JUDICIAL INDEPENDENCE AND SUPREMACY IN INDIA

http://adv-a-c-philip.blogspot.in/2016/08/judicial-independence-and-supremacy-in.html

http://adv-a-c-philip.blogspot.in/2016/08/judicial-independence-and-supremacy-in.html

SUPREMACY OF ORGAN IN A BODY.  can be read on the above blog URL

AN OPEN LETTER TO THE LEGENDARY FALI S. NARIMAN

8^th August, 2016

AN OPEN LETTER TO THE LEGENDARY FALI S. NARIMAN

To

    Shri Fali S. Nariman,

    Senior Advocate,

    Supreme Court of India,

    New Delhi.

Most Respected Sir,

                   Before the NJAC case, Sir, I had only heard about you, not even heard your arguments; you were a demi-God to me.  In the NJAC case, the hearing of which went on for 31 days, I heard every word of yours with great patience.      I must confess that you no longer remain in my mind to be a demi-God; you are almost 30 years senior to me by age and practice; I have all the respect for you for the age and standing which I am obliged to confer.  I would not have asked any question to you even while I had the greatest of disagreement with you but for the fact that the judgments of the Supreme Court in the NJAC case had not meant the abrogation of the right of 95% of the legal fraternity who hail from humble backgrounds, being the sons and daughters of farmers, teachers, taxi drivers and small time traders, the common man, for an equal opportunity to aspire for the high constitutional office of the Judges of the Supreme Court and High Courts. I would not have asked this question had Articles 14 and 16 of the Constitution, namely, equality before law and equal opportunity for public offices, are not infringed; I would not have asked this question had the will of the people represented by both the Houses of the Parliament and 21 State Assemblies, which have ratified the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 (the Acts, for short), had not been thwarted by means of the judgment in the NJAC case, where a Bench of five Hon'ble Judges dared to say that they are quashing the said Acts; I would not have asked this question had I not had equally, if not greater, concern for the majesty of the Supreme Court and its pivotal role as the highest Court of the land and had I not have a deep concern for its feature as the Supreme Court.  Sir, you are the doyen of the Bar, the legend, and in comparison I am no one.  Yet,     I dare to ask this question, for, the energy I draw for it is the power of conviction, the moral power. The questions which I ask are three, namely:

(1)         Sir, you pleaded in the NJAC case that the aforesaid Acts infringed or violated the “independence of judiciary”, one of the basic structures of the Constitution and, therefore, they are liable to be struck down as unconstitutional. You had no case that the said Acts violated any fundamental rights of SCAORA or any of its member; so too of any of the Judges of the higher judiciary whose appointments and transfers were to be regulated by the said Acts.  You had no case that there existed a “person aggrieved” whose fundamental or legal rights were infringed and who is entitled to enforce his remedies which the law will entail in him and the Supreme Court is the forum to enforce such remedies.  Your only case was that the said Acts, which are in the realm of executive or legislative policy, violate the basic structure of the Constitution.  Let me underline that you had no case that anybody’s fundamental right is violated; your only case was that the said Acts violated the basic structure of the Constitution; so too was the case of Shri Anil
Diwan, a no less stalwart as your kind self, representing the Bar Association/Council of India, Shri Dattar, representing the Madras Bar Association, and Shri Bhushan (Centre of all PILs).Let me ask you a simple question – if violation of basic structure of the Constitution is justiciable, who all are entitled to seek such a declaration at the hands of the Supreme Court and who all are entitled to be heard in support or in opposition thereof?  I am sure you will never say that the right to seek such a declaration is the exclusive privilege of leaned and privileged lawyers like you who practice in the Supreme Court. I am sure you will concede that such right is invested in every lawyer who practices in the different parts of the country. I am sure you will also not dispute that such right cannot be the monopoly of lawyers; it has to be conceded to each and every one of the 129 crores people of this country.If basic structure of the Constitution or violation thereof is justiciable and amenable to judicial review, then the entire people of this country have a right to be a co-Petitioner or Defendant to support or oppose it. There cannot be a more ridiculous proposition that a Court should decide a case where it has to concede a right of participation in every citizen either in support of against it.  I am sure you will concede that if SCAORA had a right to seek that the said Acts are unconstitutional, those who supported the said Acts, millions and millions, too had a right to say that the said Acts were constitutional. I am made to understand that hundreds of such petitions are in the offing.

(2)         Secondly, the ordinary lawyers and ordinary citizens of this country are not much concerned about who has supremacy or final say, whether the judiciary or the executive, in the matter of appointment of Judges to the higher judiciary.  An ordinary lawyer who has an ambition to become a Judge has only one question as to whether a day will come when applications are invited for selection and appointment of Judges when he could apply for and submit his expression of interest and whether his application will be fairly considered.  And what the common man is all concerned about is whether he will have the best of Judges from among the available eligible lawyers.  The concern to them is not who is appointing, but who are appointed; whether it is from a small pool of kith and kin of sitting and former Judges of the Supreme Court and High Courts, their juniors, celebrated lawyers, Chief Ministers, Governors et al, and a few first generation lawyers who are all politically connected or are close to big industrial houses or from a larger pool which will offer greater diversity. The question, therefore, which I pose is, would you be kind enough to address the real issue as to who are selected and how they are selected and appointed.  The common man is not interested in the supremacy of the judiciary or of the executive; what he wants is an independent Judicial Commission which will select the best Judges by recourse to a transparent procedure. Now the question is, will you join us to demand advertisement of the vacancies of Judges by the collegium, invitation of applications, processing the same and selection and appointment of the most eligible and deserving candidates as Judges, no matter even if it is to be by the collegium.

(3)         The third question I ask is, will you make a little sacrifice, which I believe you are duty bound to do, to strengthen the confidence of the common man in the higher judiciary.  The NJAC case, in the eyes of the common man, was nothing but the fox being the jury at the goose’s trial.  Veteran Col. Ved Prakash from Jaipur, told the Constitution Bench in the NJAC case, while it heard the public at large on the ways and means by which the collegium system could be improved, that the judgment in the NJAC case was a judicial coup de’tate; that thousands and thousands of people shared the same opinion.  Hon’ble Justice Khehar is a noble judge whom I hold in high esteem; to me His Lordship is a demi-God.  Yet, the public perception is that His Lordship decided the NJAC case where there is a conflict of interest.  His Lordship is expected to assume the august office of the Chief Justice of India on 5.1.17 and to preside over the collegium.  The public perception is that had the aforesaid Acts not been set aside, His Lordship would not have assumed the absolute power of selection and appointment of judges, which the judgment in the NJAC case conferred upon him, but His Lordship would have only been heading the NJAC where two eminent persons, who were to be selected by a Committee consisting of the CJI, as well, could have negativated a proposal at His Lordship’s hands.

As I said at the outset, you are always seen as the epitome of all virtues, the highest of ethical standards, a role-model for the legal fraternity, nay, even the entire country.  You were known to be highly critical of the collegium system, but after your son Hon’ble Shri Justice Rohinton Nariman was elevated as a Judge of the Supreme Court, the perception, is that your gracious self unconsciously, non-consciously and sub-consciously,though, identified with the judicial fraternity and fought for the collegium which, Sir, you yourself had castigated as opaque, non-transparent and a failed one.  Sir, you practice in the Supreme Court where your son is a Judge; it is plainly against the Rules of the Bar Council of India.  Judges in Mumbai, Punjab & Haryana and Allahabad, where their kith and kin practice in large numbers, may offer an excuse that the Bar Council of India Rules require a strict interpretation and since you are not appearing before the Bench of which your son is a member you commit no breach of ethics.  I dare to ask you in all humility, Sir, are you subscribing to the very same excuse?

                   With respectful regards,

                                                                Yours sincerely,

                                     

Sd/- 

         (Mathews J Nedumpara)

President.

