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Jyoti Prakash Mitter Vs. Union of India - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtDelhi High Court
Decided On
Case NumberSuit Appeal No. 151 of 1974
Judge
Reported inILR1980Delhi371
ActsConstitution of India - Article 217(3); Code of Civil Procedure (CPC), 1908 - Sections 9; Specific Relief Act, 1963 - Sections 34; Limitation Act, 1963 - Sections 15(2); Supreme Court Rules, 1966 -Order 47, Rule 6
AppellantJyoti Prakash Mitter
RespondentUnion of India
Advocates: K.N. Kataria and; B.B. Aggarwal, Advs
Excerpt:
constitution of india - articles 217(3), 132(1)(3), 141, 136 and 226--civil procedure code, sections 9 & 80--specific relief act. section 24--limitation act, section 15(2)--supreme court rules (1966), order 47, rule 6--'decision' of the president of india within the meaning of article 217(3)--validity of a supreme court judgment--whether open to challenge in any subordinate court.; in the instant case, the plaintiff was appointed an additional judge of the calcutta high court on 11-2-1949 and as permanent judge on 21-2-1950. the plaintiff had been in office for about 10 years when the government of india purported to reopen the question of plaintiff's age on grounds of discrepancy between the age as given in his metriculation examination certificate and the age given by him. the..........grover and dua, jj.) delivered judgment on january 21, 1971, purporting to allow the union of india's appeal by reversing all the material findings of fact arrived at by the high court and grossly misstating vital facts as well as the contents of the high court judgment, demonstrating that neither shah, c.j., nor anyone of his colleagues had read through the judgment appealed from or that their reading of the judgment was so perfunctory as not to amount to a reading of the judgment at all.' (12) the plaintiff humbly submits that the appeal by the union of india [civil appeal no. 52(ncm) of 1968] having been upon a certificate under article 132(1) and no leave under article 132(3) or special leave under article 136 having been asked for and|or granted, the supreme court had no.....
Judgment:

Sultan Singh, J.

(1) The plaintiff was appointed an additional Judge of tile High Court at Calcutta on February Ii, 1949 and a permanent Judge of the said court on 21st January, 1950. He gave his date of birth as 27th December, 1904. After the plaintiff had been in office for about ten years the Home Minister, Government of India purported to reopen the question of his age on the ground of discrepancy between the age as stated in his certificate for the metriculate Examination and the age given by him. The Government of India held the plaintiff's correct date of birth to be 27th December, 1901. This determination opened the gates of the litigation between the plaintiff and the Government. The plaintiff filed petition in the circuit bench of the Punjab High Court but it was dismissed as not maintainable. The plaintiff then filed a petition under Article 226 of the Constitution in the High Court at Calcutta. It was heard by a Special Bench of five judges and his petition was dismissed by a majority decision of four judges vide judgment dated 22nd May, 1964. The plaintiff filed an appeal to the Supreme Court by special leave which was allowed on 9th November, 1964 and this judgment is reported in : [1965]2SCR53 . The Supreme Court held that the purported decision of the Government of India determining the plaintiff's date of birth as 27th December, 1901 was no decision of the President within the meaning of article 217(3) of the Constitution. The Supreme Court while deciding the plaintiff's appeal gave certain directions. pursuant to these directions the Home Ministry on or about 17th November, 1964 made a reference to the President of India inviting him to decide the question of plaintiff's age under Article 217(3) of the Constitution. The President consulted the Chief Justice of India who on 28th September, 1965 advised him to hold that the plaintiff was born on 27th December, 1901 and not on 27th December, 1904. The President of India on 29th September, 1965 passed the following order :

'Iaccept the advice tendered by the Chief Justice of India and decide that the age of Sri Jyoti Prakash Mitter should be determined on the basis that he was born on 27th December, 1901.'

