Law is a ass! Securitization Act and per in curiam judgments

Law is a ass! Securitization Act and per in curiam judgments

Date : 04 January 2012
Author : Nedumpara

ALMOST ALL JUDGMENTS OF THE SUPREME COURT, HIGH COURTS AND DRTS TOUCHING UPON SECURITIZATION ACT AND RECOVERY OF DEBTS DUE TO BANKS AND FINANCIAL INSTITUTIONS ARE PER INCURIAM, OR IN SIMPLE WORDS WRITTEN IN IGNORANCE OF LAW.

SECURITIZATION ACT AND PER INCURIAM JUDGMENS

The following are the few decisions and the reasons why they are per incuriam :

A) Secured creditor has a primacy over the claim of the crown. 
A full Bench of the Madras High Court in UTI Bank Ltd. Vs. The Deputy Commissioner of Central Excise, Chennai & Anr., reported in AIR 2007 Madras 118, was pleased to hold that, between the secured creditor and the crown, the secured creditor has a primacy. It further held that the crown enjoy a primacy only over unsecured creditors.

This finding is in clear violation of the maxim ‘quando jus domini regis et subditi concurrunt jus regis preferri debet- where the title of the kind and the title of a subject concur, the king’s title must be preferred. No Courts could decide contrary to this maxim. And the Madras High Court certainly would not have intended to decide contrary to this maxim.

However, it did so inadvertently without realizing that the answer to the reference which was made to the full Bench precisely mean deciding contrary to the afore-said maxim which exists time immemorial. The Court made the mistake because it failed to comprehend that, by a mortgage what is created is a charge which a crown enjoy in respect of the claims due to it even without a specific charge. Between the unsecured creditor and the crown, the Court held that the crown has a primacy. The reason is that there is no charge in favour of the unsecured creditor upon the property of the debtor.

The Court, however, missed the obvious that, by creating an equitable mortgage, the debtor permits a charge being created in favour of the creditor against the property which is mortgaged. If between the unsecured creditor and the crown, the crown has a primacy because an unsecured creditor cannot claim any charge in his favour.

The scenario is only changed a bit by creation of a mortgage in favour of the creditor. In simple words, the creditor when a mortgage is created secure a charge in his favour as against the property which is subjected to mortgage. The scenario thus emerging is that the king and the secured creditor both enjoying a charge against the property which is subjected to the mortgage. In such a situation, “the title of the king and the title of the subject concur”. And the above maxim squarely apply. That is to say, where the title of the king and the title of the subject concur, the king’s title must be preferred. Therefore, Madras High Court ought to have held that the crown, i.e., customs/central excise duties will take a primacy over the claim of the secured creditor.

B) Under Section 14 of the Securitization Act, Magistrate can order dispossession of even a tenant from his dwelling house without notice and without hearing :

The Hon’ble High Court of Mumbai, in Tradewell Vs. Indian Bank, reported in Manu/Mh/0195/ 2007, was pleased to hold that, a Magistrate exercising power under Section 14 of the Securitization Act can order dispossession of a secured debtor of his home, office or business premises or even a tenant without notice and without hearing him. The Court held that there is no need to observe natural justice. This judgment is per incuriam as it is in violation of the fundamental rights guaranteed under the Constitution as also many a Constitutional Bench judgments of the Supreme Court. Prior to the judgment of the House of Lords, in Ridge Vs. Baldwin, there was a controversy as to whether there is an obligation to observe natural justice if the function is administrative and not judicial.

In Ridge Vs. Baldwin, the House of Lords (4:1), was pleased to hold that, it is not necessary for the legislature to say every time that natural justice be complied with by expressly providing so in the enactment and that obligation to observe natural justice ought to be read into the statute. It also further held that the non-observation of natural justice would render the order null and void and not merely voidable. This judgment has been followed by a number of Constitution Bench judgment of the Supreme Court, particularly, A.K. Kripack, Menaka Gandhi, M.S. Gill Vs. Election Commission, Indira Nehru Gandhi Vs. Raj Narayan, Olga Tellies Vs. Municipal Corporation of Mumbai, etc.

The distinction between administrative and judicial function and the obligation to observe natural justice based on such distinction became any longer relevant.

Yet in Tradewell Vs. Indian Bank, the Bombay High Court was pleased to hold that a secured debtor or even a tenant could be evicted without compliance of natural justice. In coming to said conclusion, the Bombay High Court relied on certain observations of the Supreme Court in Transcore Vs. IOB. What the Court made was the grave error.

Particularly because the Constitution Bench judgment of the Supreme Court on the obligation to hear no matter whether the function to be discharged is judicial or administrative was even brought to the notice of the Court. The Court however failed to follow the ratio of the judgment of the Constitution Bench and instead chose to decide contrary to the binding precedents. The reason by the Court happened to commit the grave error and to pass a judgment which is manifestly per incuriam is that, it failed to comprehend the distinction between what is ratio decidendiand obiter dicta.

The judgment of the Constitution Benches, particularly of the Seven Judges Constitution Bench in Menaka Gandhi was on the sole issue of the obligation to observe natural justice, particularly audi alterem parterem. The judgment of the Supreme Court in Transcore’s case by a Bench of two Judges certain contains many an observation which is to the effect that the Bank invoking measures under Section 13 of the Securitization Act need not observe audi alterem parterem. The observation of the Supreme Court in Transcore is bad law indeed. However, that in itself could have done no damage had the Division Bench of the Bombay High Court in Tradewell’s case appreciated the meaning of the words stare decis, ratio decidendi and obiter dicta. Stare decis literally means, “decision stands”. Ratio decidendi means “reason for the decision”. And Obiter dicta means “an opinion given incidentally”. What is a binding precedent is the ratio decidendi. While the only issue or the main issue which falls for consideration in Menaka Gandhi’s case and other Constitution Benches of the Supreme Court was the obligation to observe natural justice, no such question arose in Transcore. In Transcore, the only question which arose for consideration is, in the context of this article, was the meaning of the words “action taken appearing in the first proviso to Section 19 of the Recovery of Debts due to Banks and Financial Institutions Act”.

The question was whether a notice under Section 13(2) issued prior to 11.11.2004 was an action taken within the meaning of the proviso to Section 19(1) of the Act or a mere show cause notice. In explaining that it is not a “mere show cause notice”, Justice Kapadia went on to analyze the scope and ambit of the Securitization Act.

While discussing the Act, he made many an observations to the effect that what is contemplated under the Act is quick recovery of the amounts due to Banks and financial institutions, a crying need for the smooth growth of the economy and, therefore, natural justice need not be observed. Whatever has been said were in the nature of mere obiter dicta which according to Justice Krishna Iyer, does not even bind the author

AN APPEAL TO OUR BROTHERS AND SISTERS OF PUNJAB & HARYANA High Court BAR ASSOCIATION.

AN APPEAL TO OUR BROTHERS AND SISTERS OF PUNJAB & HARYANA High Court BAR ASSOCIATION.

25th August, 2015

Dear all,

While we are proud of our judiciary, which has at all times stood as the guardian and protector of the freedoms and liberties of the people of this country, particularly in the testing times of Emergency, except for the infamous judgment in ADM, Jabalpur v. Sivakant Shukla, AIR 1976 SC 1207, the ordinary litigant and ordinary members of the Bar feel that a time has come when a vigilant Bar, nay, a public opinion, is absolutely in need to keep the glory of judiciary and to maintain its utility as an instrument of public service.

2. Besides the judgment in ADM, Jabalpur v. Sivakant Shukla (supra), the judgments of the Supreme Court in Judges-2 and Judges-3 cases, which meant rewriting of the Constitution by the Court when the power to amend the Constitution is exclusively vested in the Parliament in exercise of its constituent power and the State Legislatures in exercise of their jurisdiction of ratification, also meant tilting the concept of separation of power, nay, undermining of the very concept of the basic structure of the Constitution.

3. The judgment in Judges-2 case was rendered in abuse of a benevolent jurisdiction called PIL, which is a subject matter of great abuse today.  The collegium system, which Judges-2 case introduced, meant Judges appointing themselves in secrecy, which resulted in the higher judiciary being monopolized by the kith and kin of former and sitting Judges of the Supreme Court and High Courts, Union Ministers, Chief Ministers, Governors, powerful senior lawyers et al, leaving no room for the sons and daughters of the common men, the farmers, small traders, teachers, taxi drivers et al.  Today in our country, not a single lawyer who has crossed the age of 45 years who remain as such, not designated as a senior counsel or elevated as a Judge, despite of his being belonging to the privileged class, the sons and daughters of former and sitting Judges of the Supreme Court and High Courts and others stated above.  The monopolizing of the high judicial position and grabbing the major chunk of creamy briefs by the sons, daughters, nephews et al of Judges and senior lawyers have resulted in a situation where 95% of the revenue in the realm of litigation being cornered by the 5% of the elite upper caste lawyers and the remaining 5% being shared by the 95% who constitutes to be the untouchable class of lawyers.  This reality is known to all; the pain felt thereby is unbearable to the ordinary class of lawyers.  Yet, they remain helpless because there is no forum to voice their concern.  The National Lawyers Campaign for Judicial Transparency and Reforms (“Campaign”, for short) is the realization of the long felt anguish, pain, nay, anger, of the untouchable class of lawyers.