CORE AGENDA OF THE NATIONAL LAWYERS' CAMPAIGN FOR JUDICIAL TRANSPARENCY AND REFORMS

THE WRIT PETITION CHALLENGING THE SENIOR ADVOCATE DESIGNATION IN INDIA

 The case challenging the Senior Advocate designation has been registered as W.P.(C) 6331/2016 is listed  for tomorrow  before Hon'ble High Court of Delhi in Court No.1(DB), Item No.20. HON'BLE THE CHIEF JUSTICE

HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

👆🏿National Lawyers’ Campaign For 

Judicial Transparency And Reforms  

and A.C.Philip   …PETITIONERS 

Versus 

The B C I and UOI …RESPONDENTS

 🍀http://adv-a-c-philip.blogspot.in/2016/07/petition-against-designation-of-senior.html                                                                     🍀http://adv-a-c-philip.blogspot.in/                                                               🍀👆🏿THE PETITION AGAINST THE DESIGNATION OF SENIOR ADVOCATES CAN BE READ ON THE ABOVE LINKS OF BLOG

The Petitioner, an infant Girl of 13 days is a citizen of India. the poorest of the poor section of the society. They possess nothing to be reminded of the words of Jesus Christ, “The foxes have holes and birds of the air has nest but the son of man has nowhere to lay His head”.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.      OF 2016

Unnamed Girl Child of 13 days
Through its Mother the Natural Guardian
Noori Sameer Mujavar . …Petitioner

Versus

State of Maharashtra & Ors. …Respondents

P R O F O R M A
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Direction and Prothonotary’s order]
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P R O F O R M A
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Coram appearance. Court’s order or]orders
Direction and Prothonotary’s order]
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P R O F O R M A
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Office Notes, Office Memoranda of ]Court or Judge’s
Coram appearance. Court’s order or]orders
Direction and Prothonotary’s order]
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.      OF 2016

Unnamed Girl Child of 13 days
Through its Mother the Natural Guardian
Noori Sameer Mujavar . …Petitioner

Versus

State of Maharashtra & Ors. …Respondents

INDEX

Sr. No
Particulars
PAGE No.

Proforma

Synopsis.

Memorandum of Petition.

Vakalatnama.

Memorandum of Registered Address.

List of Documents

Exhibit “A’’
A copy of the Notification No.LEN10/2001/ P.F.225/J-1 dated 4th April, 2002 issued by the Revenue Department of the Government of Maharashtra

Exhibit “B”
A Copy of the Notification Dated 17/04/2008 Extending the cut of date to 1/1/2000.

Exhibit “C”
Notification dated 12.8.2014 bearing No. ZPD/1001/PN 125/14.ZPS-1 extending the cut-off date from 1st January, 1995 to 1st January, 2000.

Affidavit in support of the Writ Petition.

Advocate’s Certificate

Advocate for the Petitioner

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.      OF 2016

Unnamed Girl Child of 13 days
Through its Mother the Natural Guardian
Noori Sameer Mujavar .
Residing at Kavthekhadi,
Versova, Andheri (west)  Mumbai…Petitioner

Versus

State of Maharashtra & Ors. …Respondents

SYNOPSIS

S.No.
Date
Events
Exhibit
Page No.
1

The Petitioner, an infant of 13 days old,  constitutes the poorest of the poor strata of the society.  She hails from _______  A good number of slum dwellers  hail from the interior parts of Maharashtra.  Some of them are born and brought up in the very slum itself.  The Petitioner’s parents were forced to come to Mumbai in search of a livelihood faced with extreme poverty.  Unlike other cities in India where some kind of rented accommodation could be afforded even  by the poorest of the poor, in Mumbai the rent of even a match box like apartment would have meant more than their monthly income.  They have only one option, to live on the street, under the bridges or set up a shanty, namely, a plastic sheet over their head wherever little space could be found.  Mumbai being a marshy, unkempt island, millions of people who come in search of a job for their mere existence have to set up shanties wherever some vacant space is found.  Thousands of poor people set up such shanties near and around the Kavthekhadi, Versova, Andheri (west)  Mumbai..

2

The Authorities resorted to the most barbarian, cruel and inhuman means of sending bulldozers and JCBs with large contingent of police heavily armed, to destroy the shanties of the Petitioners and others and reduced their personal belongings, utensils, study materials of school going children, clothes, small possessions etc., to rubbles

3
4.4.2002

The State Government also took note of the aforesaid social and economic reality and took a policy decision to regularize all slums which were set up prior to 1st January, 1995 vide Notification No.LEN10/ 2001/P.F.225/J-1 dated 4th April, 2002 issued by the Revenue Department of the Government of Maharashtra regularizing such shanties/slums which have come into existence as of 1st January, 1995.  Later the State Government took note of the fact that fixing a cut-off date as 1st January, 1995 is unrealistic and would mean thousands of slum dwellers being denied the benefit of regularization of their occupation, which is illegal in the eyes of those who are heartless, feudalistic et al.  Accordingly, it issued a Notification dated 12.8.2014 bearing No. ZPD/1001/PN 125/14.ZPS-1 extending the cut-off date from 1st January, 1995 to 1st January, 2000. 

“A” & “B”

Date: _____ day of March  2016.

Mumbai

Advocate for the Petitioner

Acts Relied upon:
Slum Rehabilitation Act

Constitution of India.

Authorities to be relied on:

At the time of hearing
IN THE HIGH COURT OF JUDICATURE AT Bombay

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.      OF 2016

Unnamed Girl Child of 13 days
Through its Mother the Natural Guardian
Noori Sameer Mujavar .
Residing at Kavthekhadi,
Versova, Andheri (west)  Mumbai…Petitioner
Versus

1) State of Maharashtra,
represented by the Chief Secretary,
Mantralaya, Mumbai 400 032.

2) The Union of India, represented by its
Secretary in the Department of
Urban Development and Poverty
Eradication, Nirman Bhavan,
New Delhi.

3) Municipal Commissioner,
           Municipal Corporation of   
           Greater Bombay,
           Mahanagarpalika  
           Marg, Opp. C.S.T. Station,    
           Mumbai – 400 001.

4) The Commissioner of Police,
Greater Mumbai,
Crawford Market,
Mumbai. …Respondents

TO

THE HONOURABLE THE CHIEF JUSTICE
AND THE OTHER HONOURABLE PUISNE
JUDGES OF THIS HONOURABLE Court

HUMBLE PETITION OF THE Petitioners ABOVENAMED UNDER Article 226 OF THE CONSTITUTION OF INDIA
MOST RESPECTFULLY SHEWETH:

