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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 26 OF 2018 WITH NOTICE OF MOTION (LODGING) NO. 95 OF 2018 IN WRIT PETITION NO. 26 OF 2018 Mr. Ulhas T. Naik , Advocate Practicing in High Court And residing at 19B/3, “TAKSHILA” Mahakali Caves Road, Andheri (East), Mumbai – 400 093.
….Petitioner /Applicant.
Vs. 1
The Hon'ble President of India Through President's Secretariat, Rashtrapati Bhavan, New Delhi – 110 004.
2
The Hon'ble Supreme Court of India, Through The Registrar, Tilak Marg, New Delhi – 110 201.
3
Union of India, Through the Secretary, Ministry of Law and Justice, Department of Justice, Jaisalmer House, 26, Man Singh Road, New Delhi110 001.
4
The Hon'ble High Court of Bombay, Through the Registrar General, 1/15
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Dr. Kane Road, Fort, Mumbai, Maharashtra 400 032. 5
The State of Maharashtra, Through the Principal Secretary And Remembrancer of Legal Affairs/ Secretary and Senior Legal Advisor (A/C), Law and Judiciary Department, Madam Cama Road, Hutatma Rajguru Square, Nariman Point, Mumbai – 400 032.
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Intelligence Bureau Through its Director, 35, Sardar Patel Marg, Chanakyapuri, New Delhi – 110 021.
7
Hon'ble Shri Justice Sandip Kashinath Shinde, Additional Judge of High Court of Judicature at Bombay, Dr. Kane Road, Fort, Mumbai, Maharashtra 400 032. ….Respondents.
Mr. Amit A. Karande for the Petitioner/Applicant. Mr. Anil Singh, ASG a/w Mr. Aditya Thakkar, Ms. Geetika Gandhi i/by Indrayani Deshmukh for Respondent No.3. Mr. D.J. Khambatta, Senior Advocate a/w Mr. Mahesh Londhe, Mr. Netaji Gawade i/by M/s. Sanjay Udeshi & Co. for Respondent No.4. Ms. Geeta Shastri, Additional G.P. for Respondent No.5. CORAM : R.M. BORDE AND R.G. KETKAR, JJ. DATE : 8 FEBRUARY 2018. ORAL JUDGMENT (PER R.M. BORDE, J.):
The instant Petition, presented by an Advocate, practicing in this Court, seeking a writ of quowarranto, questioning the 2/15
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appointment of Respondent No.7 as an additional Judge of the Bombay High Court, is an instance of blatant abuse of the process of the Court. The Hon'ble Supreme Court in the matter of Holicow Pictures (P) Ltd. Vs. Prem Chandra Mishra 1 has observed in paragraph No. 12, which is equally applicable to the instant Petition, we quote “10.......12. It is depressing to note that on account of such trumpery proceedings initiated before the Courts, innumerable days are wasted, which time otherwise could have been spent for the disposal of cases of the genuine litigants. Though we spare no efforts in fostering and developing the laudable concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy, whose fundamental rights are infringed and violated and whose grievances go unnoticed, unrepresented and unheard; yet we cannot avoid but express our opinion that while genuine litigants with legitimate grievances relating to civil matters involving properties worth hundreds of millions gallows under untold agony and persons sentenced to death facing and kept in incarceration for long years, persons suffering from undue delay in service matters government or private, persons awaiting the disposal of cases wherein huge amounts of public revenue or unauthorized collection of tax amounts are locked up, detenu expecting their release from the detention orders etc. etc. are all standing in a long serpentine queue for years with the fond hope of getting into the Courts and having their grievances redressed, the busybodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either of themselves or as a proxy of others or for any other extraneous motivation or for glare of publicity, break the queue muffing their 1(2007) 14 SCC 281
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faces by wearing the mask of public interest litigation and get into the Courts by filing vexatious and frivolous petitions and thus criminally waste the valuable doors of the Courts never moves, which piquant situation creates frustration in the minds of the genuine litigants and resultantly they lose faith in the administration of our judicial system. In the matter of Dattaraj Nathuji Thaware Vs. State of
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Maharashtra 2 the Hon'ble the Supreme Court cautioned the Courts to look into the Petition carefully and ensure that there is a genuine public interest involved in the case before invoking its jurisdiction. The Court should be careful to ensure that its jurisdiction is not abused by a person or body of persons to further his or their personal causes or to satisfy his or their personal grudge or grudges. The stream of justice should not be allowed to be polluted by unscrupulous litigants.