4. The Campaign has its headquarters in Mumbai at the address shown in this letterhead and has set up Chapters in Kolkata, Delhi, Cochin, Madras and Chandigarh.  The Campaign is on a membership drive.  Its membership is open to all lawyers, even to the upper caste of lawyers, provided they empathize with the cause of the untouchable class of lawyers for whose benefit it has taken birth.  The members of the Campaign, ordinary lawyers,

except that they demand equal treatment in the Temples of Justice and that the current practice of apartheid in the legal profession of the privileged class and the lower class of lawyers should be brought an end, have nothing against the upper class lawyers, the kith and kin of senior lawyers who have monopolized the fruits of the industry to themselves, and left nothing to the ordinary lawyers.  The campaigners believe that a few simplest of reforms can bring an end to the prevailing unfairness in the apartheid, discrimination and injustice which are so deeply felt in the Temples of Justice which they serve as priests.  The said steps are:

Advertisement of vacancies of Judges of the higher judiciary, invitation of applications, open and transparent selection and appointment, no matter whether it is done as contemplated in the National Judicial Appointment Commission Act, 2014 or not, a laudable effort on the part of the Parliament to bring an end to the apartheid which is in prevalence, and stalled by certain vested interest who have hijacked the platform of the Supreme Court Advocates on Record Association, or the collegium system, even;

Audio/video-recording of proceedings of all Courts and Tribunals and in particular the Supreme Court and High Courts;

Reintroduction of the transfer policy, which was described by the Seven-Judge Constitution Bench in Judges-1 case as a panacea for allegations of favouritism and conflict of interest where a lawyer is elevated as a Judge of the very same High Court where he has been practicing;

Bring an end to the “Uncle Judge Syndrome” by transferring Judges whose immediate relatives are practicing in the very same Court;

Abolition of the practice of designation of Advocates as a Senior Advocates or, at least, introduction of a common dress code for all lawyers, including those who are designated as Senior Advocates;

Repeal of Contempt of Courts Act, 1971, for the said Act constitutes to be the one single obstacle which has rendered freedom of speech enshrined in Article 19 of the Constitution redundant.  In none of the civil law countries, the law of contempt exists.  In England, in the 19th Century itself, contempt by scandalizing  a Court was declared to be obsolete;

Introduce a transparent mechanism in the appointment of Standing Counsel/Panel Advocates/Legal Officers for Central and State Governments, Statutory Bodies, Public Sector Undertakings etc., so that the prevailing system of nepotism, political favour etc., are brought to an end.

5. It is quite possible that many among you may not agree with all or some of the core objectives and philosophy of the Campaign.  We do not expect any lawyer to support the Campaign unless he or she finds themselves to identify with the cause and where you are able to identify with one of the causes, you are welcome to join us and support, be a torch-bearer of the cause you support.  No Campaign, no organization, nay, no movement, can be effective in the cause which it stands to subserve unless it has adequate financial resources.  Therefore, all contributions in the form of money, supply of Campaign articles and materials, organizing seminars and meetings etc., are most welcome, nay, whole-heartedly solicited.  My brothers and sisters who intend to be part of the Campaign or to support it are requested to contact me personally on my cell or landline number mentioned in this letterhead or other office-bearers of the Campaign.

With kind regards,
Yours sincerely,

(Mathews J. Nedumpara)
President

P.S. This appeal to the members of the Bar will be incomplete without this postscript.  While, as I have said at the very outset, our judiciary is largely composed of men of great intelligence, erudition, knowledge, ability, integrity, honesty, independence and impartiality, of which Hon'ble the Acting Chief Justice of the High Court of Punjab & Haryana is a monumental example, a Judge who is held in high esteem, nay, literally worshipped for His Lordship’s heavenly character, the concern for the poor and nobility, it cannot be denied that there are at least a few exceptions, who are men in robes invested with the sovereign power of “we, the people”, divine trust, and who indulge in corruption and nepotism, in gross abuse thereof.  We, the campaigners, have been inundated with letters and materials which make the legal fraternity disquiet, which legendary Justice Krishna Iyer fervently used to appeal to the members of the Bar that a member of the Bar who fails to raise his voice against corruption and malpractice, wherever it is, fails in the sacred duty which he owes to the society, for the day when lawyers shut their eyes towards corruption and injustice, the doomsday of democracy is not far away.  Dear brothers and sisters, we are the conscious keepers and warriors of the democratic ethos, freedom, liberty and justice and we will never fail in our duty to fight for the values of justice, freedom and liberty so dear to us.

(Mathews J. Nedumpara)

Writ Petition against demolition of slums.

Campaign

Write Petition against demolition of slums.

Date : 09th November 2013
Mathews J. Nedumpara

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. OF 2013

(1) Rohini M. Amin & Anr. … Petitioners 
Versus 
(1) State of Maharashtra & Ors. … Respondents

SYNOPSIS

The Petitioners are approaching this Hon'ble Court against violation of their fundamental and human rights, seeking a writ of mandamus and other relief against the demolition of shanties and rendering of thousands of citizens homeless while it is the duty of the state to provide for the basic amenities, shelter, bare minimal food to keep their soul and body together and clothing, the very basic needs for self preservations.

Acts to be referred upon: -

i) Constitution of India; 
ii) Coastal Zone Regulations; 
iii) Maharashtra Regional & Town Planning Act; 
iv) Bombay Municipal Corporation Act; 
v) Any other Act.

Authorities to be cited: 
At the time of arguments. 
Date: 11th January, 2013. 
Place: Mumbai 
Mathews J. Nedumpara & S.M. Faizal Warsi 
Advocates for the Petitioner With kind regards and Seasons Greetings,

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. OF 2013

In the matter of Article 226 of the Constitution of India; 
AND
In the matter of the Coastal Zone Regulations;
AND
In the matter of the Maharashtra Regional & Town Planning Act; AND In the matter of the Bombay Municipal Corporation Act;

1. Rohini M. Amin,
Advocate, Adult, Indian inhabitant, 
Having my office address at 23, Great Western Building, 
Room No.132, 2nd Floor, Kalaghoda, Fort, Mumbai-400 023.

2. Govind N Kulkarni, 
Adult, Indian Inhabitant, 
Residing at Jari Mari, Indra Nagar, Indra Ekta Chawl,
Kurla, Andheri Road, Mumbai- 400 070

3. Parvathi Lal Singh
Lane No. 14, Ganpat Patil Nagar,
Near I.C Colony, Borivali (W) Mumbai- 400 103

… Petitioners

Versus

1. The State of Maharashtra,
Represented by its Chief Secretary, 
Mantralaya, Mumbai - 400 032.

2. Union of India, 
Represented by its Secretary in the Ministry of Environment & Forests, 
Government of India, Paryavaran Bhavan, CGO Complex, Lodhi Road, New Delhi - 110 003.

3. The Secretary to the Government of India, 
Department of Women & Child Welfare, Nirman Bhavan, New Delhi.

4. The Secretary to the Government of India,
Ministry of Poverty Alleviation, 
Nirman Bhavan New Delhi.

5. The Chairperson,
National Human Rights Commission, New Delhi.

6. The Chairperson, Maharashtra State Human Rights Commission
Hajarimal Somani Marg, Chhatrapati Shivaji Terminus, 
Mumbai - 400 001

7. The Municipal Commissioner, 
Brihan Mumbai Mahanagar Palika, Mumbai.

8. The Ward Officer in charge of Dahisar, 
Brihan Mumbai Mahanagar Palika, BMC Building, 
Fort, Mumbai 400 001.

9. The Commissioner of Police,
Greater Mumbai.

… Respondents.

TO THE HONOURABLE THE CHIEF JUSTICE AND THE OTHER HONOURABLE PUISNE JUDGES OF THIS HONOURABLE Court HUMBLE PETITION OF THE Petitioners ABOVENAMED

MOST RESPECTFULLY SHEWETH:

1. The Petitioners are citizens of India. The 1st Petitioner is a lawyer practising in this Hon'ble Court, the 2nd Petitioner is a slum dweller and the 3rd Petitioner is a widow with all her worldly possession, consisting of a few utensils, a sheet of aluminum which constitutes a roof over her head living in Ganpat Patil Nagar in the midst of dirt, filth all around without any water supply, electricity, toilet et al. The 3rd Petitioner’s makes a lively hood by working as a house maid in the nearby homes and her son makes a small money as a daily wage earner. Her family consists of herself, her only son, two grandsons: aged 3 and 2 respectively and her daughter-in-law who is at present in the advance stage of pregnancy. The 3rd Petitioner works as a maid to the first Petitioner. Yesterday, namely 10th of January, 2013 about 1400 shanties of hapless like the 3rd Petitioner were reduced to rubbles by using JCB by the MMCs armed with a swathe of Policemen. Thousands of fellow citizens, the poor and the helpless are rendered homeless. Many are hurt as the Police lathi charged. One of the poor ladies aged about 35 years died seeing her neighboring homes being demolished.

The instant Writ Petition involves great public interest, but the Petitioners are hesitant to call it as a Public Interest Litigation (PIL) since, as legendary Justice Krishna Iyer has repeatedly lamented borrowing the words of Jesus Christ, PIL is nothing but a “ravenous wolf In sheep's clothing”. The Petitioners are constrained to institute the instant Writ Petition for the enforcement of their fundamental and constitutional rights, which also would mean enforcement of fundamental and constitutional rights, the very right to existence of millions of people who constitute the poorest of the poor of the populace of Mumbai, namely, the slum dwellers.

The right of self-preservation, the right of existence, the right to shelter, the right to livelihood to keep one’s body and soul together, the bare basic needs, and the right for clothing, are not only fundamental rights, but they also mean a fundamental duty vested in the State to provide them to those who out of their disability and deprivation are not able to secure for themselves.