The Petitioner, an infant Girl of 13 days is a citizen of India. Since the Petitioner is only 13 days old, her naming ceremony as per rituals is yet to take place.  Petitioner is a resident of Kavthekhadi, Versova, Andheri (W) Mumbai., a slum dweller, whose family ekes out a living by the female members working as maids and the male members as sundry workers.  They constitute to be the poorest of the poor section of the society.  They possess nothing to be reminded of the words of Jesus Christ, “The foxes have holes and birds of the air has nest but the son of man has nowhere to lay His head”.  Petitioner and thousands like him/her are born in poverty, hunger, destitution and live in the mire of illiteracy and ignorance since their early childhood have never ever enjoyed happiness and the pleasure of life, but only pain, hunger, poverty, being driven away from wherever they tried to make their humble beds, on pavements, under the bridges etc., left with no option have set up shanties on the precincts of the Versova, Andheri (west)  Mumbai Mumbai.  These poor and hapless keep their body and soul together by working day in and day out for paltry sums.
The Petitioner an infant of an infant Girl of 13 days is the residents of Rahul Nagar, a slum situate at Versova, Andheri (west)  Mumbai in Mumbai and is filing this Petition under Chapter V, Rule 3 of the Bombay Original Side Rules.  Mrs. Noori Sameer Mujavar has filed the affidavit, as the natural guardian /  a next friend to the Petitioners and she has no interest directly or indirectly adverse to that of the minor, and she is otherwise a fit and proper person to act as such next friend. The
The Petitioners’ parents have set up their shanties prior to 1995/  2000 dates which are relevant since the Government of Maharashtra has taken a policy decision to regularize all slums set up prior to 1995/2000.  There are about 70 families who, like the Petitioners,  living in almost inhuman conditions in Kavthekhadi Versova, Andheri (west)  Mumbai.  They have obtained electricity connection,  ration card,  Aadhar Card etc.  and with the little savings over the years they could purchase some utensils,  furniture etc.  The parents of the petitioner are illiterates and, as aforesaid, constitute the weakest of the weaker section of the society.  Being illiterates and living in extreme poverty and depravation, they did not come to know about the PIL and the orders passed therein by this Hon'ble Court, particularly the monitoring mechanism evolved therefrom. 
The Petitioner through her natural guardian is constrained to institute the instant petition,  since the BMCI MHADA without any rhyme or reason and without any Notice whatsoever and without giving any opportunity for the Petitioner’s kith and kin  to remove their personal belongings,  the most important things such as medicines, clothing, and basic summer clothings, nay,  even without allowing them to remove their personal belongings,  on ________,  armed with massive police force,  using JCBs and other equipments,  demolished their shanties and rendered them homeless,  without providing any alternative accommodation or any humanitarian aid such as water,  food,  medicine,  Clothing, especially in the chilling weather.  The Petitioner being only 13 days old runs a very high risk of loosing her life under the given circumstances.
The seemingly brutal act of attacking the Petitioner, has left her with no roof over its head thereby endangering its very existence. The Petitioner, his mother, sisters, so too elderly women, mothers with infants and toddlers were left to be exposed to the hot and humid nights so also the scorching heat without a shade over their heads or clothes to protect; much less, even water to drink.  At a time when they were cursing themselves hopelessly, having no idea what was to be done,  where/ how to seek justice;  they were advised that though humble, helpless and penniless they were, they could surely knock the doors of this majestic court under Article 226 of their Constitution. 
The Petitioner through his/her guardian is advised that the injustice to which they are subjected to, the indescribable pain, agony and suffering they are subjected to, by the most Cruel, illegal, arbitrary and inhuman act of the BMC, MHADA and Police authorities require no elaboration for there cannot be a greater infringement of their very right to life,  the protection in terms of 14, 19 and 21 of the Constitution than the one as the instant.
  As stated earlier, it is the poverty, destitution, hunger and illiteracy that made Petitioner’s parents and thousands like them to set up shanties in the precincts of the Kavthekhadi Versova, Andheri (west)  Mumbai Suffice to say, the Respondents State of Maharashtra and the Mumbai Municipal Corporation, instead of finding a holistic solution to the greatest problem which the city of Mumbai faces today, namely, of providing a roof over the heads of the millions of homeless, which is certainly possible if the city is allowed to go vertical, supported by Metro and wide roads, so too by utilizing the large extent of vacant land today termed as non-development zone either because they are salt pans or mangroves, have resorted to the most barbarian, cruel and inhuman means of sending bulldozers and JCBs with large contingent of police heavily armed, to destroy the shanties of the Petitioners and others and reduced their personal belongings, utensils, study materials of school going children, clothes, small possessions etc., to rubble.  The Hon'ble Judges of this Court are benevolent, large hearted, compassionate, justice conscious, humane, wise and sagacious and it is undoubtedly preposterous for the Petitioners to go on elaborating what it means for a poor man to have his shanty demolished and his little belongings to be reduced to rubble.
The Petitioners constitute the poorest of the poor strata of the society.  They hail from different parts of the country and belong to different religions.  A good number of them hail from the interior parts of Maharashtra.  Some of them are born and brought up in the very slum itself.  The Petitioners were forced to come to Mumbai in search of a livelihood faced with extreme poverty.  Unlike other cities in India where some kind of rented accommodation could be afforded even  by the poorest of the poor, in Mumbai the rent of even a match box like apartment would have meant more than their monthly income.  They have only one option, to live on the street, under the bridges or set up a shanty, namely, a plastic sheet over their head wherever little space could be found.  Mumbai being a marshy, unkempt island, millions of people who come in search of a job for their mere existence have to set up shanties wherever some vacant space is found.  Thousands of poor people set up such shanties.  But necessity and hunger knows no law. 
The Supreme Court in Olga Tellis v.  Municipal Corporation of Bombay,  AIR 1986 SC 180, took note of the fact that millions of people migrate to Mumbai in search of a job and unable to find a place to rest their head after a day’s toil are forced to set up shanties at places where vacant land is found – marshy, filthy and so on.  In that case the Supreme Court was pleased to hold that slum dwellers who make the city move by providing for the essential manpower are not trespassers on public land, but out of their total helplessness are forced to set up such shanties.  In the said judgment, the Supreme Court also took note of the fact that right to life does not mean mere animal existence but a right to lead a life with all its richness and fullness.  In the case of slum dwellers, protection against demolition of their shanties involved not the question of enjoying a life in its richness and fullness, but meant the very animal existence.
The State Government also took note of the aforesaid social and economic reality and took a policy decision to regularize all slums which were set up prior to 1st January, 1995.  A copy of the Notification No.LEN10/2001/ P.F.225/J-1 dated 4th April, 2002 issued by the Revenue Department of the Government of Maharashtra regularizing such shanties/slums which have come into existence as of 1st January, 1995, which is in Marathi, is produced and marked for reference as Exhibit “ A ”. The Government on 17/04/2008 issued a notification extending the cutoff date to 20/01/2000 in the case of project affected slum dwellers. A copy thereof annexed as Annexed “B”. Later the State Government took note of the fact that fixing a cut-off date as 1st January, 1995 is unrealistic and would mean thousands of slum dwellers being denied the benefit of regularization of their occupation, which is illegal in the eyes of those who are heartless, feudalistic et al.  Accordingly, it issued a Notification dated 12.8.2014 bearing No. ZPD/1001/PN 125/14.ZPS-1 extending the cut-off date from 1st January, 1995 to 1st January, 2000.  A copy of the said Notification is produced and marked for reference as Exhibit “ C  ”.
It is an undeniable fact that a section of the public opinion and the society is anti-poor and a section of the society also nourishes parochial feelings.  To the opulent and the heartless, poor people are nothing but dirt and despicable and they ought to be thrown out of the city.  In their parochial and feudalistic bias against the poor, they forget the fact that it is they, who live in filth and dirt, who constitute entirely of the unskilled and semi-skilled work force in the commercial city which Mumbai is, who work at construction sites, for construction of roads, as drivers, office assistants, lift operators, peons, et al.  It is ironical that the rich and the mighty and those who nourish and nurture parochial philosophy are so thankless to the poor, who toil and very often get injured and even died at construction sites and other hazardous industries. 
The demolition effected as aforesaid is in clear violation of the constitutional/fundamental rights of the Petitioner Nos. 1 and 2  as also in direct conflict with the order, extracted above.  Therefore, the Respondents ought to be directed to undo the injustice caused to the Petitioner Nos. 1 and 2   and the only way to do so is to provide them with alternate accommodation/ rehabilitate them forthwith, provide them shelter, food and other basic amenities, without which their very life cannot be sustained.
Section 314 of the Mumbai Municipal Corporation Act, invoking of which, the Petitioners have been rendered homeless and their shanties were demolished, is unconstitutional and void inasmuch as it empowers the Municipal Commissioner/its officers to demolish the hutment of a slum dweller or a roof of a pavement dweller without giving any notice providing any alternative accommodation.  Right to life is one of the basic features of the Constitution of India; one of the fundamental rights of great sanctity, which no authority, legislature nor the Court, could take away from a citizen.  The Petitioners who eke out their livelihood by working at construction sites, for construction of roads, as drivers, office assistants, lift operators, peons, et al, were compelled to set up their shanties in the land supposed to be belonging to the Municipal Corporation out of dire necessity.  They, therefore, are not encroachers.  Necesitas non habet legem – necessity knows or has no law.  They are on the land in question out of dire necessity; and encroachment done out of extreme necessity is no encroachment in the eye of law and is legally permissible.  It is well settled in law that the validity or otherwise of an Act of Parliament will have to be tested on ground realities.  In effect, Section 314 of the MMC Act empowering a destitute, a homeless, a slum dweller, to be deprived of his or her sheet over head without affording any hearing without providing any rehabilitation, is unconstitutional and void ab initio.  The said Section, therefore, is liable to be struck down at the hands of this Hon'ble Court as unconstitutional.  If this Hon'ble Court were to save the said Section from its unconstitutionality, which is put to challenge here, then the said Section has to be construed in consonance with Part III of the Constitution, namely, that not only the right to be heard has to be read into the said Section but the right to life, as well.
GROUNDS
Classification of the slums as those set up prior to 1st January, 1995 or 1st January, 2000 and thereafter and afford protection to the former and deny the same to the latter is wholly unconstitutional;
Food, clothing and shelter are the bare necessities of life.  Hundreds of school going children are deprived of the basic needs of life.  School going children, babies, sick and ailing women are entitled to the protection of the State.  Rex est procurator factuoram - it is the duty of the king to protect those who cannot protect themselves;

The judgment dated 13th January, 2016 in Writ Petition No. WPL 64/2016  is one rendered void ab initio.  It is a gross violation of the concept of justice, equity and fairness to arrive at a conclusion on a question of fact in a proceeding under Article 226 of the Constitution without taking evidence, without affording an opportunity to the affected to contradict the assertion of the BMC.  If a Constitution Amendment could be declared to be void, being in violation of the basic structure of the Constitution, the aforesaid judgment of this Hon'ble Court could be no exception to the doctrine of nullity.