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In the instant matter, the Petitioner has on oath made
unsubstantiated allegations, concerning the integrity and suitability of Respondent No. 7 to occupy Constitutional Office as the Judge of the High Court. Apart from making callous and reckless allegations, the Petitioner also makes factually and intentionally incorrect statement 2(2005) 1 SCC 590
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on oath that Respondent No.7 was compulsorily retired while functioning as a District Judge and as such, is ineligible for being appointed as a Judge of the High Court. We have verified the original records and it is noticed by us that Respondent No.7 had tendered his resignation of the post of Judge, City Civil Court and Additional Sessions Judge, Bombay to the Registrar General, High Court at Bombay on 1 August, 2006. It was reported by the Registry that there were no dues payable by Respondent No. 7, nor there was any departmental proceeding pending against him. The High Court recommended to the Government of Maharashtra to accept the letter of resignation and in pursuance of such recommendation, the State of Maharashtra, by an order dated 4 September 2006, accepted the resignation tendered by Respondent No. 7 from the date of the service of the decision of the State Government on Respondent No.7. It is, thus, clear that Respondent No.7 had, in fact, tendered his resignation, which was accepted by the State. While arguing the Petition, the counsel for the Petitioner, was asked whether he is aware of this fact and as to whether he can substantiate his contention that Respondent No.7 has been compulsorily retired, the counsel appearing for the Petitioner clearly admitted that he does not have any
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information, nor can disclose a source of his information as regards statement made in the Petition that Respondent No.7 has been compulsorily retired. On the contrary, it is also admitted by the Counsel appearing in the matter, that he has knowledge that Respondent No. 7 has tendered his resignation, which has been accepted by the State Government.
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Curiously enough, during the pendency of Petition, the
Petitioner has tendered a Notice of Motion praying for grant of leave to withdraw the Petition with liberty to file a fresh Petition. We have not allowed the Notice of Motion. However, the Petitioner made an attempt to substitute the Petition by tendering compilation, which also records vague allegation as regards compulsory retirement of Respondent No.7. It is now being contended by the Petitioner that the Petitioner is not aware exactly but believes that there is a public perception that Respondent No.7, in view of contemplation of departmental inquiry, either seems to have been compulsorily retired or sought voluntary retirement or resigned from the service. It must be noted that the contents of the Petition, presented to us, as stated in para 1 to 14 are declared to be true and
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correct as per the knowledge of the affiantPetitioner. The Petitioner, who is an Advocate, has on oath stated falsehood, which he believed and had knowledge that the same is false. However, although we are convinced that the Petitioner has made unfounded allegations against the Constitutional functionary and stated falsehood in the Petition, we refrain ourselves from directing initiation of Criminal proceedings against the Petitioner and the Advocate representing him. In stead, we choose to adopt an another course of imposing heavy costs, while dismissing the Petition.
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The Petitioner has impleaded the President of India as the
party Respondent in the Petition. In the Petition, which the Petitioner attempted to bring on record, also contains names of Highest Constitutional functionaries such as, the President of India, Prime Minister of India, the Chief Justice of India, the Union Minister of Law, Justice and Company Affairs, as well as, the Governor of Maharashtra. The Petitioner, being an advocate, is expected to be aware of the provisions of Article 361(1), which provides that, “The President, or the Governor or Rajpramukh of a State, shall not be answerable to any Court for the exercise and performance of the powers and duties of his
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office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties. In this context, a reference can be made to the Constitution Bench Judgment in the matter of Rameshwar Prasad & Ors. Vs. Union of India & Anr. 3. In paragraph No. 166 of the Judgment, it is observed “A plain reading of the aforesaid Article shows that there is a complete bar to the impleading and issue of notice to the President or the Governor inasmuch as they are not answerable to any Court for the exercise and performance of their powers and duties. In paragraph 172, the Constitution Bench has observed that “The position in law, therefore, is that the Governor enjoys complete immunity. Governor is not answerable to any Court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties.”