2. The island of Mumbai is one of the most blessed islands in the whole world. The city of Bombay (now Mumbai) during the British times was considered to be one of the finest cities in the world. Governmental policies and the absolute apathy to address the basic needs of the people like shelter, drinking water, sanitation etc., have reduced the city to the worst city on earth, the most unlivable city in the world, the worst city according to a recent survey conducted by a reputed international agency. The instant Writ Petition is prepared in a hurry. It had to be so prepared since around 1,500 shanties in Ganpat Nagar in Dahisar were demolished by the Bombay Municipal Corporation and thousands of people living in the most unthinkable, unimaginable and inhuman conditions are rendered homeless. The Petitioners intend to prepare a detailed Writ Petition, which cannot be hoped to be done before this Hon'ble Court assembles at 11.00 a.m. today. Therefore, the Petitioners crave leave of this Hon'ble Court to amend this petition suitably to incorporate further facts and grounds in support of the reliefs sought infra. The Petitioner is only touching upon the crux in a few sentences as infra.

3. Laws and particularly the Coastal Zone Regulations (CRZ), the Development Rules, the Maharashtra Regional and Town Planning Act, the Bombay Municipal Corporation Act, which have made it impossible for building enough housing stocks, particularly for the middle class and lower middle class, the slum dwellers, are responsible for rendering 80% of the population of the city living in utmost inhuman conditions. The first thing to be done is to throw these legislations, which are anti-people, to the Arabian Sea. As stated at the outset, Mumbai island has got enormous resources of land, space, etc., to accommodate the entire 1.5 or 1.6 crores of people living in the city, including the slum dwellers that constitute 80% of the population. The solutions are simple; allow the entire land of the city of Mumbai, which constitutes not even 1/1000th of the total area of the State of Maharashtra, for construction of housing stock for the people.

The Petitioners are environmentalists; they would like to have the environment protected; large areas brought under afforestation and discharge of carbon emission, which leads to global warming, to be reduced by taking both effective legislative and administrative measures which will curtail and prevent avoidable luxuries. For instance, the main building of this Hon'ble Court built by the British, which provided for sea breeze a free flow and did not require any kind of air-conditioning, as of now is centrally air-conditioned, which means enormous environmental damage in terms of carbon emission. The environment of the globe, nay, of India, nay, of Mumbai, is not dependent upon less than square 200 kilometers of Mumbai island; the global environment is not dependent upon the protection of a few thousand acres of mangroves in and around Mumbai; the global environment is not dependent on the salt pans which is identified to be 5,000 acres. There are hundreds of cities in the world built on sea shores and islands and in all these cities multi-storied buildings are constructed close to the sea shores. There is nothing like CRZ, the kind of nonsense which we have today, in any of the Port cities of the world. An acre of land in Mumbai is worth Rs.2,000 crores.

The Government could raise huge amount of money by opening up the salt pans and vast expanse of vacant land, the so-called mangroves, for development. The Petitioners are no experts, but they are made to understand that Rs.10 lakh crores of rupees could be raised by allowing commercial utilization of the vast expanse of land, the so-called mangroves. With 1/5th of this money, Mumbai could be converted into not merely a Shanghai but even a better city with world class amenities like roads, rails, mono-rails, public transport, water supply, sanitation etc. With a small portion of the money which could be so raised, lakhs and lakhs of degraded forests in Maharashtra could be converted into a better forest by adopting water harvesting and other measures for aforestation.

4. Rex est procurator factuoram - it is the duty of the King to protect those who cannot protect themselves – is a fundamental principle of constitutional law. It is the duty of the State to provide for the basic amenities for the preservation of life, shelter, food and basic needs of clothing, sanitation and, in a modern society, health care, education, etc., to its subjects. The State of Maharashtra, however, instead of providing its subjects such basic amenities, like a devil – even that would not be a mild expression – renders homeless thousands of poor slum dwellers. That is what happened many times in the past. It took place in 1995, though unfathomable, under orders of this Hon'ble Court which is expected to render justice to the poor. The legendary Justice Krishna Iyer suffered a near heart shock after seeing the savage crime committed upon nearly four lakhs of slum dwellers in the name of preservation of Sanjay Gandhi National Park. What is practiced today is not environmental protection, but a savage attitude in the name of environment. Environmental protection requires sacrifice on the part of the rich, powerful and the mighty, who should avoid air-conditioned Court Halls and other luxuries so that the environment is protected. Lawyers, Barristers and Judges emulate Mahatma Gandhi and they all accept what that great soul did, whose all possessions were two loin clothes, two towels, a spinning wheel and a reading glass. It is a war on humanity to render the poorest of the people homeless, who have set up their shanties on dirty and marshy land, in the name of protection of mangroves. In Mumbai only a microscopic minority has their own homes; the vast majority either lives in slums or rented premises. An ordinary lawyer like the 1st Petitioner and a slum dweller like the 2nd Petitioner cannot ever hope of owning a home in Mumbai. This is all because of the insanity in the name of protection of environment.

The Petitioners wish to repeat and reassert that they in no way are against protection of environment; they are environmentalists from their toe to head. But the environmental protection which they understand is not making the poor people, who live in slums, prey for the hungry tigers. Had any of the worthy souls who live in Malabar Hill and Cuffe Parade run the risk of they or their children being eaten by leopards and tigers, would they be speaking about maintaining the Sanjay Gandhi National Park in the midst of the city? They would have ensured that there is no leopard or tiger in the park, a threat to human life, but those who are attacked and eaten away are the voiceless poor people. It is near insanity to keep almost half of Mumbai island, including the Sanjay Gandhi National Park, as forest when millions of people have no place to live even in matchbox-like apartments. The Petitioners still out of their love for trees and forest are not even suggesting that Sanjay Gandhi National Park ought to be converted for development of housing stock for the homeless.

5. As aforesaid, this petition is prepared in great hurry. The 1st Petitioner’s heart bleeds because the poor slum dwellers homes have been demolished and her maid faces imminent threat of demolition. Therefore, the Petitioners consider it appropriate to file a more detailed and comprehensive petition in due course. The Petitioners beg to annex copies of the news reports dated 11th January, 2013 published in the Timers of India under the caption “One dies of heart attack as 1,410 huts razed in Dahisar” and in the Free Press Journal under the caption “BMC at demolition slipper post, woman dies of heart attack” as Exhibits “A” and“B”, respectively.

6. The Petitioners craves leave of this Hon’ble Court to add to, alter, amend and/or modify the Writ Petition as and when required. Despite the inability to explain at fair length for want of time the real solution for the problem which the 80% of the population the slum dwellers, the poor, the working class, the lower middle class, nay, the middle class, nay even the entire citizenry of Mumbai is to allow the city to grow vertically as almost all island city across the globe are, which leads to high density of population and the resultant congestion and a mechanism of efficient public transport, rail, mono-rails, buses and inland water ways which, could sustain only where there is a high density of population and the resultant congestion. A city with high rise buildings with highest density of population can make a metro rail system which could run profitably even while providing a train in every two minutes or even in one minute. Creation of satellite cities and expansion of the city is no answer for it will bring about a system where people will be forced to travel more from distant suburbs to the heart of the city. It will mean more traffic chaos, more carbon emission and a model, nay, a blunder which Delhi constitute to be a solution for congestion of cities by expansion. While Mumbai is confined to less than 200 Sq. Kms Delhi is 40 x 40= 1600 Sq. Kms. The Petitioners are no experts. Nay would even plead know nothing.

The ideal city of high rises with wide roads, advance mono rail and even inland water transport system which the Petitioner hereby canvass for the city of Mumbai is no brain child of them. The Petitioners being genuinely concerned and with the problem in the city and their own dream of owning a home and a city where fellow human beings are not treated worse than animals, to live in dearth and filth, has been consulting the issue with many a experts on the subject, some of whom happen to be products of IIT Powai. The further solutions which the Petitioners venture to just make a note of and no further to elaborate for want of time is not to permit any more constructions except in plots of a minimum of 5000 Sq. Ft. which could be absolutely self sufficient and self contained in terms of requirement of drinking water, sanitation and waste disposal. Mumbai enormous ground water resources. The water may be saline to an extent. But technology today is so advances and economical and viable that ground water could be treated and got rid of all impurities and even salinity, even at minimal cost. It could be far cheaper than the cost of bringing drinking water in tankers, it could even be cheaper than the municipal water assuming that the BMC able to give fresh connections. The Technology is so advanced to that housing stock an optimal size as indicated above, the entire waste water could be treated and recycled for use and no burden is cast on the drainage system not to speak of the environmental damage, which is none. Even the solid waste could be treated and converted into compost and even electricity could be generated. These are a few suggestions. An expert body, which the executive government has to form consisting of experts on the subject and representatives of people from all walks of life and particularly the lower middle class and slum dwellers decide these questions of policy.

The Petitioner do not even in their wildest of dreams imagine that they could expect the courts to substitute the Government and even if it could, something forbidden by the concept of separation of powers, that could be fruitful. But many a great injustice has been committed, the poorest of the poor of the citizens, the slum dwellers, the helpless, the hungry, the disabled and orphaned who have nothing in the world which could claim to possess except hunger and pain, agony and desperation, vagrancy and destitution been further been inflicted with demons, the Petitioner find no better word to describe them, while being sorry for the apparent intemperate language, who as Krishna Iyer had lamented… had instituted PIL in this Court, ravenous wolves in the clothing of a Sheep and even got this Court, the Sentinel qui vive of the of the lives, properties and liberties of the people even pass orders directing the executive to cause savagery crimes on the poorest of the poor. The demolition which had taken place and which at least 5 Million people apprehend that could happen any day for they are all underdogs with no voters I.D Proof, No Ration Card, no Pan Card, nothing of the sort and whose welfare nobody is interested, the Petitioners are afraid to say not even the political parties for they have no right of franchise. The Petitioners have probably used strong expressions could be even bordering on intemperate language but the Petitioners honestly believe that the training which the First Petitioner has received as a lawyer and the solemn advice “always use the most temperate language if has an exception, it is the instant cause. Gandhi was a great advocate of moderation in language, both as a lawyer and a leader of the freedom struggle but there are occasions where even that great saint was furious. Christ too, the messiah who preached tolerance, forgiveness and the highest sacrifice of sacrificing oneself as a penance of others have at occasions been most blunt.