11.  The Petitioners crave leave of this Hon’ble Court to add to, alter, amend and/or modify any of the aforesaid grounds as and when required.

12. 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.
13. The Petitioners state that there is no period of limitation for preferring this Petition and hence the same is within limitation.

14. The Petitioners have no other efficacious alternative procedure may remedy through to use the phrase ‘remedy’ is in corrected.
15.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:

receive the present Writ Petition, which is certainly one for redressal of the injustice and unthinkable horror committed on the Petitioner & their like,    exempt the Petitioner from payment of Court-fee as also compliance with the rules of procedure, lest the very cause of justice will be sacrificed in the altar of procedure which is only a handmaiden of justice and not its mistress;

declare that the dispossession of the Petitioner and their like, from their homes is against the basic tenets of law, a crime against humanity and grave violation of human rights and further to not only direct immediate restoration of their shanties, their abode, but also to compensate them for the unthinkable calamity, injustice and cruelty wreaked on them;

issue a writ of mandamus or any or any other appropriate writ or order directing the Government of Maharashtra, BMC/MMC/ MHADA to forthwith provide alternate accommodation, medical aid and other essential facilities to the Petitioner Nos. 1 & 2 and their like, lest their infants and toddlers will die being exposed to the simmering sun, being without food;
     
declare that a Full Bench or even a larger Bench of this Hon’ble Court is required to be constituted since the instant Writ Petition involve larger issues of right to life of the millions of slum dwellers who constitute to be the 60% of the population of the City of Mumbai, particularly since there exist to be a number of judgments of the various Division Benches of this Court, rendered upon PILs “a ravenous wolf in a clothing of a sheep”, without issuing notice to the public at large,  slum dwellers/ the affected parties and thus rendered void ab initio, so too in conflict with a catena of Constitutional benches of the Supreme Court, in particular, Keshavananda Bharthi, Olga Tellis etc.  and accordingly pass an appropriate order for the matter to be placed before the Hon’ble Chief Justice for constitution of a Full Bench / Larger Bench;

issue an appropriate writ or order or declaration, declaring that the notification LEN10/2001/P.F.225/J-1 dated 4th April, 2002  and ZPD/1001/PN 125/14.ZPS-1 dated 12.8.2014 (Exhibit “B” hereto) classifying slum dwellers into different categories, namely, (i) those prior to 1st January, 1995 (ii) those between 1st January, 1995 and 1st January, 2000 and (iii) those who have come after 2000 is wholly irrational, arbitrary and unconstitutional, being in violation of Article 14 of the Constitution;

issue an appropriate writ, be it in the nature of certiorari or any other appropriate writ, order or declaration, declaring that Section 314 of the Mumbai Municipal Corporation Act, 1888 is unconstitutional and void inasmuch as it empowers the Municipal Commissioner/its officers to demolish/ cause to be removed  the hutment of a slum dweller or a roof of a pavement dweller without notice, which is against the fundamental rights guaranteed to a citizen under the Constitution of India or in the ALTERNATIVE to declare that such a requirement is to be read into the said Section;

pass an order of ad-interim, mandatory and prohibitory injunction restraining and prohibiting the Respondents from in any manner interfering with the estate, rights, title,  possession and enjoyment of the shanties in question which stands demolished and in particular causing any obstruction of the estate title and right which are invested in them as slum dwellers and further to direct that the be provided food, clothing and medicines pending final disposal of the above Writ Petition;

pass such further and other orders as the nature and circumstances of the case may warrant.

Petitioner through her guardian Noori Sameer Mujavar

Advocates for the Petitioners

V E R I F I C A T I ON

I, Noori Sameer Mujavar  aged about _____years residing at Kavthekhadi Versova, Andheri (west)  Mumbai, on behalf of the Petitioner being the natural guardian/ next friend,  do hereby solemnly declare that what is stated in paragraphs 1 to 10 of the foregoing Petition is true to my own knowledge, information and belief and what is stated in remaining paragraphs is based on information which I believe to be true and correct.

Solemnly declared at Mumbai]
on this ___ day of March , 2016.]          Petitioner through her guardian Noori
Sameer Mujavar

Advocates for the Petitioners

We are not members of Advocates Welfare Fund and hence court fees of Rs.2 have not been affixed.

V A K A L A T N A M A

IN THE HIGH COURT OF JUDICATURE AT Bombay

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.      OF 2016

Unnamed Girl Child of 13 days
Through its Mother the Natural Guardian
Noori Sameer Mujavar .
Residing at Kavthekhadi,
Versova, Andheri (west)  Mumbai…Petitioner

Versus

1) State of Maharashtra,
represented by the Chief Secretary,
Mantralaya, Mumbai 400 032.

2) The Union of India, represented by its
Secretary in the Department of
Urban Development and Poverty
Eradication, Nirman Bhavan,
New Delhi.

3) Municipal Commissioner,
           Municipal Corporation of   
           Greater Bombay,
           Mahanagarpalika  
           Marg, Opp. C.S.T. Station,    
           Mumbai – 400 001.

4) The Commissioner of Police,
Greater Mumbai,
Crawford Market,
Mumbai. …Respondents

To

The Prothonotary/ Registrar O.S
High Court of Judicature at Bombay
MUMBAI 400 032

Madam,

I, Noori Sameer Mujavar the natural guardian of Petitioner abovenamed, do hereby appoint Mrs. Rohini M. Amin and Shri R.R. Nair, Advocates, to act, appear and plead for us  in the above petition.
IN WITNESS WHEREOF I have subscribed my hand hereto.
Dated this ___ day of March  2016.

Accepted:

Mrs. Rohini M. Amin,
R.R.Nair
Advocates
304, Hari Chambers, 58/64 SBS Marg,
Near Old Customs House, Fort,
Mumbai- 400 023
(98205 35428 &
9892809502)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.      OF 2016

Unnamed Girl Child of 13 days
Through its Mother the Natural Guardian
Noori Sameer Mujavar . …Petitioner
Versus

State of Maharashtra & Ors. …Respondents

AFFIDAVIT IN SUPPORT

I, Noori Sameer Mujavar,  aged about ________years residing at Kavthekhadi Versova, Andheri (west)  Mumbai on behalf of the Petitioner being the natural guardian since I am the Petitioner’s Mother, do hereby solemnly affirm and state as under:

I am the Natural Guardian  Petitioner in the above Writ Petition.   I know the facts of the case and am competent swear this affidavit. 
That, the above Writ Petition has been drafted by the Petitioner’s Counsel on my instructions.  I have read and understood the contents of the same which are true and correct to my knowledge and belief. No fact of it is false and nothing material has been concealed therefrom.
That, the Exhibits filed along with the Writ Petition are the true and correct copies of their respective originals.
I, therefore, pray that this Hon’ble Court be pleased to allow the above Writ Petition with costs.

Solemnly affirmed at Mumbai ]
on this       day of March 2016 ] Petitioner

Advocate for the Petitioner

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.      OF 2016

Unnamed Girl Child of 13 days
Through its Mother the Natural Guardian
Noori Sameer Mujavar . …Petitioner
Versus

State of Maharashtra & Ors. …Respondents

LIST OF DOCUMENT

1.Documents and Exhibits referred to and relied upon in the Petition.