(2) The plaintiff by his letter dated 15th October, 1965 to the President prayed that his decision should be reopened and that he should be granted an audience in the presence of the Chief Justice of India and a representative of the Home Ministry. The plaintiff was told by the Home Ministry that the matter could not be reopened. The plaintiff on 3rd August, 1966 then moved the Calcutta High Court again under article 226 of the Constitution of India praying inter alias that the purported decision of the President of India be set aside or quashed or for other appropriate reliefs. The rule nisi issued on the said writ petition was made absolute by O. D. Basu, J. of the Calcutta High Court vide judgment dated 7th and 8th August, 1967. It was held that the order dated 29th September, 1965 of the President of India was not a decision of the President in terms of article 217(3) of the Constitution. The learned Single Judge of the Calcutta High Court, after the delivery of the judgment on a verbal prayer for a Certificate under article 132(1) of the Constitution on the ground that the case involved a substantial question of law as to the interpretation of Article 217(3) of the Constitution, granted the certificate asked for. The defendant, Union of India filed the petition of appeal in the Supreme Court and reiterated that the appeal involved a substantial question of law as to the interpretation of Article 217(3) of the Constitution. The Supreme Court accepted the appeal of the defendant and reversed the judgment of the Calcutta High Court. The Supreme Court Judgment : Union of India vs . Jyoti Prakash Mitter is reported in : (1971)ILLJ256SC . The plaintiff filed an application before the Supreme Court for review of judgment dated 21st January, 1971 but his application was dismissed in liming. The plaintiff served a notice dated 10-1-1974 under section 80 of the Code of Civil Procedure upon the defendant and filed the present suit on 19th March, 1974 for a declaration that the judgment of the Supreme Court of India pronounced on 21st January, 1971 in Civil Appeal No. 52 of 1968 is without jurisdiction and nullity and not binding on him and that he is entitled to claim the status of a High Court Judge till 27th December, 1966.

(3) The defendant in the written statement dated 24th July, 1975 pleads that (i) Suit is not maintainable in as much is the plaintiff is seeking a declaration of the judgment of the Supreme Court of India pronounced on 21st January, 1971 to be without jurisdiction and nullity; (ii) The suit is barred by limitation; (iii) The suit for mere declaration without consequential relief is not maintainable as required by section 34 of the Specific Relief Act; (iv) Even assuming the age of the plaintiff to be as claimed by him he cannot now be declared to be continuing as a Judge of Calcutta High Court as he has according to date of birth claimed by him, crossed the date of retirement and that the declaration sought for by the plaintiff even if granted would be futile and as such the suit is not maintainable and is liable to be dismissed on this ground. On merits it is stated by the defendant that the plaintiff was appointed as an Additional Judge of the High Court of Calcutta on 11th January, 1949 and a permanent Judge on 23rd January, 1950, that no document in support of his age was submitted by him, that the defendant in 1956 collected particulars with regard to educational qualifications, age etc. in order to compile information about High Court Judges, and the plaintiff disclosed Ins date of birth as 27th December, 1904, that in February, 1959 the defendant received information that the correct date of birth the plaintiff was 27th December, 1901 which was confirmed by the defendant from the Bihar and Orissa Gazette dated 26th June. 1918 containing the results of the metriculation Examination of Patna University held during April, 1918. The written statement further pleads that on 17th November, 1964 in pursuance of the directions of the Supreme Court in its judgment dated 9th November, 1964 the matter was placed again before the President of India for decision on plaintiff's age under Article 217(3) of the Constitution of India, that the President decided the question strictly in accordance with the said article 217(3) of the Constitution and it is not open to the plaintiff, in the present suit, to challenge the validity of the decision of the President, that the question regarding decision of the President is beyond the scope of relief sought in the suit. The defendant denies that the President had not applied his mind while arriving at a decision and that after seeking the advice of the Chief Justice of India as required under Article 217(3) of the Constitution, the President decided on 29th September, 1965 that the age of the plaintiff should be determined on the basis of 27th December, 1901 as his date of birth, that the judgment dated 21st January, 1971 delivered by the Supreme Court is perfect, legal and valid. It is also denied by the defendant that the judgment of the Supreme Court is without jurisdiction or nullity. The receipt of notice under section 80 of the Code of Civil Procedure is not denied but its validity is denied on the ground that it does not confirm to the requirements of section 80 of the Code of Civil Procedure. The jurisdiction of this court to interfere with the judicial Judgment dated 21st January, 1971 of the Supreme Court is also denied by the defendant.