In his famous sermons from the mount he said Thou hypocrite, first cast out the beam out of thine own eye; and then shalt thou see clearly to cast out the mote out of thy brother's eye. However, if the Petitioners, for the First Petitioner and her counsel who have drafted this petition has crossed the ‘laxman rekha’, in terms of the moderation of the language, the First Petitioner seeks unconditional apology. While the Petitioners may be forgiven making an allusion of the words of Christ… Thou hypocrite, first cast out the beam out of thine own eye; and then shalt thou see clearly to cast out the mote out of thy brother's eye as the self introspection, the enlightened citizen, the rich and the powerful which certainly include political leaders, bureaucrats, police officials, judges, professionals, doctors, engineers, advocates and even the ordinary lawyers, though majority of them constitute to be economically weaker section of the society to introspect and ask to themselves what little they have contributed for wiping out the tears of the emaciated, poverty stricken fellow human beings living in slums, in condition worse than even fit for animals to live.

7. No other application in respect of the subject-matter of this Petition has been filed either in the Hon’ble Supreme Court of India or in this Hon’ble High Court.

8. The Petitioners state that requisite Court-fee as per Rules has been paid.

9. The Petitioners state that there is no period of limitation for preferring this Petition and hence the same is within limitation.

10. The Petitioners state that the cause of action has arisen in Mumbai and hence this Hon’ble Court has jurisdiction to entertain this Petition.

THE PETITIONERS, 
THEREFORE, PRAY THAT THIS Hon'ble Court BE GRACIOUSLY PLEASED TO:-

A. Permit the Petitioners to file a fresh petition or amend the instant Writ Petition which is drafted post haste so as to secure the relief against the ongoing demolition, a prohibition thereof and extension of humanitarian aid to the slum dwellers such as their rehabilitation, providing food, clothing etc.;

B. To issue a writ of mandamus or any appropriate writ or direction, directing the Central Government, the State of Maharashtra and the MMC, to constitute an Experts Committee consisting of the secretaries to the Government of India as also of the State of Maharashtra in the ministries of Urban Development and Poverty Alleviation, Environment and Forests, transport, including of shipping and surface transport, the national and states human rights commission, National and states women’s commission, National commission for schedule castes and schedule tribe, national and state planning commission and eminent experts on the subjects of town planning, transport, drinking water, sewage and eminent men like Ratan Tata, Naryana Murthy, scientists of the ISRO and even defense research and development organization, eminent judges, philanthropist like Mr. Azim Premji so that the entire laws both Central and State regarding consideration of forest, salt pans, mangroves and in particular the CRZ and the development rules particularly concerning the FSI are revisited and appropriate legislations become a reality, where all slums are regularized and all slum dwellers are extended at the basic amenities shelter drinking water, sanitation so that the dream of the first Petitioner who constitute to be the middle class section of the society, the second Petitioner, a slum dweller who visit this court premises every day carrying his employers’ (lawyers) bags who constitute to be the lower middle class and the 3rd Petitioner, a poor slum dweller living in the filth and dirt all around without access to water supply, electricity, sanitation, even the very basic necessities of life, become true with the entire loss concerning environment and forest, development rules which by putting meaningless restrictions on FSI and thus has disastrously cut down the availability of housing stocks and space, leading to a situation where for eg. a two bedroom apartment as in Borivali could be costing 1 Crore, whereas comparable price even in Delhi is 1/4th of the same;

C. Declare that the Coastal Zone Regulations and Development Rules are unconstitutional and void inasmuch as they prevent utilization of coastal land for housing, which has led to a serious dent to the availability of housing stock and an unachievable dream of owning a home for the entire middle class and lower middle class section of the society;

D. Declare that keeping of the salt pans to the extent of about 5,000 acres as non-development land has resulted in a serious dent to the availability of housing stock and an unachievable dream of owning a home for the entire middle class and lower middle class section of the society;

E. Issue a writ of mandamus or any other appropriate writ or order or declaration directing the Respondents to open up the land mass and stock kept unavailable for development of housing stock in the name of Coastal Zone Regulations and Development Rules and utilize the revenue so raised for building housing stocks, roads, rails, etc.;

F. Issue a writ of mandamus or any other appropriate writ or order directing the National and State Human Right Commissions, which are practically a mammoth who have failed to serve the purpose for which they are constituted, to look into the large scale violation of human rights of the slum dwellers in the name of environmental protection;

G. To issue a writ of mandamus or any other appropriate writ or order directing the Central and State Government to implement the Rajiv Gandhi Avhas Yojana and Jawaharlal Nehru Urban Renewal Scheme and to provide basic amenites llike shelter, sanitation, drinking water and electricity to every slum dweller and to hold that the classification of slum dwellers based on cut of date like: 1.1.1995 and 1.1.2000 are all unconstitutional;

H. To issue an order of injunction restraining and prohibiting the Respondent MMC and the State Government from demolishing the shanties of the 3rd Petitioner and hundreds of similarly placed and further to provide emergent humanitarian aid to all those thousands of voiceless citizens of this country who were rendered homeless as a consequence of demolition drive carried out on 10.01.2013 where 1410 hutments were razed and to provide them shelter, food, clothing and other basic need on a war footing;

(i) Pending the hearing and final disposal of the present Petition, stay all demolitions which are going on;

(j) Pass such further and other orders as the nature and circumstances of the case may warrant.

Advocates for the Petitioners
Petitioner No.1

V E R I F I C A T I ON

I, Mrs. Rohini M. Amin, Advocate, having my address at 23, Great Western Building, Room No.132, 2nd Floor, Kalaghoda, Fort, Mumbai-400 023, do hereby do hereby solemnly declare that what is stated in paragraphs 1 to 67 of the foregoing Petition is true to my own knowledge, information and belief and what is stated in remaining paragraphs 7 to 10 is based on information which I verily believe to be true and correct.

Solemnly declared at Mumbai 
on this ___ day of January, 2013. 
Petitioner No.1

(MATHEWS J NEDUMPARA)
Advocates for the Petitioners

   

  

Recent Entry

CBI Cannot Prosecute Offenses Beyond The Territorial Limits Of Delhi: Is The True Legal Position Albeit It Could To Inconvenience.

Section 18 Of MCOCA Act, Which Permits Conviction Based On Confession, Is Unconstitutional Since It Is Violation Of Article 14, 20(3) And 21 Of The Constitution

Public Interest Litigation – A Ravenous Wolf in Sheep's Clothing

The National Lawyer;s Campaign for Judicial Transparancy and Reforms and reply from Former S.C. Judge Justice KRISHNA IYER.

FOR LETTER CLICK HERE

Appoint Judges of the high court by open selection instead of 'invitation'.

Write Petition against demolition of slums

Letter to Chairman of Parliamentary standing committee regarding National Judicial Appointment Commission Bill, 2013

Letter to Governor of Maharashtra in regards to protection of the lives and liberties of its citizens and in particular the poorest Section of the society

RTI on Judges Appointment

Write on declaration of Judge's Assets

Letter To Several Constitutional Authorities suggesting Video Recording of Judicial Proceedings  

Copyright 2015 .

All Right ReservedHome About us ArticlesContact UsPowered by aksis.co.in

Public Interest Litigation – A Ravenous Wolf in Sheep's Clothing

HOMEABOUT USARTICLESCASE & JUDGEMENTSCAMPAIGNSRAMBLING THOUGHTSCONTACT USNATIONAL LAWYERS CAMPAIGN

Campaign

Public Interest Litigation – A Ravenous Wolf in Sheep's Clothing

Date : 07th February 2014
Mathews J. Nedumpara

THE NATIONAL LAWYERS’ CAMPAIGN FOR JUDICIAL TRANSPARENCY AND REFORMS 
– By Mathews J. Nedumpara

A new jurisprudence called Public Interest Litigation (PIL), as Justice Chandra Shekhara Dharmadhikari, one of the well respected Judges of the Bombay High Court, has said, is an offspring of the exasperation of the Supreme Court of the great ignominy it suffered as the superior judicial institution of the democratic India by upholding in the Fundamental Rights Case (ADM Jabalpur v. Sivakant Shukla, AIR 1976 SC 1207) that in the garb of Emergency the executive can even take away or remove from the statute book the very fundamental right to life. ADM Jabalpur, a Five-Judge Constitution Bench of the Supreme Court, barring the brave Justice H.R. Khanna, towed the governmental line and held that during Emergency right to life can be suspended. The Supreme Court, I must say with utmost respect, in an overkill to refurbish its image, for even during the British era and till the Emergency, judiciary was by and large respected for its impartiality, objectiveness, high intellectual and moral abilities, expounded a new jurisdiction called PIL. We, fortunately, at that time had statesmen jurists like Justice Krishna Iyer who are not apolitical Judges, but knew the pulse of the people and the deficiencies of the judicial system otherwise impeccable when it is to meet the requirements of the poorest of the poor strata of the society, who expanded the jurisdiction of Articles 32 and 226 of the Constitution, relaxing the concept of locus standi, right to sue, in other words.