2.Documents annexed to this Petition.

3.Any other documents.

                                  Advocates for the Petitioner 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.      OF 2016

Unnamed Girl Child of 13 days
Through its Mother the Natural Guardian
Noori Sameer Mujavar . …Petitioner
Versus

State of Maharashtra & Ors. …Respondents

To
The Registrar (OS) / Prothonotary& Senior Master,
High Court of Judicature at Bombay
MUMBAI 400 032.

ADVOCATE’S CERTIFICATE

I, Mrs. Rohini M. Amin, Shri R.R.Nair, Advocates for the Petitioner, do hereby state that the above matter is required to be considered by a Division Bench of this Hon’ble Court under Rule 636(1)(b) of the High Court (Original Side) Rules.

Dated this  __ day of   March   2016.

Advocates for the Petitioner 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.      OF 2016

Unnamed Girl Child of 13 days
Through its Mother the Natural Guardian
Noori Sameer Mujavar . …Petitioner
Versus

State of Maharashtra & Ors. …Respondents

MEMORANDUM OF ADDRESS

Mrs. Rohini M. Amin,
R.R.Nair
Advocates
304, Hari Chambers, 58/64 SBS Marg,
Near Old Customs House, Fort,
Mumbai- 400 023
(98205 35428 &
9892809502)

Advocates for Petitioners

   IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.      OF 2016

Unnamed Girl Child of 13 days
Through its Mother the Natural
Guardian Noori Sameer Mujavar . …Petitioner

Versus

State of Maharashtra & Ors. …Respondents

WRIT PETITION NO.      OF 2016

    Dated ____March 2016

Mrs. Rohini M. Amin,
R.R.Nair
Advocates
304, Hari Chambers,
58/64 SBS Marg,
Near Old Customs House, Fort,
Mumbai- 400 023
(98205 35428 &
9892809502)

Writ Appeal against the order of the learned Single Judge of this Hon’ble Court declining the ad-interim injunction sought for by the appellant seeking the respondents to refrain from proceeding any further with the selection and appointments of judges to the august office of Supreme Court and Various High Courts by means of the “Collegium System” pending finalization of Memorandum of Procedure (MOP) as envisaged in the judgment of the NJAC case.

Sub: Writ Appeal against the order of the learned Single Judge of this Hon’ble Court declining the ad-interim injunction sought for by the appellant seeking the respondents to refrain from proceeding any further with the selection and appointments of judges to the august office of Supreme Court and Various High Courts by means of the “Collegium System”  pending finalization of Memorandum of Procedure (MOP) as envisaged in the judgment of the NJAC case.

BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

WRIT APPEAL NO.__________ OF 2016

(Against the order dated 08/04/2016 passed by the learned Single Judge of this Hon’ble Court in Unnumbered WP 208/2016 declining interim injunction)

Jacob Samuel .… Appellant/Petitioner

Vs.

The Union of India & Ors …. Respondents/Respondents

MEMORANDUM OF writ APPEAL UNDER SECTION 5 OF THE Kerala high Court act filed by the Appellant through his lawyer sri P.BIJIMON against the order dated 08/04/2016 passed by the learned Single judge in UNNUMBERED writ petition 208/2016 declining interim injunction.

P.BIJIMON (B-732) (K/3173/1999)
Room No.210, 2nd Floor,
Prasanna Vihar Appartments,
Near High Court of Kerala,
Cochin-682 031
Ph.No.0484-2368737
Counsel for the Petitioner

BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

WRIT APPEAL NO.__________ OF 2016

(Against the order dated 08/04/2016 passed by the learned Single Judge of this Hon’ble Court in Unnumbered WP 208/2016 declining interim injunction)

Jacob Samuel … Appellant/Petitioner

Vs.

The Union of India & Ors …. Respondents/Respondents

I N D E X

Sr.No

Particulars Documents

Page No.
1.
Synopsis

A-B
2.
Memorandum of Writ Appeal

1-8
3.

Certified copy of judgement dated 08/04/2016 in Unnumbered Writ Petition No.208/2016

9
4.

True Copy of Unnumbered Writ Petition No.208/2016

10-22
5.
Annexure-A
True Copy of the Order dated 16/12/2015 by Hon’ble Supreme Court in Writ Petition © N0 13/2015

23-38
6.
Affidavit

39
7.
Petition for condoning the delay

40
8.
Petition for accepting Annexure-A

41-44

Dated this the 20th day of June 2016

P.BIJIMON
Advocate for the Appellant/Petitioner

-A-

BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

APPEAL NO.__________ OF 2016

(Against the order dated 08/04/2016 passed by the learned Single Judge of this Hon’ble Court in Unnumbered WP 208/2016 declining interim injunction)

Jacob Samuel .… Appellant/Petitioner

Vs.

The Union of India & Ors …. Respondents/Respondents

SYNOPSIS

The Appellant, a lawyer primarily practising in the District Court at Mavelikara and other Courts near and around Mavelikara, which are subordinate to the Hon'ble High Court of Kerala and occasionally in the Hon'ble High Court of Kerala, was constrained to institute Unnumbered WP 208/2016 since he bona fide believed that the current collegium system of selection and appointment of judges to the higher judiciary worked out to the great disadvantage of the lawyers practising in the Courts subordinate to the Supreme Court and High Courts. The new Memorandum of Procedure for appointment of Judges, which the Constitution Bench in the NJAC case had directed the Government of India to draft in consultation with the Hon'ble Chief Justice of India/collegium, is yet to be done/notified to the public at large.  However, apparently since appointments to the Supreme Court and High Courts were held up since the NJAC Act was notified, the collegium of the Supreme Court/High Courts had made number of recommendations for appointments of Judges.  It was in the above circumstances that the Appellant instituted the aforesaid Writ Petition and sought an emergent interim order restraining and prohibiting the Respondents from making any recommendation for appointment of Judges and the Union of India from acting on such recommendations, if any, made. 

But, by the impugned order dated 08/04/2016, the learned Single Judge was pleased to decline the ad-interim injunction sought for, as aforesaid.  The learned Single Judge in his order did not advert to any of the contentions raised by the Appellant.  The learned Single Judge refused to grant the interim injunction sought for on the ground that the Registry has raised some objections as to the maintainability of the Writ Petition..  The Writ Petition, therefore, was not assigned any final registration and since the office objections remained to be cleared, the injunction cannot be granted

The Appellant, therefore, with utmost respect begs to submit that the learned Single Judge failed to apply his judicial mind, still worse, failed to even notice what the contentions of the Appellant are, failed to take notice of the gravity thereof and happened to go at a tangent, misdirecting himself from the real issue, and to render an order declining the interim relief sought for, by offering a reason which is wholly arbitrary in the impugned order which shows total non-application of mind. Hence, the instant writ appeal.

Dated this the 17th day of June 2016

P.BIJIMON
Advocate for the Appellant/Petitioner

BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

APPEAL NO.__________ OF 2016

(Against the order dated 08/04/2016 passed by the learned Single Judge of this Hon’ble Court in Unnumbered WP 208/2016 declining interim injunction)

Jacob Samuel,S/o.Samuel, aged 47 years
Residing at Kalluvalayathil Puthen veedu,
Thazhakara,P.O,Mavelikara
Alappuzha Dist.-Kerala
Pin 69010 …Appellant/Petitioner

Versus
Union of India,
represented by its Secretary
in the Department of Justice,
New Delhi 110 001.

The Hon'ble Chief Justice of India,
represented by the Registrar General,
Supreme Court of India,
Tilak Marg, New Delhi 110 001.

The Collegium, Supreme Court of India,
Supreme Court of India,
represented by the Registrar General,
Supreme Court of India,
Tilak Marg, New Delhi 110 001.

The Hon'ble Chief Justice,
represented by the Registrar General,
High Court of Kerala,
Ernakulam 682 031.

The Collegium, High Court Of Kerala,
represented by the Registrar General,
High Court of Kerala,
Ernakulam-682 031.

The State of Kerala,
represented by its Chief Secretary,
Trivandrum  695001.           ….Respondents/Respondents

Address for service of the Appellant is that of his Counsel Sri P.BIJIMON, 210,2nd Floor,Prasanna Vihar Apartments,near High Court,Kochi-31

Address for service of Respondents is in the above shown addresses of theirs respectively unless engaged by any lawyer.