6
So far as the aspect of eligibility and suitability of
Respondent No. 7 is concerned, it shall be borne in mind that the inquiry can be limited to the aspect as regards effective consultation before making the appointment. It is observed by the Division Bench 3 AIR 2006 SC 980
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of this Court, while dealing with Writ Petition No. 1519 of 2010, in the matter of V.P. Patil, Advocate Vs. Mr. Justice J.N. Patel & Ors., decided on 9 March 2010, relying upon the Judgment of the Hon'ble Supreme Court in the matter of Mahesh Chandra Gupta Vs. Union of India & Ors 4 that “the aspect of suitability of a person to be appointed as a Judge of the High Court is not justiciable, the only aspect in which the enquiry can be made is whether there was an effective consultation before his appointment”. It has not been substantiated in the Petition that there is no effective consultation before making appointment of Respondent No.7.
In the matter of Mahesh Chandra Gupta (Supra) the
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Hon'ble Supreme Court has observed in paragraph Nos. 43 and 44 as under “43. One more aspect needs to be highlighted. "Eligibility" is an objective factor. Who could be elevated is specifically answered by Article 217(2). When "eligibility" is put in question, it could fall within the scope of judicial review. However, the question as to who should be elevated, which essentially involves the aspect of "suitability", stands excluded from the purview of judicial review. 44.
At this stage, we may highlight the
4(2009) 8 SCC 273
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fact that there is a vital difference between judicial review and merit review. Consultation, as stated above, forms part of the procedure to test the fitness of a person to be appointed a High Court Judge under Article 217(1). Once there is consultation, the content of that consultation is beyond the scope of judicial review, though lack of effective consultation could fall within the scope of judicial review. This is the basic ratio of the judgment of the Constitutional Bench of this Court in Supreme Court AdvocatesonRecord Association [(1993) 4 SCC 441] and Special Reference No. 1 of 1998 [(1998) 7 SCC 739].” 8
In paragraph Nos. 71 to 73 of the Judgment, the Hon'ble
Supreme Court proceeds to observe thus “71. “The overarching constitutional justification for judicial review, the vindication of the rule of law, remains constant, but mechanisms for giving effect to that justification vary”. ...Mark Elliott “Judicial review must ultimately be justified by constitutional principle.” ...Jowett In the present case, we are concerned with the mechanism for giving effect to the Constitutional justification for judicial review. As stated above, "eligibility" is a matter of fact whereas "suitability" is a matter of opinion. In cases involving lack of "eligibility" writ of quo warranto would certainly lie. One reason being that "eligibility" is not a matter of subjectivity. However, "suitability" or "fitness" of a person to be appointed a High Court Judge: his character, his integrity, his competence and the like are matters of opinion.
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72. Appointment under Article 217(1), visavis qualification under Article 217(1), is the function of participatory integrated process in which there is deliberation and consultation between the Supreme Court Collegium and the High Court Collegium. In cases of consensus, the question of primacy does not arise. The Supreme Court Collegium does not sit in appeal over the recommendations of the High Court Collegium. 73. The concept of plurality of Judges in the formation of the opinion of the Chief Justice of India is one of inbuilt checks against the likelihood of arbitrariness or bias. At this stage, we reiterate that “lack of eligibility" as also "lack of effective consultation" would certainly fall in the realm of judicial review. However, when we are earmarking a joint venture process as a participatory consultative process, the primary aim of which is to reach an agreed decision, one cannot term the Supreme Court Collegium as superior to High Court Collegium. The Supreme Court Collegium does not sit in appeal over the recommendation of the High Court Collegium. Each Collegium constitutes a participant in the participatory consultative process. The concept of primacy and plurality is in effect primacy of the opinion of the Chief Justice of India formed collectively. The discharge of the assigned role by each functionary helps to transcend the concept of primacy between them.”