PIL in the 1980s at its inception only meant dilution of the concept of locus standi where a bonded labourer or a blinded prisoner or a slum dweller, who cannot access the superior Courts out of poverty, ignorance, deprivation etc., could be represented by a person acting pro bono publico. In other words, it meant opening up of the doors of the superior Courts under Articles 32 and 226 to such disabled and poor people. It did not mean the Supreme Court or the High Courts substituting themselves for the executive and the legislature or enacting laws, framing or enforcing policies, and that too with the Bench and the lawyer representing the PIL Petitioner and the Government lawyer on the opposite, and none else. PIL was not intended to be a representative suit as provided in Order 1 Rule 8(2) of the Civil Procedure Code. If it is a representative suit, then all parties affected are to be arraigned as Defendants. A representative suit, a concept long in existence right from the 12th Century, always has an essential component of the common law and is distinct from a PIL where a Court intervenes at the behest of a slum dweller or a bonded labourer or a blinded prisoner. In the latter, a person acting pro bona publico is only representing the under-privileged, helpless and the illiterate who cannot represent himself. In simple words the concept of locus standi is relaxed, namely, if Mrs. X is an illiterate, emaciated slum dweller, she could be represented by, say, a social activists, a lawyer, a journalist acting on her behest purely on humanitarian grounds, pro bono publico.

The British Parliament, after enacting the Government of India Act of 1858 for the better governance of India left to the Governor General in Council to enact the Code of Civil Procedure, 1859, the predecessor of the Civil Procedure Code, 1908. The Code of 1859 and Order 1 Rule 8(2) of the CPC of 1908 mandate that where a suit is instituted in a representative capacity, as is the case of what is called PIL today, notice of its institution should be given to all persons interested either by personal service or, where it is not possible, by public advertisement. Rules of the various High Courts and the Supreme Court governing PIL are required to be emergently amended so as to incorporate the principle contained in Order 1 Rule 8 CPC, namely, that no matter of public interest could be decided without notice to the public at large.

A humanitarian and benevolent jurisdiction, which PIL is, established at the hands of legendary Justices Bhagwati, Chandrachud, Krishna Iyer et al, in due course of time, came to be a system where the Court could act as a substitute of the executive and the legislature and act as if it is the executive and the legislature. Since the executive and the legislature remained in their sorriest of state, embroiling in corruption and inefficiency, stepping of the higher judiciary into the domains of the executive and the legislature and wearing the robes of the executive, legislature and judiciary, all in one, was widely welcomed because the judiciary in all the three roles in one acting as a night errant and punishing and tormenting the executive and the legislature was welcomed by all. For instance, the 2G and Coal scams. The new jurisprudence, nay, a misnomer of a jurisprudence, of Court monitored probe meant exponential corruption to be exposed and even powerful political leaders, Union Ministers, and MPs being convicted and sent to jail.

Ours being a country at the top of the ladder in terms of pollution of air, water and environment and the executive having completely failed to prevent destruction and exploitation of forests and often a party to that, the trespass into the domain of the executive and the legislature by the Supreme Court in T.N. Godavarman Thirumalpad v. Union of India & Ors., (2002) 10 SCC 606, constitution of a Central Empowered Committee, etc., are welcomed by the public at large. The Supreme Court, called as a messiah, even received international recognition, though not without its reservation. What the Central Empowered Committee meant and what are its shoddy deals I do not intend to elaborate, to keep this article brief.

There, however, exists another side of the coin, a horrible one, one which made Justice Krishna Iyer to call the order dated 7th May, 1997 in Writ Petition (PIL) No.305 of 1995 passed by a Division Bench of the Bombay High Court in a PIL by Bombay Environmental Action Group (BEAG) as judicial terrorism. Four lakhs of poor slum dwellers in the precincts of Sanjay Gandhi National Park were, to quote Krishna Iyer’s words, “the whole families, helpless, homeless, jobless, piteously jammed into huts and pits are flung furiously out of little tenements and petty roofs by the might of the armed State with Judicial Generals ‘ drest in a little brief authority.” The BEAG, Janhit Manch and certain other self-appointed procurators of public interest, received ready welcome at the hands of Judges appointed since 1994 in a system where Judges appoint themselves and sons, nay, kith and kin of Judges of the Supreme Court and High Courts, sitting and retired, could be appointed to the august office of Judges of higher Courts at a young age of even 40, not seen or experienced the pain, agony and hunger of the poor slum dwellers of Mumbai living in dirt and filth, and directed that post 1st January, 1995 slums should not be regularized, water and electricity connections to their shanties be disconnected and a Committee was set up with the Chief Secretary, DGP et al as members to report compliance. Hundreds, if not thousands, of slums were demolished and even today such ordeal continues.

What prompted me to write these few lines is the recent judgment at the hands of three saintly Judges of the Supreme Court, Hon'ble S/Shri Justices R.M. Lodha, Madan B. Lokur and Kurian Joseph, setting aside the judgment of the Bombay High Court in a PIL by BEAG, which is nothing but “ravenous wolf in sheep's clothing”, which order was secured without notice to a single person out of the five lakhs affected families living purportedly in flats and tenements constructed on “forest land”. The Bench headed by the then Chief Justice of the Bombay High Court Shri Swatanter Kumar, who currently heads the Green Tribunal and now known for certain controversies totally unrelated to the Green Tribunal, did not consider that a PIL can only be for the benefit of the slum dwellers, the bonded labourers, the blinded prisoner and the like, who, out of their poverty, illiteracy and helplessness, cannot on their own approach the superior Courts and not a means to hold homes of five lakhs of families as illegal, they being on purported forest land, without notice and without hearing them; so too the poor slum dwellers. A time has come to put an end to the abuse in the name of PIL and seek abolition of the said jurisdiction. If BEAG or Janhit Manch, nay, even Shanti Bhushan and his Centre for Public Interest Litigation was to conduct a proceeding which is representative in nature, they should follow the principle of audi alteram partem, which requires notice to the public at large.

With kind regards,
Yours sincerely, 
(Mathews J. Nedumpara)

Bar Assn resolves against farewell to Justice Shah but govt goes all out

Bar Assn resolves against farewell to Justice Shah but govt goes all out

PANJIM: Even as the Goa High Court Bar Association decided against a farewell dinner to Justice Mohit Shah, Chief Justice of the Bombay High Court, who is retiring on September 8, the State government went out of its way to arrange a farewell party for the retiring judge.

Justice Mohit Shah was to be accorded a lavish farewell dinner at the Marriott Resort on August 20, but this was moved to the Goa Legislative Assembly Complex due to protests from various quarters.

Herald investigations revealed that the Goa High Court Bar Association, in its meeting on August 17, at the High Court Conference hall, resolved not to accord any farewell to the retiring judge due to his conduct with members of the Bar Association.

However, a senior member of the judicial system called the members of the association asking them the reasons for the resolution and also tried to convince them to revert their decision, which was rejected by the members.
Herald, through its sources, has now learnt that Advocate General Atmaram Nadkarni intervened and spoke to Chief Minister Laxmikant Parsekar and the Defence Minister Manohar Parrikar on the issue, who readily agreed to give a farewell party to the retiring judge.

It may be recalled that Chief Secretary R K Srivastava had recently asked all departments to stop farewell dinners following reports in the media that lakhs of rupees are being spent on farewell dinners to IAS officers.

The government had first decided on a lavish party at Marriott Resort but social activists wrote to the Chief Secretary as well as Justice Shah against this saying the Bombay High Court at Goa is hearing a petition against the same hotel and had also ordered a partial demolition of the hotel.

Herald further dug into the story and found that Justice Shah, who had previously worked as Chief Justice of Calcutta High Court, from December 2009 to June 2010, has quite a close relationship with Parrikar.

“Instead of keeping a very safe distance from politicians, Justice Mohit Shah kept visiting Goa very often, and since March 2012, danced to the tunes of then Chief Minister Manohar Parrikar and Advocate General Atmaram Nadkarni even on the issue of transfer of Judges, possibly with a hope that he would leap to the Supreme Court,” Adv Aires Rodrigues told Herald.
He said an example is how the Goa CBI Court Judge PV Sawaikar was abruptly and unceremoniously shunted.

“Parrikar complained to Justice Shah about Judge Sawaikar, and sought his removal from hearing corruption-related cases. Justice Shah obliged Parrikar, and got Judge Sawaikar removed on the eve of his scheduled pronouncement of an order, which he had reserved in the corruption case against Speaker of Goa Legislative Assembly, Rajendra Arlekar,” Adv Rodrigues said.

He added that there is a need for a high level probe into the nexus between Justice Shah and Parrikar with Nadkarni as a facilitator.

Herald has learnt that the government is set to appoint the retiring judge as the next Lokayukta of Goa, though he has been deemed unfit to be elevated to the Supreme Court by the Collegium.

When contacted, Parsekar denied that any name has been finalised for the post of Lokayukta but maintained that one would be appointed within a month.

“The government has written to the Chief Justice of the Supreme Court for names of eligible retired judges of the Supreme Court as well as the retired chief justices of the High Courts, for the post,” he said, adding “the process should be completed within a month”.

Could a preliminary issue as to the very competence of a court to embark upon an enquiry on a "subject matter" ever be decided by a court without notice to all who are arraigned as a respondent to the proceedings and without hearing them? In other words, whether a preliminary issue as to the substantive jurisdiction of a court be decided by a court (and that too, a civil court , in particular)in limine ?

Decisions of a court  in the realm of its  "substantive" jurisdiction  distinct from "adjectival" involve declaration of law constituting be a "stare decisis" and therefore, the Question is:whether it could be decided without notice to the Attorney General /Advocate General and those arraigned as respondents to the cause

The Civil court can decide itself own jurisdiction and confer jurisdiction upon it even by an erroneous one constituting "res judicata estoppel" while the position is different in the case of Tribunals of limited jurisdiction

civil court cannot decide a question as
to its substative jurisdiction without battle lines are drawn and swords are crossed, nay, without are contest

And Tribunals of Limited jurisdiction cannot at all decide a question as to its own jurisdiction in the substantive realm and the parties ought to be directed to invoke article 228 of the constitution or Chapter XXVII  (A )of the CPC .

