1984. George Joseph was bound
over to appear before us. He was also directed to file an
affidavit setting out the full facts of the case which were
within his knowledge. At the next hearing on May 3, 19..4,
we were informed that Subramaniam had breached the
undertaking given to us on April 26, 1984 that he would
deposit the amount required to be deposited by the rules
before April 30, 1984. We, therefore, had no option but to
set aside the auction.. Fortunately the petitioner, M/s.
Samarias Trading Co. Pvt. Ltd. offered to take the shop on
lease for a shop of Rs. 30 lakhs and the Additional
Solicitor General appearing for the administration of the
Andaman and Nicobar Islands accepted the offer. The lease
was sanctioned by us subject to the petitioner making the
necessary deposit within 10 days from that day.
On August 7, 1984, George Joseph failed to appear
before us notwithstanding that he had executed a bond
undertaking to be present before us. We therefore, directed
the issue of a non-bailable warrant against him for his
production before us on August 23, 1984 Mr. Samuel was also
bound over to appear before us on August
37
23, 1984. On that day, Shri K.K. Bandopadhyay filed a
statement before us seeking to explain the circumstances
under which he appeared before Mr.Justice Pyne to assist
Shri Ashok Kumar Ganguly. He is a junior advocate working in
the chambers of Shri Mahitosh Majumdar at whose instance it
was that he was asked to assist Shri A.K. Ganguly. He was
told that Shri S.D. Benerjee, senior advocate, would make an
oral application. He met a group of people, one of whom
claimed to be S. Samuel. A consultation was held by Shri
A.K. Ganguly and the gentleman holding himself out as Samuel
with Shri S.D. Banerjee in his presence in the court
premises at about 3.15 p.m. On the same day. Thereafter Shri
S.D. Banerjee entered the court room of Mr. Justice Pyne and
moved an unlisted motion before the hon’ble judge at 4.00
p.m. when the court was about to rise. Shri S.D. Banerjee
sought the permission of the hon’ble judge to move the
matter in the chamber of the hon’ble judge by way of an oral
application. Leave was granted and the application was moved
before the learned judge in his chamber at 4.10 p.m. Shri
A.K. Ganguly and Shri K.K Bandyopadhyay appeared along with
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 12
Shri S D. Banerjee. That evening the gentleman who held
himself out as S. Samuel and two or three others met Shri
K.K. Bandyopadhyay and the latter requested Shri M. Lahiri,
advocate to draft a writ petition. The two of them prepared
the writ petition and got it ready for filing on April
3,1984. S. Samuel also handed over a Vakalatnama to him. On
3rd, the said gentleman appeared before the oath
Commissioner and the papers were duly lodged as Mr. Justice
Pyne was sitting on the original side on April 3,1984
according to Shri Bandyopadhyay. The oral application had to
be moved in the chamber of the learned judge. Accordingly,
Shri B.N.Sen, senior counsel, moved the application assisted
by Shri Lahiri and Shri Bandyopadhyay. Later the matter was
mentioned in court on behalf of M/s. Samarias Trading Co.
Pvt. Ltd. before the Division Bench and an oral prayer was
made for suspending the order of Mr. Justice Pyne. Both the
writ petition and the appeal were directed to be listed on
the next day.
As we thought it imperative that George Joseph should
be present before us, we adjourned the matter to August
23,1984 for his production. On August 23,1984, when the
matter was next taken up, George Joseph continued to be
absent and a non-bailable warrant was issued for his arrest
and production on September 11, 984. Mr. Samuel was also
bound over to be present in the court
38
on September 11, 1984. We also now have before us the
affidavi-
ts of S/Shri S. D. Banerjee, B. N. Sen, M. Mazumdar and A.
K. Ganguly of the Calcutta Bar explaining the facts and
circumstances pertaining to the proceedings that took place
in the Calcutta High Court. Their affidavits which
confirming the facts already narrated by us, disclose that
none of them personally knew Samuel, as indeed one may not
expect an advocate to know every client of his personally.
They were like others, taken for a ride, if one may be
permitted to use so common an expression. Their affidavits
only emphasise what we have already said about the
undesirability of making oral applications of consequence
before courts with nothing placed in the court’s record to
vouch for the authenticity of the facts forming the basis of
the representations made to the court, etc. So far as this
appeal is concerned, there is nothing further to be done by
us we have now sanctioned the lease of the liquor shop in
favour of the appellants for the year April 1, 1984 to March
31, 1985. We are, however, informed by the petitioner that
though the lease has been confirmed in their favour from
April l, 1984 to March 31, 1985 for a sum of Rs. 30 lakhs,
the administration of the Andaman Nicobar Islands, is
demanding from them a sum of Rs. One lakh and odd towards
the lease for the few days that they ran the liquor shop
after April 1, 1984 under the orders of Calcutta High Court,
calculated at the rate of Rs. 25 lakhs per year. We are
unable to see any justification for the demand since the
lease as sanctioned and as confirmed is admittedly for the
entire period April 1, 1984 to March 31, 1985 for Rs. 30
lakhs. The demand is directed to be withdrawn. The appeal is
allowed in the terms indicated. A notice will however issue
to George Joseph to show cause why he should not be
committed for contempt of court for breaching the
undertaking given by him. A nonbailable warrant will also
issue for his production before us. Since the real Samuel
has disclaimed all responsibility in the matter and since we
do not know who was the person who represented himself as
Samuel before the Calcutta High Court, we are unable to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 12
award costs against anyone.
M.L.A. Appeal disposed of accordingly
39