9
In the instant matter, so far as the eligibility of Respondent
No. 7 is concerned, there are no question marks raised. The other aspects as regard consultative process is concerned, the learned Additional Solicitor General, appearing for the Union of India has pointed out that the procedure prescribed under the MoP has been
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observed scrupulously. It is informed that, the Chief Justice of Bombay High Court in consultation with the Collegium Members recommended the names of various Advocates and Judicial Officers including Respondent No.7 vide letter dated 14 July 2016. The Governor of Maharashtra, the Governor of Goa and the Chief Ministers of Maharashtra and Goa have also given their concurrence on 24 August 2016 to the proposed appointment of Respondent No.7 as an Additional Judge of the Bombay High Court. The Supreme Court collegium has also concurred in the appointment of Respondent No. 7 vide the minutes signed by the then Chief Justice of India on 4 April 2017 and other two members of the Collegium on 5 April 2017 and 6 April 2017 respectively. Thereafter, the appointment of Respondent No. 7 was approved by the Prime Minister of India on 23 May 2017 and the Hon'ble, the President on 27 May 2017 and the Notification was issued on 31 May 2017. It is further contended by the learned ASG that Respondent No. 7 is well known for his expertise in criminal law and for his standing and reputation at Bar. He has been reported to be sincere, hard working and having sound legal knowledge and appeared in many important cases in past and prior to the date of recommendation by the High Court Collegium.
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Keeping in view the credentials and on consideration of all
relevant factors and after detailed, effective and meaningful consultation with all Constitutional authorities, such as High Court collegium, the Supreme Court collegium, State Governments of Maharashtra and Goa, Hon'ble Prime Minister and the Hon'ble President, the appointment of Respondent No.7 has been made. It is further stated that in case of his appointment, all procedure laid down in the Memorandum of Procedure were followed at all the stages. In this view of the matter, there can be no dispute, as regards the observance of the procedure and adoption of the due process in making appointment.
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As has been recorded above, the instant Writ Petition in
the nature of Public Interest Litigation presented by the supposedly responsible member of the Bar is a blatant abuse of the process of law. The PIL is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeker is not lurking. It is to be used
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as an effective weapon in the armory of law for delivering social justice to the citizens. We are compelled to record that while scrutinizing the challenge raised before us in the form of PIL, there is a lurking and ugly private malice, vested interest and/or publicity seeker tendency.
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This Court, therefore, shall have to deal with such
instances with a firm hand. The activities of the Petitioner do not stop at presenting the Petition, containing malicious and false allegations. He is instrumenting in uploading the memorandum of Petition containing wild, reckless and unfounded allegations against the Constitutional functionary i.e. Respondent No.7 on the website “www.livelaw.in”.
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Considering these aspects, while directing dismissal of the
Petition, we impose costs of Rs.1,00,000/ (Rupees One Lakh only) to be paid by the Petitioner. The amount shall be deposited within a period of four weeks from today, in the Registry of this High Court. The amount of costs that would be deposited, shall be transmitted to the account of Maharashtra State Legal Services Authority.
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In the event of failure of the Petitioner to deposit the
amount of costs, the said amount shall be recovered from the Petitioner as arrears of Land Revenue. A copy of this Judgment be sent to the Collector, Mumbai Suburban District, at the earliest. 15
The matter shall be listed after eight weeks for
ascertainment of compliance, as regards payment of costs.
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In view of the dismissal of the Writ Petition, pending
Notice of Motion does not survive and also stands rejected.
(R.G. KETKAR, J.)
(R.M. BORDE, J.)
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