Decisions of a court  in the realm of its  "substantive" jurisdiction  distinct from "adjectival" involve declaration of law constituting be a "stare decisis" and therefore, the Question is:whether it could be decided without notice to the Attorney General /Advocate General and those arraigned as respondents to the cause

The Civil court can decide itself own jurisdiction and confer jurisdiction upon it even by an erroneous one constituting "res judicata estoppel" while the position is different in the case of Tribunals of limited jurisdiction

D ress code symbolises apartheid mindset in court. Adv Nedumpara

H C rejects adv Mathew nedumpara'S plea seeking details of judges assets

--- --- Sent by WhatsApp

Judicial officer's also can be now booked under PC act

--- --- Sent by WhatsApp

Campaign Order of Justice Dharmadhikari by dismissing the plea for disclosure of the assets and liabilities of the judges of the Bombay High Court. ..

http://www.nedumpara.com/campaign1-1.html

JUDGMENT OF THE HON'BLE HIGH COURT OF BOMBAY

                                            

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION 

WRIT PETITION NO.1203 OF 2013 

Mathews J.Nedumpara … .. Petitioner 
 vs 
The Hon'ble Chief Justice Bombay High Court & ors .. Respondents

 The Petitioner is a citizen of India and as stated above, a practicing Advocate. He states that out of sheer respect and regard for this institution that he has filed this Writ Petition. He does not wish to derive any personal benefit but, has moved the Court with a desire that the administration of justice in Court as also otherwise should be transparent, fair and reasonable. Once the Right to Information Act, 2005 has been brought into effect then the Act would mandate even this Court on its administrative side to make available, disclose the information and which is referred in the provisions of the Right to Information Act, 2005. 3. It is in furtherance of this legislation and provisions thereof, that the Petitioner made an application seeking information. A copy of this application is at Annexure 'A' to this Writ Petition and information which is sought therein with which we are concerned in the Writ Petition. The said information and details thereof are at pages 24 and 25 of the paper book. It is as follows : “The following queries are raised to gauge whether there is any truth in the aforesaid perception which is so pervasive and lamented by many an eminent men : 1. What is the total strength of Judges in the Bombay High Court ? What is ::: Downloaded on - 22/08/2015 21:58:41 ::: Bombay High Court Rng    4                                                      wp1203.13 the approved/sanctioned strength ? What is the method and procedure of filling the vacancies of Judges ? 2. Are applications/proposals called for from eligible lawyers, subordinate Judges, the government, Media or any other source ? If yes, please name the source/s. 3. If any written suggestions are called for as to the eligibility of the candidate, kindly name the entities or association from whom such suggestions are sought. 4. Is the selection a confidential one and if yes, who are the people privy to the selection ? 5. When could the public ever come to know abut the selection of any person as a Judge of the High Court? Kindly specify. 6. Is there any procedure where the public could offer suggestion as to the eligibility of a particular candidate and if such opportunity is available to the public then particulars of the opportunity to raise objections. 7. How many of the Judges of the Bombay High Court have their immediate relations such as father, father-in-law, mother, mother-in-law uncle, aunt, brother, brother-in-law, sister, sister-in-law, co-brother, Chief Minister, exChief Minister, Governor,ex-Governor, President, ex-president, Judge of Supreme Court, ex-Judge of Supreme Court, Judge of High Court, ex-Judge of High Court, Union Cabinet Minster, ex-Union Cabinet Minister,Minister of State,ex-MOF etc ? 8. Kindly furnish the particulars of those Judges who have relation is holding high constitutional office as Union Minster, Governor, Judge of High Court,Supreme Court etc, as in query to above. 9. It may be possible a Judge may have ore than one such person who holds or have held such high constitutional office. Kindly name the Judges who come under this category . If more than one, please name how may. 10. It is said that Hon'ble Shri Justice Majmudar has five of his immediate relatives as Judges of different High Courts and the Supreme Court. Kindly furnish names of those Judges. IV. A Resolution called “Restatement of judicial values” (also called the Code of Conduct) was adopted by Judges of the Supreme Court in 1977 to declare their assets in confidence to the Chief Justice of India. This was ::: Downloaded on - 22/08/2015 21:58:41 ::: Bombay High Court Rng    5                                                      wp1203.13 reiterated in 1999 in a conference of the Chief Justices of India. It is reliably learnt that many High Court have also adopted the said Resolution. V. In the above background, the following queries are made : (a) Has the High Court of Judicature adopted the Resolution called “Restatement of the judicial values”? If yes, whether the Judges of the Bombay High Court have declared their assets ? (b) If the answer to the above query is in the affirmative where such declarations can be accessed to; whether it is either in the public domain or on the website of the High Court and how a citizen can access it and, if not please furnish a copy thereof. (c) If no declaration of assets is made, is there any reason for the same, whether there is any schedule or programme, even in tentative stage, to declare the assets ? (d) Whether a few Judges have voluntarily declared their assets to the Chief Justice or by such other means and who are the Judges who have done so? (e) Whether any Code of Conduct exists governing the Judges of the Bombay High Court and if yes, particulars/copy thereof.” 4. However, on a perusal of the Writ Petition and the pleadings, we are of the view that the Petitioner has confined the information sought on the queries at para V and re-produced herein above. 5. Each of the queries pertain to the resolution which has been adopted by all the Hon'ble Judges of the Supreme Court and High Courts called the “Restatement of Judicial Values”. According to the Petitioner- ::: Downloaded on - 22/08/2015 21:58:41 ::: Bombay High Court Rng    6                                                      wp1203.13 Applicant, this would require the Judges to disclose and declare their assets. The information in regard to such disclosure ought to be in public domain. Therefore, if the Hon'ble Judges have adopted “Restatement of Judicial Values” and passed a unanimous Resolution in that behalf, the information as regards the same should be provided to an ordinary citizen or the Applicant under the Right to Information Act, 2005. It is not so much of adoption of such a Resolution and the submission of the declaration of Assets but, the contents thereof. They are equally crucial and relevant for the purpose of transparent administration of justice. The Judges possess enormous and wide powers both on judicial and administrative side, their say is final. They make a disclosure of their Assets and declare the details voluntarily. The details and contents of this declaration furnished to the Chief Justice of this Court ought to be disclosed to the members of the public. Independence and impartiality of Judges is not hampered by such open disclosure. That would also be in public interest and in public good. It cannot be overlooked that even Judicial power is in the nature of a trust. Therefore, the information as sought with regard to the contents of the declaration of assets should be provided. 

On such an Application and which has been made to this Court particularly to the Public Information Officer on 27th August, 2010, the Public Information Officer replied and to the extent relevant for us, as under : “As regards Point Nos.7 to 10 of your application, I am to inform you that the said information is not available with the High Court Registry. As regards Point (IV) and (V) (a) to (e) of your application, I am to inform you that information regarding declaration of assets of the Hon'ble Judges of the Bombay High Court is with the Hon'ble the Chief Justice in a fiduciary capacity. The question whether the provisions of the RTI Act apply in respect of the information which is under the control of the Hon'ble the Chief Justice in a fiduciary capacity is subjudice in Special Leave Petition (Civil) Nos. 32855 and 32856 of 2009 before the Hon'ble the Supreme Court. The Supreme Court by an order dated 4/12/2009 has granted an interim stay of the operation of the order dated 24/11/2009 passed by the Central Information Commission for disclosure of such information. In view of the interim stay order of the Supreme Court, the information sought for in Points ((V) and (V) (a) to (e) is not furnished to the applicant. However, if you feel aggrieved by the above said reply,you may file First Appeal before the Registrar (Inspection-1/Appellate Authority of the High Court of Judicature in Bombay having his office at P.W.D.Building, 2nd floor. Fort, Bombay-400 032 within 30 days of the receipt of this letter.” 7. The Petitioner was not satisfied with this reply and therefore, proceeded to challenge the communication/order of the Public Information Officer by filing an Appeal under section 19 of the Right to Information Act, 2005 to the Appellate Authority thereunder. 

 In the Memorandum of Appeal as well, the above stand is reiterated and it is contended that the order dated 8th November, 2010 should be set aside as it is contrary to law, the Appeal be allowed and the Petitioner-Applicant be furnished information particularly whether the Judges of this Court have declared their assets and if so when, to whom and at what frequency and secondly a prayer is made to provide information about the consanguinity, affinity etc of the sitting Judges of this Court with constitutional functionaries. This Appeal dated 29th December, 2010 was heard by the Appellate Authority and by an order dated 28th February 2011 the same came to be dismissed. Pertinently, the conclusion in the Appellate order and relevant for our purpose is in paragraph 7 and 8 and at pages 36 and 37. The same reads as under : 7. “Likewise the appellant urged that even if the information as regards Point No. (7) to (10) is not available with the High Court Registry, the information can be organized without any difficulty. 8. The submission of the appellant appears attractive at the first blush. On a close scrutiny, I find it difficult to accede to the submission that the stay of the order passed by the Delhi High Court by the Supreme Court, does not amount to calling in question the ration of the judgment of the Delhi High Court. Since the matter is subjudice, as the Apex court is seized with the matter of applicability of the provisions of R.T.I,.Act in respect of the information which is under the control of the Hon'ble the Chief Justice, in a fiduciary capacity, no fault can be found with the reply of the P.I.O. that the information cannot be furnished on those points.” 