MEMORANDUM OF APPEAL UNDER SECTION 5 OF THE Kerala high Court act filed by the Appellant through his lawyer sri P.BIJIMON against the order dated 08/04/2016 passed by the learned Single judge in UNNUMBERED writ petition 208/2016 declining interim injunction.
The Appellant, a lawyer primarily practising in the District Court at Mavelikara and other Courts near and around Mavelikara, which are subordinate to the Hon'ble High Court of Kerala and occasionally in the Hon'ble High Court of Kerala, was constrained to institute Unnumbered WP 208/2016 since he bona fide believed that the current collegium system of selection and appointment of judges to the higher judiciary worked out to the great disadvantage of the lawyers practising in the Courts subordinate to the Supreme Court and High Courts.  The reasons which made it imperative for the Appellant to say so are many.  Briefly stated, they are as follows:-

Even assuming that the collegium system of selection and appointment of judges to the Supreme Court and high Courts is otherwise ideal, it falls short of being the just and fair system inasmuch as in so far as the lawyers, like the Appellant, who practice in the subordinate Courts, the Chief Justice and senior Judges of the Supreme Court/High Courts, who constitute to be the collegium, ordinarily will have no occasion to assess the competence, performance and talents of the lawyers who practice in the subordinate Courts who are equally competent and talented as lawyers practising exclusively in the higher Courts because the former seldom appear before the superior Courts, with the result that their skill, competence, suitability and desirability to be elevated as a Judge of the Supreme Court or High Court are never assessed.  The collegium system, an offspring of the judgments in Judges-2 and Judges-3 cases, meant rewriting of the Constitution, though no such jurisdiction is vested in the Supreme Court.  Time and experience, the greatest teacher, proved that the collegium system is wholly defective.  The Parliament, which is the voice of the people, the supreme legislature, therefore, enacted the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 (the Acts, for short) to remedy the deficiency which it took notice of.  However, by its judgment dated 16th October, 2015 in Judges-5 case (not Judges-4 case), namely, Supreme Court Advocates-on-Record Association and another v. Union of India & Ors. [Writ Petition (Civil) No.13 of 2015 and others] popularly known as the NJAC case, a Five-Judge Constitution Bench of the Supreme Court struck down as unconstitutional the said Acts.  The Supreme Court happened to “quash” the said Acts only because the learned Attorney General failed, if not refused, to bring to the notice of the Constitution Bench and the public domain that the said Acts being legislations in the domain of executive policy involving no violation of anybody’s fundamental rights are not even justiciable.  The judgments in Judges-2 and Judges-3 cases also happened to be rendered only because the then Attorney General/counsel representing the Union of India/State Governments failed to point out that the said writ petitions were not maintainable inasmuch as no petition under Article 32 of the Constitution would lie, no matter what terminology is employed, whether writ petition or PIL, unless there is violation of anybody’s fundamental right.

It is a fundamental principle of law that if a judgment of a Court, even of the Full Court of the Supreme Court, is one rendered without jurisdiction, it is void ab initio.  The judgments in Judges-2, Judges-3 and the NJAC cases are, therefore, rendered void ab initio.  Though the plea, as aforesaid, that the judgments in Judges-2, Judges-3 and the NJAC cases are void ab initio and they could be declared as unconstitutional by a learned Single Judge of this Hon'ble Court or by a Civil Court is wholly unthinkable, in so long as the doctrine of nullity, a concept of universal jurisprudence/ acceptance, time immemorial, is the foundation on which the concept of rule of law is built, the Appellant is well within his right to plead so.  In support of his said proposition, the Appellant begs to rely on, among others, the judgments in T.C. Basappa v. T. Nagappa, AIR 1954 SC 440, A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602,NawabkhanAbbhaskhan Kasab v. State of Gujarat, AIR1974SC1471.

Even assuming that the judgments in Judges-2, Judges-3 and the NJAC cases are rendered per incuriam, then also no appointment of Judges could have been made on the recommendation of the collegium of the Supreme Court/High Court till the collegium system is improved in terms of the directions/observations contained in the judgment of the Supreme Court in the order dated 16/12/2015 in the NJAC case and a new Memorandum of Procedure for appointment of Judges is drawn up which will ensure a just and fair method of selection and appointment of judges to the higher judiciary.  A copy of the order dated 16/12/2015 is produced as Exhibit P-1.  The new Memorandum of Procedure for appointment of Judges, which the Constitution Bench in the NJAC case had directed the Government of India to draft in consultation with the Hon'ble Chief Justice of India/collegium, is yet to be done/notified to the public at large.  However, apparently since appointments to the Supreme Court and High Courts were held up since the NJAC Act was notified, the collegium of the Supreme Court/High Courts had made number of recommendations for appointments of Judges.  It was in the above circumstances that the Appellant instituted the aforesaid Writ Petition and sought an emergent interim order restraining and prohibiting the Respondents from making any recommendation for appointment of Judges and the Union of India from acting on such recommendations, if any, made.  A copy of the Writ Petition so instituted is produced as Exhibit P-2.
By the impugned order the learned Single Judge was pleased to decline the ad-interim injunction sought for, as aforesaid.  The learned Single Judge in his order did not advert to any of the contentions raised by the Appellant.  The learned Single Judge refused to grant the interim injunction sought for on the ground that the Registry has raised some objections as to the maintainability of the Writ Petition..  The Writ Petition, therefore, was not assigned any final registration and since the office objections remained to be cleared, the injunction cannot be granted. The copy of impugned order dated 08/04/2016 passed by the learned Single Judge of this Hon’ble Court in Unnumbered WP 208/2016 declining interim injunction is produced herewith and marked as Exhibit P-3.

The Appellant begs to submit with utmost respect that the reason so offered by the learned Single Judge is an affront to reason, logic and law, if not ex facie perverse.  The learned Single Judge ought to have noticed the plea of the Appellant that the office objections, which are ministerial in nature, are capable of being cured by the Appellant and that they are objections which are in the realm of the very jurisdiction of the Court to grant the relief sought for.  The Registry had taken the plea that no declaration as sought for in the Writ Petition that the judgments of the Supreme Court are rendered per incuriam or a mandamus cannot be granted are not objections which the Registry could have raised and determined, but are pure questions of law concerning interpretation of the Constitution and the law of the land.  The Appellant, therefore, with utmost respect begs to submit that the learned Single Judge failed to apply his judicial mind, still worse, failed to even notice what the contentions of the Appellant are, failed to take notice of the gravity thereof and happened to go at a tangent, misdirecting himself from the real issue, and to render an order declining the interim relief sought for, by offering a reason which is wholly arbitrary in the impugned order which shows total non-application of mind. Hence, the instant appeal.
GROUNDS
Grounds in support of the reliefs sought for herein are fairly elaborated in the statement of facts in paragraphs Nos.1 to 5 above and the Appellant respectfully submits that the same may be read and treated as the grounds in support of the instant appeal.  Nonetheless, the Appellant begs to briefly add further that 

the impugned order passed by the learned Single Judge is a cryptic and non-speaking one and the same is vitiated by manifest non-application of mind;

the impugned order is bad in law inasmuch as the learned Single Judge has failed to take notice, even briefly, what the contentions of the Appellant are.  The Appellant’s plea while pressing for an interim injunction was that great prejudice and injustice could be caused to him and the public unless the Respondents/collegium/Union of India are restrained and prohibited from selecting/recommending candidates for appointment as Judges of the Supreme Court/High Courts without putting in place a just and fair mechanism of selection and appointment of Judges, of which the most imperative requirement is to advertise the vacancies, invite applications from all eligible candidates, bring in a just and fair mechanism for scrutinizing the applications, short list the names, call for objections from the public at large, consider those objections and thereafter make recommendations for appointments;

the Appellant maintains that the judgments in Judges-2, Judges-3 and the NJAC cases are rendered per incuriam and in spite of the said judgments the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 remain to be the laws of the land.  Even assuming that the judgments in the aforesaid cases are rendered per incuriam, which probably is the only view which this Hon'ble Court would take considering the practical realities of the day as Article 141 of the Constitution, which only embodies the principle of stare decisis, is misunderstood to be as one which mandates that the judgments of the Supreme Court are to be treated as the laws of the land, no appointment could have been made unless and until the collegium system is improved in terms of the order dated 16/12/2015  passed by the Supreme Court by redrafting the Memorandum of Procedure for appointment of Judges.  As already stated, the learned Single Judge in the impugned order did not notice any of the contentions canvassed by the Appellant in his Writ Petition.  Justice, therefore, was denied to him;