(4) On the pleadings of the parties the following issues were framed on 8th October, 1976 :

(1)Whether the suit as framed is maintainable (2) Whether the suit is within time (3) Whether the judgment of the Supreme Court in C.A. 52 (N.C.M.) of 1968 dated 21st January, 1971 is without jurisdiction, a nullity and not binding on the plaintiff (This issue will cover the pleas raised by the plaintiff in paras 17, 18 and 19 of the plant) (4) Whether the notice served by the plaintiff on the defendants under section 80 Civil Procedure Code was not valid? (5) Whether the plaintiff is entitled to claim the status of a High Court Judge till 27th December, 1966 (6) Relief.

ISSUE NO. 1

(5) By the present suit the plaintiff seeks a declaration that the Judgment of the Supreme Court pronounced on 21st January, 1971 in his case is without jurisdiction and nullity and not binding upon him. Article 141 of the Constitution of India reads :

'THElaw declared by the Supreme Court shall be binding on all courts within the territory of India.'

Under the established principles as to judicial precedents the judgments of the highest court in the land are binding on all subordinate courts. This principle has been given constitutional recognition in this Article. A decision of the Supreme Court on a point of law in any dispute would have a binding effect not only on the parties to the suit but also on all courts in India as a precedent in which the law is declared by the Supreme Court. In the case of such a decision the enquiry whether it would operate as res-judicata in a subsequent case would be quite unnecessary even if the subsequent case is between the 376 same parties (See Amalgamated Coalfields Ltd. and another Vs . Janapada Sabha Chhindwara and others, : AIR1964SC1013 . Not only this, the Supreme Court in Ballabhdas Mathuradas Lakbani and others Vs . Municipal Committee, Malkapur : AIR1970SC1002 observed that its judgment would be binding on all Courts in India even though a new point which was not taken into consideration by the Supreme Court is raised in respect of the question which the Supreme Court has declared the law. The plaintiff's claim about his date of birth was decided by the Supreme Court on 21st January, 1971 which judgment is reported in : (1971)ILLJ256SC . Under Article 141 this judgment of the Supreme Court is binding on this court. In other words nobody can be allowed to take any exception to any judgment passed by the Supreme Court. Thus a suit to challenge the validity of a judgment of the Supreme Court is barred. Section 9 of the Code of Civil Procedure reads :

'COURTSto try all civil suits unlaws barred.- The Courts shall (subject to the provisions herein contained) have Jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Explanationn I : A suit in which the right to property or to an office is contested is a suit of a civil nature notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. Explanationn Ii : For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanationn I or whether or not such office is attached to a particular place.'

(6) It is also a well-known principle of law that where there is a right there is a remedy. A litigant having a grievance of a civil nature hag a right to institute a suit in some court or other unless its cognizance is either expressly or impliedly barred (Smt. Ganga .Bai Vs . Vijay Kumar and others : [1974]3SCR882 . The present suit is for a declaration that the judgment of the Supreme Court is without Jurisdiction and as under Article 141 of the Constitution the judgment of the Supereme Court is binding on all subordinate courts, the cognizance of present suit is barred under section 9 of the Code of Civil procedure. Ordinarily this court has jurisdiction to try all suits of a civil nature but as the suit challenging the law declared by the Supreme Court is barred under Article 141 of the Constitution, this court cannot take cognizance of the present suit. It is thereforee, held that the present suit is not maintainable. Issue NO. 2