It is aggrieved and dissatisfied with this Appellate order and refusal of the second Appellate authority to set aside the order of the Public Information Officer (PIO) that the Petitioner has approached this Court. 10. Mr.Jha learned counsel appearing for the Petitioner submitted that the Petitioner has confined and restricted his relief to the above noted aspect. It is the content of the declaration of assets as made by Hon'ble Judges which ought to be disclosed for that would be in furtherance of the Constitutional mandate. Such contents being disclosed to the members of the public can never interfere with the independence, impartiality, fearlessness or judicial ability of a High Court Judge. That contents are disclosed therefore, should be a necessary fall out of the disclosure of the assets and declaration being furnished in respect thereof. If there was no obligation to give such a declaration or furnish the details to the petitioner, then that would not have been made at all. Thus these details are in public domain. Having understood this obligation and to the members of the public which is discharged by making the disclosures,the information relevant thereto, must be completely made available. No part of it is in any way personal to the Judge. Therefore, the refusal of the Public Information Officer and the Appellate Authority to make available this information to the Petitioner particularly on the ground that the said information and declaration is given to the Hon'ble Chief Justice in confidence is wholly illegal. This conclusion is reached because it is held that the declaration is made to the Hon'ble Chief Justice and he acts in a fiduciary capacity. Once a declaration is given to the Hon'ble Chief Justice, then, the control thereof is retained and the contents of the said declaration cannot be disclosed once the relationship is of fiduciary nature or is of a fiduciary character is thus a erroneous conclusion reached by the Authorities according to Mr.Jha. 11. Such a stand is directly contrary to the law laid down by the Full Bench of the Delhi High Court in the case of Secretary General, Supreme Court of India vs Subhash Chandra Agarwal in Letters Patent Appeal No.501 of 2009 decided on 12th January 2010 reported in AIR 2010 DELHI 159. 