The minimum that was expected of the learned Single Judge was to refer briefly to the contentions of the Appellant and offer reasons why they were not found favour with him.  The learned Single Judge, the Appellant is afraid to say, also did not in his order notice the explanation offered by the Appellant to the technical objections raised by the Registry on account of which he was pleased to decline the interim injunction.  The impugned order, therefore, is in gross violation of the fundamental rights of the Appellant;

The Appellant submits that the error committed by the learned Single Judge is not an error within his jurisdiction which he is free to make, but an error which is of a jurisdictional nature, which has rendered his order void ab initio.  The said order is, therefore, liable to be declared as void.  This Hon'ble Court being an appellate Court is within its jurisdiction to grant or refuse the relief sought for by the Appellant but after recording the contentions of the Appellant and after offering reasons if they are to be rejected and that is what the concept of due process of law demands as the bare minimum from this Hon'ble Court as the holder of public trust.

THE Appellant, THEREFORE, PRAYS THAT -
this Hon’ble Court be graciously pleased to quash and set aside the order dated 08/04/2016 (Exhibit P-3) passed by the learned Single Judge in Writ Petition Unnumbered 208/2016 declining the interim reliefs sought for and to grant the ad interim reliefs as sought for or be pleased to direct the learned single judge to hear the petitioner afresh and pass a speaking order stating at least in brief what the contentions of the petitioner  are and the reasons for which it was found to be not maintainable ;
(b) pass such other and further reliefs in the nature and circumstances of the case may require.
P.BIJIMON
Advocate for the Appellant

V E R I F I C A T I ON

I, Jacob Samuel, S/o Samuel Varghese, aged 47 years, the Appellant herein, residing at Kalluvalayathil Puthen veedu,Thazhakara,P.O,Mavelikara -690102 do hereby verify that what is stated in paragraphs Nos.1 to 6 of the foregoing Memorandum of Appeal is true to my own knowledge and what is stated in the remaining paragraphs are stated on information and belief and I believe the same to be true.
Dated this the 17th day of June 2016.
       Deponent: Jacob Samuel
Solemnly affirmed and signed before me by the Deponent, who is personally known to me, on this the 17th day of June, 2016 in my office at Ernakulam.

P.BIJIMON
Advocate for the Appellant

BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

APPEAL NO.__________ OF 2016

(Against the order dated 08/04/2016 passed by the learned Single Judge of this Hon’ble Court in Unnumbered WP 208/2016 declining interim injunction)

Jacob Samuel … Appellant/Petitioner

Vs.

The Union of India & Ors …. Respondents/Respondents

AFFIDAVIT

I, Jacob Samuel, aged 47 years, S/O Samuel Varghese ,Kalluvalayathil Puthen veedu,Thazhakara,P.O,Mavelikara -690102 do hereby solemnly affirm and state as follows
   I am the petitioner in the above writ appeal and I am fully competent to swear the above affidavit.
The above writ appeal is filed against the order dated 08/04/2016 passed by the learned Single Judge of this Hon’ble Court in Unnumbered WP 208/2016 declining interim injunction.

I have not filed any other writ appeal seeking similar relief before this Hon’ble court and the annexures filed along with this writ appeal are true and genuine
All what is stated above are true and correct to the best of my knowledge belief and information
Dated this the 17th day of June 2016

JACOB SAMUEL         
Deponent
Solemnly affirmed and signed before me by the deponent who is personally known to me in my office at Ernakulam on this the 16th day of June 2016.

P.BIJIMON
Advocate for the Petitioner

BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

APPEAL NO.__________ OF 2016

(Against the order dated 08/04/2016 passed by the learned Single Judge of this Hon’ble Court in Unnumbered WP 208/2016 declining interim injunction)

Jacob Samuel … Appellant/Petitioner

Vs.

The Union of India & Ors …. Respondents/Respondents

AFFIDAVIT

I, Jacob Samuel, aged 47 years,S/O Samuel Varghese ,Kalluvalayathil Puthen veedu,Thazhakara,P.O,Mavelikara -690102 do hereby solemnly affirm and state as follows
I am the petitioner in the above writ appeal and I am fully competent to swear the instant affidavit.
The above writ appeal is filed against the order dated 08/04/2016 passed by the learned Single Judge of this Hon’ble Court in Unnumbered WP 208/2016 declining the interim injunction sought for without assigning any valid reason
There happened to be a delay of 33 days in preferring this appeal against the said order which is neither intentional nor deliberate. I lost my mother on 05/05/2016 after prolonged illness.
The above said delay happened in preferring the appeal is liable to be condoned in the interest of justice for it is wholly bonafide lest appellant should be put to irreparable loss, legal injury and hardships.
All what is stated above are true and correct to the best of my knowledge belief and information
Dated this the 17th day of June 2016
Jacob Samuel         
Deponent
Solemnly affirmed and signed before me by the deponent who is personally known to me in my office at Ernakulam on this the 17th day of June 2016.
P.BIJIMON
Advocate for the Petitioner

BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

(Against the order dated 08/04/2016 passed by the learned Single Judge of this Hon’ble Court in Unnumbered WP 208/2016 declining interim injunction)

I.A NO. __________OF 2016

IN
WRIT APPEAL NO.__________ OF 2016

Jacob Samuel,S/o.Samuel, aged 47 years
Residing at Kalluvalayathil Puthen veedu,
Thazhakara,P.O,Mavelikara
Alappuzha Dist.-Kerala
Pin 69010 …Appellant/Petitioner

Versus

Union of India,
represented by its Secretary
in the Department of Justice,
New Delhi 110 001.

The Hon'ble Chief Justice of India,
represented by the Registrar General,
Supreme Court of India,
Tilak Marg, New Delhi 110 001.

The Collegium, Supreme Court of India,
Supreme Court of India,
represented by the Registrar General,
Supreme Court of India,
Tilak Marg, New Delhi 110 001.

The Hon'ble Chief Justice,
represented by the Registrar General,
High Court of Kerala,
Ernakulam 682 031.

The Collegium, High Court Of Kerala,
represented by the Registrar General,
High Court of Kerala,
Ernakulam-682 031.

The State of Kerala,
represented by its Chief Secretary,
Trivandrum  695001.          ….Respondents/Respondents

PETITION FILED UNDER SECTION 5 OF THE LIMITATION ACT
For the reasons stated in the accompanying affidavit it is humbly prayed that this Hon’ble Court may be pleased to condone the delay of      days in filing the appeal.
Dated this the 17th day of June 2016
P.BIJIMON
      Advocate for the Appellant/Petitione

BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

WRIT APPEAL NO.__________ OF 2016

(Against the order dated 08/04/2016 passed by the learned Single Judge of this Hon’ble Court in Unnumbered WP 208/2016 declining interim injunction)

Jacob Samuel … Appellant/Petitioner

Vs.

The Union of India & Ors …. Respondents/Respondents

AFFIDAVIT

I, Jacob Samuel, aged 47 years,S/O Samuel Varghese ,Kalluvalayathil Puthen veedu,Thazhakara,P.O,Mavelikara -690102 do hereby solemnly affirm and state as follows
I am the petitioner in the above writ appeal and I am fully competent to swear the instant affidavit.

The  above unnumbered writ petition is instituted before this Hon’ble court seeking a mandamus against respondents to notify the vacancies of the august offices of the judges of Hon’ble Supreme court and High Courts  and to invite application from all eligible candidates.so too reference from all stake holders. There was a reference about the judgment of the Five Judges Constitutional Bench dated 16/10/2015 in SCAORA Vs Union of India and other connected cases popularly known as the NJAC Case.