(7) The judgment of the Supreme Court which is being challenged in the present suit was pronounced on 21st January, 1971. The suit was filed on 19th March, 1974. The present suit is against the Union of India and thereforee under section 80 of the Code of Civil Procedure a notice has to be given. Notice under section 80 of the Code of Civil Procedure has been given by the plaintiff before the institution of the suit. Under section 15(2) of the Limitation Act, the period of two months prescribed for notice under section 80 of the Code of Civil Procedure is to be excluded for computing the period of limitation for the institution of the present suit. After excluding the period of notice under section 80 of the Code of Civil Procedure the suit has been filed within limitation. This issue is, thereforee, decided against the defendant. Issue NO. 3

(8) The Supreme Court judgment dated 21st January, 1971 between the parties is challenged by the plaintiff on the allegations contained in paras 17, 18 and 19 of the plaint which are as follow :

'1.7.By the said judgment, the said High Court came to divers other important findings of fact in support of its final conclusion.'

(9) After the said judgment [in Civil Revision 1798(W) of 1966] had been delivered, holding that the impugned order of the President of India as to the question of plaintiff's age was not a 'decision' of the President in terms of Article 217(3) of the Constitution, learned Advocate for the Union of India made a verbal prayer for a certificate under Article 132(1) of the Constitution on the ground that the case involved a substantial question of law as to the interpretation of Article 217(3) of the Constitution. The certificate asked for was granted.

(10) By their Petition of Appeal in the Supreme Court, the Union of India reiterated that the appeal involved a substantial question of law as to the interpretation of Article 217(3) of the Constitution. No application under Article 136 of the Constitution was made on behalf of the Union of India and no Special Leave under Article 136 was given by the Supreme Court. Thus, the appeal to the Supreme Court by the Union of India was upon a certificate under Article 132(1) of the Constitution. No leave under Article 132(3) of the Constitution was asked for or obtained by the Union of India.

(11) It is well-known that owing to his illness it was not possible for the plaintiff to appear before the Supreme Court at the final stage of the hearing of the appeal. His applications for an adjournment on the ground of his illness, which was of a grave nature, were dismissed offhand and on the fiction that he was then represented by an Advocate, and the Court (consisting of Shah, CJ., Sikri, Bhargava, Hegde, Grover and Dua, JJ.) delivered judgment on January 21, 1971, purporting to allow the Union of India's appeal by reversing all the material findings of fact arrived at by the High Court and grossly misstating vital facts as well as the contents of the High Court judgment, demonstrating that neither Shah, C.J., nor anyone of his colleagues had read through the judgment appealed from or that their reading of the judgment was so perfunctory as not to amount to a reading of the judgment at all.'

(12) The plaintiff humbly submits that the appeal by the Union of India [Civil Appeal No. 52(NCM) of 1968] having been upon a certificate under Article 132(1) and no leave under Article 132(3) or Special Leave under Article 136 having been asked for and|or granted, the Supreme Court had no jurisdiction to dispose of the appeal on grounds other than the ground on which the certificate Under Art. 132(1) had been granted and that in the absence of leave under Art. 132(3) or Special Leave under Article 136 of the Constitution, the findings of fact arrived at by the High Court could not be interfered with and set aside. In the premises, the said judgment of the Supreme Court was without jurisdiction and was accordingly a nullity, and so was the order which followed.'

(13) The plaintiff further submits that as Article 217(3) of the Constitution had been interpreted by the Supreme Court in : [1965]2SCR53 , the question as to the interpretation of Article 217(3) in relation to the appeal ceased to be a 'substantial question of law' as to the interpretation of the Constitution and that consequently the appeal filed by the Union of India on the basis of the said purported certificate was incompetent and not maintainable. That being the position, the Supreme Court had no jurisdiction to entertain and/or hear the appeal.'