  Mr.Jha learned counsel and Mr.Nedumpara Petitioner-inperson have both urged that the appeal against this judgment may be pending in the Hon'ble Supreme Court of India. However, interim stay order of the Hon'ble Supreme Court of India does not wipe out the Judgment of the Full Bench. At best what can be stayed is a operative order and directions passed. There can never be a stay of the judgment. In any event, mere pendency of an appeal and interim order therein, does not mean that the judgment is quashed and set aside. That judgment therefore, has great persuasive value, The judgment of the Delhi High Court has been rendered after very careful analysis of the provisions of Right to Information Act, 2005 and the constitutional mandate. It is submitted that pendency of the matter in the Hon'ble Supreme Court of India therefore, should not in any manner prevent this Court from scrutinizing the legality and validity of the impugned orders. This Court therefore, must independently could go into the issues raised and with the aid and assistance of the judgment of the Full bench of the Delhi High Court. 13. Mr.Jha learned counsel has also submitted that the application seeking information and to be made in the relevant format under the Right to Information Act, 2005 does not require disclosure of reasons or purpose for which information is sought. Secondly, no elaboration is required save and except the nature of the information sought. Therefore, a hyper-technical view of the matter cannot be taken. The argument is that this is a fit case for issuance of a writ of certiorari to quash and set aside the impugned order. 14. After Mr.Jha concluded his arguments, Mr.Nedumpara Petitioner-in-person sought leave of this Court to make additional submissions. 15. We have given him that permission, heard him at length. Mr.Nedumpara has adopted the arguments of Mr.Jha and in addition submitted that immense faith and trust is reposed in the Institution of Judiciary does not mean that this court can resist the disclosure of the contents of the declaration. The Registry of this Court should not therefore, be permitted to wriggle out of or dilute the mandate of the Constitution of India and the Right to Information Act, 2005. This Court therefore, should direct the Registry to make available the information sought.  In addition to the reliance placed on the full bench Judgment of the Delhi High Court, the learned counsel relied upon the judgment of the Hon'ble Supreme Court of India in the case of Shree Chamundi Mopeds Ltd vs. Church of South India Trust Association, Madras (1992) 3 SCC page 1. Reliance is also placed upon an order passed by this Court in Criminal Application No.4230 of 2006 decided on 18th December, 2006. (Pramod K.Shah vs Commissioner of Custom (Export Promotion S.I.I.B (Export) & anr). 17. Mr.Nedumpara has relied upon the judgment of the Hon'ble Supreme Court of India in the case of Kunhayammed & ors vs State of Kerala reported in (2000) 6 Supreme Court Cases 359. He submits that this Judgment reiterates the principle that mere refusal of the Hon'ble Supreme Court to entertain a Special Leave Petition or dismissal thereof does not attract the principle of res judicata. It does not culminate into merger of the impugned decision in the order of the Hon'ble Supreme Court. Even if dismissal of the Special Leave Petition is by speaking or reasoned order, this Doctrine will have no application. In the circumstances he would submit that pendency of this matter before the Supreme Court of  India should not prevent this Court from dealing with the controversy and allowing this writ petition by following the Full Bench judgment of the Delhi High Court. 18. On the other hand, Mr.Khambata learned senior counsel appearing on behalf of the respondent nos.1, 3 and 4 submits that the judgment of the Full Bench of the Delhi High Court is not binding on this Court and only has a persuasive value. The reasons assigned in the impugned orders are not erroneous and they cannot be termed as vitiated by perversity or an error apparent on the face of record warranting interference by this Court in its jurisdiction under Article 226 of the Constitution of India. The tests that have been laid down for issuance of a writ of certiorari are well-settled. Alternatively, and without prejudice it is submitted that in the writ petition there is no prayer to disclose the information or the contents of the declaration or details of assets. It is submitted that the Petitioner is a lawyer and an Advocate. He is legally trained and therefore, his pleadings have to be specific. In this case, having understood the controversy, the only pleading that is relevant is to be found in paragraph 7. of the Writ Petition. That does not in any way reflect that what has been argued and before us is based on the pleadings. It is dehors the same. Secondly it is submitted that the prayer in the writ petition may be wide but, the reliefs are now restricted and focus only on the contents of the declaration. Inviting our attention to the Full Bench Judgment of the Delhi High Court, it is submitted by Mr.Khambata that before the Delhi High Court the respondents had sought information as to whether the declaration of assets was filed by Judges of the Supreme Court and also whether High Court Judges have submitted a declaration about their assets to the respective Chief Justices in the States. The respondents had not sought copies of the declaration or contents thereof or even names etc of the Judges furnishing the same. It is in that context that all observations have been made. These observations are not constituting the ratio of the decision. There are certain general observations and which are in the nature of obiter dicta. At best, it is the ratio of the decision which will have persuasive value. A obiter dicta or any casual observation in a Judgment cannot bind this Court. Even otherwise, the Appeal against this Judgment is pending and the Supreme Court is seized of the matter. Therefore, both the authorities have thought it fit not to go ahead and disclose or provide the information as sought by the Petitioner but, await the decision of the Hon'ble Supreme Court of India. Such an approach cannot be said to be legally flawed nor it suffers from a serious legal infirmity as would warrant interference in writ jurisdiction. The Petition therefore, must be dismissed. In any event, this Court must await the decision of the Hon'ble Supreme Court of India on such crucial and relevant issue. 19. Further alternatively Mr.Khambata submitted that the information as sought is protected by section 8 (1) (j) of the Right to Information Act, 2005. He has taken us through the Act and to submit that every information which is to be provided in terms of this law postulates a record to be maintained, but its disclosure in certain cases is exempted and under the Act itself. Therefore, the subject information is by section 8 (1) (j) of the RTI Act and all the more the writ petition should be dismissed. 20. With the assistance of the learned counsel appearing on both sides, we have perused the Writ Petition, Annexures thereto, the relevant provisions of the Right to Information Act, 2005 and the decisions brought to our notice.  At the outset, we wish to clarify that for the purpose of the present Writ Petition, we are not dealing with the rival contentions as to whether the information and as sought by the Petitioner-Applicant is exempted and covered by section 8 (1) or any clauses thereof. That is a aspect which is not required to be gone into and decided in the facts and circumstances of the present case. 22. All that we are required to consider is whether the stand of the Public Information Officer and that of the Appellate Authority can be held to be so vitiated as would require application of the principles based on which a writ of certiorari can be issued by this Court in its jurisdiction under Article 226 of the Constitution of India. 23. Way back in 1952 and to be precise in the decision reported in AIR 1952 SUPREME COURT 192 G.VEERAPPA PILLAI VS RAMAN AND RAMAN LTD a five Judge Bench of the Hon'ble Supreme Court of India held that such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly  without jurisdiction or in excess of it, or in violation of the principles of natural justice or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of record, and such act, omission, error or excess has resulted in manifest injustice. However, extensive the jurisdiction may be, it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decisions impugned. 24. This decision of the Hon'ble Supreme Court of India and the principles laid down therein have been applied and reiterated time and again. Further a Bench of the Hon'ble Supreme Court of India had occasion to consider application of these principles in the case of M/s SHIV SHANKAR DAL MILLS ETC VS STATE OF HARYANA reported in AIR 1980 SUPREME COURT 1037. A three Judge Bench of the Supreme Court presided over by Hon'ble Mr Justice V.R.Krishna Iyer held that Article 226 grants an extraordinary remedy which is essentially discretionary, although founded on legal injury. The power of this Court is thus, flexible and it can be exercised in order to protect public interest.  In the present case, we are required to apply these very tests and scrutinize the orders impugned in this Writ Petition. We find that the foundation of the relief in this Petition is the information which is sought by the Petitioner-Applicant and which we have reproduced herein (See sub-para of para 8 at page 25). That information itself is sought by relying upon the judgment of the Full Bench of the Delhi High Court in the case of Secretary General, Supreme Court of India vs Subhash Chandra Agarwal. (supra). It is common ground and not disputed before us that this Judgment of the Division bench was rendered on an Appeal against the order of the learned Single Judge of the Delhi High Court. The information sought by Subhash Chandra Agarwal and particularly of the nature mentioned extensively in the decision of the Single Judge and Division Bench raised issues summarized in paragraph 14 of the judgment of the Division Bench. The information sought inter alia was whether a disclosure of their Assets has been made by judges pursuant to the Resolution passed in a meeting convened of all Chief Justices and presided over by the Hon'ble Chief Justice of India and whether such a disclosure is under a public Act done in discharge of duties of their office and whether such information is accessible or the exemption under section  8 of the R.T.I. Act 2005 applies to the same. After summarizing the conclusions of the single Judge and the challenge in Appeal, in paragraph 29 of the Full Bench judgment, the issues have been crystallized. The issue no.2 was that if the answer to the first issue is in the affirmative, whether Chief Justice of India held the “information” in his “fiduciary” capacity within the meaning of that expression used in section 8 (1) (e) of the Right to Information Act, 2005 and whether the information about the declaration of assets by Judges of the Supreme Court is exempt from disclosure under the provisions of section 8 (1) (j) of the Act. The core issue however, is whether the respondents before the Full Bench had any right to the information regarding making of a declaration by Judges pursuant to this 1997 Resolution. 26. Since both sides have conceded before us that the Full Bench decision of the Delhi High Court has only a persuasive value and it has no binding force, then, all that the Public Information Officer has informed the Petitioner-Applicant is that the information sought and regarding declaration of assets of the Hon'ble Judges of this Court is in a fiduciary capacity. The Public Information Officer has informed the  Petitioner-Applicant that whether the provisions of Right to Information Act apply in respect of the information which is under the control of the Hon'ble Chief Justice in a fiduciary capacity is a subjudice matter in as much as it is being considered by the Hon'ble Supreme Court. It may be that the Public Information Officer has held that the issue is pending before the Supreme Court so also there is interim stay of the order of the Central Information Commissioner and as confirmed by the Delhi High Court but, that is not as much relevant and germane for us. 27. We are also not required to go into larger issues and whether the judgment of the Delhi High Court is stayed or what stayed is the operational order and directions therein. We are mindful of the test laid down in the case of SHREE CHAMUNDI MOPEDS LTD (supra) for we have applied it a number of times. That is the pendency of an Appeal or the grant of interim stay does not wipe out a Judgment under Appeal leave alone quash it. Once we are of the view that the Full Bench Judgment of the Delhi High Court had only persuasive value, then, the order passed by the Public Information Officer and confirmed by the Appellate Authority can hardly be termed as perverse or vitiated by a error of law apparent on the face of the record. The authorities have informed that so long as the Hon'ble Supreme Court is seized of the larger and core issues of applicability of the Right to Information Act and the nature of the information which is under the control of the Hon'ble Chief Justice, then, the authorities did not commit any error of law nor can their conclusions are palpably erroneous requiring our interference in writ jurisdiction. It is conceded before us that the Hon'ble Supreme Court of India is seized of the issue and particularly noted in the order reported in 2011 1 SCC 496 C.P.IO.vs Subhash Chandra Agarwal. There the respondent-Subhash Chandra Agarwal had sought information regarding the correspondence exchanged between the Constitutional Authorities with file notings relating to the appointment of certain Judges of the Hon'ble Supreme Court of India. The Public Information Officer, Supreme Court replied to the Applicant informing him that the Registry does not deal with the matter pertaining to appointment of Judges and therefore, the prescribed procedure does not require the Registry to maintain the information is “neither available nor maintained.” Subhash Chandra Agarwal preferred an Appeal before the Appellate Authority and that authority set aside the orders passed to the above effect and directed the Public Information Officer,  Supreme Court to furnish the information sought. That order came to be challenged and during the course of such challenge, reliance was placed on the judgment of the Delhi High Court in the case of C.P.I.O. Supreme Court of India vs Subhash Chandra Agarwal (the above referred Judgment of the learned Single Judge and affirmed in Letters Patent Appeal by the Delhi High Court.) The Hon'ble Supreme Court in paras 9,10,11, 13 and 14 and held as under: 9. “That on a holistic reading of the said judgment, it appears to us that the Court was mainly dealing with the question as to whether any immunity could be claimed from production of the records in respect of the correspondence between the Law Minister and the Chief Justice of India and the relevant notings made by them in regard to the transfer of a High Court Judge including the Chief Justices of the High Court which were extremely material for deciding whether there was full and effective consultation? It is observed at more than one place that the non-disclosure of the said documents would seriously handicap the petitioner therein in showing that there was no full and effective consultation with the Chief Justice of India or that the transfer was by way of punishment and not in public interest. It is observed: It would become almost impossible for the petitioner, without the aid of these documents, to establish his case, even if it be true? The Court felt that “all relevant documents should be produced before the court so that the full facts may come from the people, who in a democracy are the ultimate arbiters.” The Court further observed : “We do not see any reason why, if the correspondence between the Law Minister, the Chief Justice of the High Court and the Chief Justice of India and the relevant notes made by them in regard to discontinuance of an Additional Judge are relevant to the issues arising in a judicial proceeding, they should not be disclosed. Where it becomes relevant in a judicial proceeding, why should the Court and the opposite party and through  them, the people not know what are the reasons for which a particular appointment is made or a particular Additional Judge is discontinued or a particular transfer is effected. We fail to see what harm can be caused by the disclosure of true facts when they become relevant in a judicial proceeding.” 11. Having heard the learned Attorney General and the learned counsel for the respondent, we are of the considered opinion that a substantial question of law as to the interpretation of the constitution is involved in the present case which is required to be heard by a Constitution Bench. The case on hand raises important questions of constitutional importance relating to the position of the Hon'ble the Chief Justice of India under the Constitution and the independence of the judiciary in the scheme of the Constitution on the one hand and on the other, the fundamental right to freedom of speech and expression. Right to Information is an integral part of the fundamental right to freedom of speech and expression guaranteed by the Constitution. The Right to Information Act merely recognizes the constitutional right of citizens to freedom of speech and expression. Independence of judiciary forms part of basic structure of the Constitution of India. The independence of judiciary and the fundamental right to free speech and expression are of a great value and both of them are required to be balanced. 12. The Constitution is a fundamentally a public text- the monumental character of a government and the people-and the Supreme Court is required to apply it to resolve public controversies. For, from our beginnings, a most important consequence of the constitutionally created separation of powers has been the Indian habit, extraordinary to other democracies, of casting, social, economic, philosophical and political questions in the form of public law remedies, in an attempt to secure ultimate resolution by the Supreme Court. In this way, important aspects of the most fundamental issues confronting our democracy finally arrive in the Supreme Court for judicial determination. Not infrequently, these are the issues upon which contemporary society is most deeply divided. They arouse our deepest emotions. This is one such controversy. William J.Bennan, Jr.in one of his public discourse observed : “We current Justices read the Constitution in the only way that we can: as twentieth century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate  question must be, what do the words of the text mean in our time? For the genius of the Constitution rests not on any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to copy with current problems and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be the measure to the vision of our time. Similarly, what those fundamentals mean for us, our descendants will learn, cannot be the measure to the vision of their time. This realization is not, I assure you a novel one of my creation. Permit me to quote from one of the opinions of our Court. Weems vs United States, written nearly a century ago (US p.373). “... Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital, must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments designed to meet passing occasions. They are, to use the words of Chief Justice Marshall,”designed to approach immortality as nearly as human institution is can approach it” The future is their care, and provision for events of good and bad tendencies of which no prophesy can be made. In the application of a constitution, therefore our contemplation cannot be only of what has been but of what may be.” 13. The current debate is a sign of a healthy nation. This debate on the Constitution involves great and fundamental issues. Most of the times we reel under the pressure of precedents. We took to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time.? 14. Following substantial questions of law as to the interpretation of the Constitution arise for consideration: 1. Whether the concept of independence of the judiciary requires and demands the prohibition of furnishing of the information sought? Whether the information sought for amounts to interference in the functioning of the judiciary? 2. Whether the information sought for cannot be furnished to avoid any erosion in the credibility of the decisions and to ensure a free and frank expression of honest opinion by all the constitutional functioneries which is essential for effective consultation and for taking the right decision.  Whether the information sought for is exempt under section 8 (1) (j) of the Right to Information Act ?” 28. Thus, the Hon'ble Supreme Court concluded in the above order that a question involving interpretation of the Constitution is raised. That and other question go to the root of the case and must be answered by a authoritative pronouncement. It is that aspect which has weighed heavily on the authorities under the Right to Information Act whose orders are impugned before us in this Writ Petition. If they are of the opinion that the matter is still not put to rest or concluded and issues raised are debatable and being debated and discussed in the highest Court of the country then such conclusion on their part cannot be interfered with in our Writ jurisdiction as if we are a Court of further Appeal. This cannot be said to be perverse nor can the discretion be interfered with by terming it as arbitrary or capricious. So long as the Supreme Court is seized of the matter, it would be fair, just and proper on our part not to interfere with the impugned orders. The applicability of the Right to Information Act, 2005 and information sought thereunder are aspects that have been highlighted before us. All pleas are based on reliance of the Petitioner-Applicant on the Full Bench Judgment of the Delhi High Court. Once that is under scrutiny of the Hon'ble Supreme Court and its judgment and declaration would be in terms of Article 141 of the Constitution of India then all the more, we do not think that we should exercise our writ jurisdiction in this case, which is essentially discretionary. 29. As a result of the above discussion, this Writ Petition fails. It is dismissed but, without any costs. All Applications are also dismissed as each one of them is preferred to support the stand of the Petitioner in the Writ Petition. 

G.S.KULKARNI, J.       S.C.DHARMADHIKARI, J. 

 Bombay High Court