(14) The writ petition filed by the plaintiff in the Calcutta High Court was decided on 7th and 8th August, 1967. The defendant made a verbal prayer for a certificate under Article 132(1) of the Constitution on the ground that the case involved a substantial question of law and the court granted the certificate asked for. Under Article 132(3) of the Constitution the defendant became entitled to file an appeal in the Supreme Court on the basis of the said certificate, to challenge that the question of law as to the interpretation of Article 217(3) of the Constitution was wrongly decided by he High Court. Article 132(3) further provides that the judgment of the High Court may be challenged on any other ground with the leave of the Supreme Court. The argument of the plaintiff is that the defendant before the Supreme Court never obtained any leave of the Supreme Court for challenging the judgment of the High Court on grounds other than the question of law as to the interpretation of Article 217(3) of the Constitution, that the defendant never made any separate petition staling the grounds to be raised and praying for leave to appeal on those grounds as required by Rule 5 of Chapter Xv of the Supreme Court Rules 1966. It is contended that as no leave was granted by the Supreme Court to the defendant to raise matters other than the question mentioned in the Certificate issued under Article 132(1) of the Constitution, the judgment dated 21st January, 1971 is without jurisdiction. Under Order 47 of the Supreme Court Rules, 1966 the Supreme Court has inherent powers and also a power to dispense with its own rules. Rule 6 of Order 47 of the Supreme Court Rules may be referred. It reads :

'NOTHINGin these rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.'

(15) The Supreme Court in its judgment dated 21st January, 1971 has interpreted Article 217(3) of the Constitution and held that it was not obligatory on the President of India to give a personal hearing to the plaintiff before determining the question of his age. The further contention of the plaintiff is that the Supreme Court had no jurisdiction to dispose of the appeal on grounds other than the grounds on which the certificate under Article 131(1) of the Constitution had been granted and that the finding of fact arrived at by the High Court could not be interfered with and set aside by the Supreme Court. The Supreme Court while interpreting Article 217(3) of the Constitution came to the conclusion that the decision of the President of India regarding the plaintiff's age was not open to challenge.

(16) It was also argued that the appeal filed by the Union of India before the Supreme Court against the judgment of the High Court on the basis of the certificate granted under Article 132(1) of the Constitution was incompetent and not maintainable. It may be stated that after the judgment dated 21st January, 1971 by the Supreme Court the plaintiff filed a review petition before the Supreme Court but the same was dismissed. All the contentions that have been raised now in the present plaint specially those contained in paras 17, 18 and 19 of the plaint must be deemed to have been raised and rejected by the Supreme Court when his review petition was dismissed. Under Article 141 of the Constitution the judgment given by the. Supreme Court is binding on this court. It is not open to this Court to go into the various allegations challenging the judgment of the Supreme court. The issue is decided against the plaintiff. Issue NO. 4

(17) The plaintiff served a notice dated 10th January, 1974 under section 80 of the Code of Civil Procedure before the Institution of the present suit. It appears to be in accordance with law. No validity was pointed out by the learned counsel for the defendant. The issue is thereforee decided in favor of the plaintiff. Issue NO. 5

(18) The Supreme Court in, its judgment dated 21st January, 1971 has not interfered with the judgment of the President of India holding the date of birth of the plaintiff as 27th December, 1901. Under Article 217(1) of the Constitution prior to its amendment by the Constitution (Fifteenth Amendment) Act, 1963 a High Court Judge was entitled to hold the office until he attained the age of 60 years. By the said Constitution (Fifteenth. Amendment) Act, 1963 it was provided that a High Court Judge would be entitled to hold office until he attained the age of 62 years. The data of birth of the plaintiff as determined by the President of India is 27th December, 1901 and thereforee, he was entitled to hold office as a High Court Judge up to 26th. December, 1961. The plaintiff is thereforee, not entitled to claim the status of a High Court Judge till 27th December. 1966 and this issue is decided against the plaintiff. Issue NO. 6

(19) In view of my discussion on issues No. 1, 3 and 5 the plaintiff's suit is dismissed but with no order as to costs.


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