Since the judgment runs into more than 1000 pages, nay half a million words, I give an undertaking to produce the reported copy of the said judgment in the court at the time of hearing. In the instant writ appeal also there is a reference of the above said NJAC case. To produce a copy of the said judgment running into 1064 pages along with the instant appeal memorandum is too voluminous and unhandy. The cost involved in taking photocopy is also prohibitive.

The said judgment is a reported one. A judgment which is reported is not required to be produced along with a plaint/petition/appeal, need only to be produced at the Bar.

Therefore there is no need to file any petition at all seeking an exemption from production of the said judgment. None the less as a matter of abundance of caution, I am filing the accompanying application for exemption from the production of the copy of the main judgment in the NJAC case and in the interest of justice required that an exemption is needed is granted.

The said judgment could not be produced at the time of filing of the above writ petition. But the production of the above judgment is imperative in this writ appeal for a fair disposal of the matter.

A separate petition is filed herewith for the said purposes.
All what is stated above are true and correct to the best of my knowledge belief and information
Dated this the 20th day of June 2016
Jacob Samuel         
Deponent
Solemnly affirmed and signed before me by the deponent who is personally known to me in my office at Ernakulam on this the 20th day of June 2016.
P.BIJIMON
Advocate for the Petitioner

BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

(Against the order dated 08/04/2016 passed by the learned Single Judge of this Hon’ble Court in Unnumbered WP 208/2016 declining interim injunction)

I.A NO. __________OF 2016

IN
WRIT APPEAL NO.__________ OF 2016

Jacob Samuel,S/o.Samuel, aged 47 years
Residing at Kalluvalayathil Puthen veedu,
Thazhakara,P.O,Mavelikara
Alappuzha Dist.-Kerala
Pin 69010 …Appellant/Petitioner

Versus

Union of India,
represented by its Secretary
in the Department of Justice,
New Delhi 110 001.

The Hon'ble Chief Justice of India,
represented by the Registrar General,
Supreme Court of India,
Tilak Marg, New Delhi 110 001.

The Collegium, Supreme Court of India,
Supreme Court of India,
represented by the Registrar General,
Supreme Court of India,
Tilak Marg, New Delhi 110 001.

The Hon'ble Chief Justice,
represented by the Registrar General,
High Court of Kerala,
Ernakulam 682 031.

The Collegium, High Court Of Kerala,
represented by the Registrar General,
High Court of Kerala,
Ernakulam-682 031.

The State of Kerala,
represented by its Chief Secretary,
Trivandrum  695001.          ….Respondents/Respondents

PETITION FILED UNDER RULE 154 OF THE KERALA HIGH COURT RULES AND PRACTICE 2013

For the reasons stated in the accompanying affidavit it is humbly prayed that this Hon’ble Court may be pleased to exempt the appellant from producing the entire copy of the reported judgment of the Hon’ble Supreme Court in SCAORA Vs Union of India in the popular NJAC case and allow the petitioner to produce the reported copy of the same at the Bar, if needed at the time of hearing and allow to accept the same as Annexure A along with this writ appeal.

Dated this the 20th day of June 2016

P.BIJIMON
      Advocate for the Appellant/Petitioner

THE SEMINAR ON THE VIDEO RECORDING OF COURT PROCEEDINGS BY NLC

Sir,

At a time when, world over the court proceedings are video recorded and even telecasted, where the telecast is evidently in public interest the High Court of Judicature at Bombay has been pleased to turn down the plea at the hands of Mr. Sunil Gupta,  an NLC activist and an IITian, seeking a declaration that the constitutional guarantee of Freedom of Speech take within it's ambit, a right in the citizen to have the proceedings of the Supreme Court and High Courts, and that of all Courts and Tribunals be video recorded, for all judicial proceedings are open to the public at large and from time immemorial, superior courts are known as ‘Courts of Record’.  The NLC, which is formed solely to campaign for greater transparency and accountability in judiciary considered the said judgment contrary to the overwhelming public opinion so too with at most respect to the Hon'ble judges, one without foundation in law. The NLC is conducting a deliberation on the said issue of monumental importance on Saturday, the 25th day of June, 2016 at the Press Club, Near CST (VT) Station, Mumbai, at 02:30 PM.  The veteran transparency activist and former information commission Shri. Sailesh Gandhi will deliver the keynote address. The anti corruption watchman, Hon'ble Mr.J.Tahiliani, the Lokayukta for Maharashtra will be the Chief Guest.

You are invited with friends and likeminded persons, to the meeting and also to partake in the deliberations. You will have a limited opportunity to speak on the occasion. 

With kind regards,

Yours sincerely,

Mumbai,
23.06.2016

Sd/-

Mathews J.Nedumpara,

President,NLC

PIL OR PBL, WHICH IS CONSTITUTIONAL?

PIL or PBL, which is constitutional?an article by Adv.Mathews J.Nedumpara

                   “What is in a name”, asked Shakespeare in Romeo and Juliet.  Five hundred years since the said question was posed, the Supreme Court of India happened to rewrite Articles 124 and 217 of the Constitution by its judgments in Judges-2 and Judges-3 cases , namely,  Supreme Court Advocates-on-Record v. Union of India, (1993) 4 SCC 441 and  In re Special Reference 1 of 1998, AIR 1999 SC 1.  Later in its judgment of 16^th October, 2015 in Judges-5 case (not Judges-4 case), namely, Supreme Court Advocates-on-Record Association and another v. Union of India & Ors. [Writ Petition (Civil) No.13 of 2015 and others decided on 16^th October, 2015] the Supreme Court struck down as unconstitutional the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 (the Acts, for short), which Acts had the unanimous support of both the Houses of the Parliament and ratified by 2/3^rd of the States, except for veteran Ram Jethmalani, only because instead of the words “Pro Bono Litigation” (PBL), the words “Public Interest Litigation” (PIL) were chosen to be used.  Had the Supreme Court of India, the legal fraternity and the press chosen to describe the benevolent procedure of allowing a person aggrieved, where the constitutional Courts are beyond his reach due to his poverty, illiteracy and other disabilities, as PBL instead of PIL, what is done in the name of PIL, which legendary Justice Krishna Iyer described as a “ravenous wolf in sheep's clothing”, would not have happened.  To state in the simplest of words, legendary Justices like P.N. Bhagwati, Y.V. Chandrachud, Krishna Iyer et al, by relaxing the concept of locus standi by their judgments in Peoples Union for Democratic Rights v. Union of India (A.I.R. 1982  SC 1473),  Shriram Food & Fertilizer Industries v. Union of India, AIR (1986) 2 SCC 176, M.C. Mehta v. Union of India, (1988) 1 SCC 471, Parmanand Katara v. Union of India, AIR 1989 SC 2039, Council For Environment Legal Action v. Union Of India, (1996) 5 SCC 281, etc., made it amply clear that where a person’s fundamental or legal rights are infringed, nay, a person aggrieved is unable to approach the constitutional Courts for enforcement of his rights out of his illiteracy, poverty and other disabilities, any person acting pro bono publico can represent his cause before such Courts.  The Supreme Court did not discover a new jurisprudence or any new remedy; it only relaxed the procedure for institution of a suit or proceeding by converting even a letter sent in a post card as a Writ Petition.  The PBLs, which the Court thus promoted by its activist approach, are still litigations for enforcement of the fundamental or legal rights of a private individual or a group of individuals.  It did not envisage a scenario where any self-appointed champion of a public cause could act as if he is the Attorney General/Advocate General who alone can represent a public interest.  Had the words “public interest” were not used and the words “pro bono” were used, Courts would not have been deciding whether or not the executive Government should appoint Judges of the higher judiciary, which is what our Constitution mandates, or the collegium; whether or not the Parliament was wise in enacting the aforesaid Acts; whether or not the Union Law Minister should be a member of the NJAC; whether or not buses and, of late, taxies in Delhi should run on diesel or CNG; whether or not mining of iron ore be permitted; whether or not to investigate the black money stashed outside the country and, if so it should be done by the CBI or the Special Investigation Team (SIT) constituted by the Supreme Court; whether the Augusta Chopper Scam should be investigated by the CBI or the SIT, to name a few.  Justice Krishna Iyer even lamented that India today is ruled by Judges, though he did not go to the extent of what some people had lamented that we are no longer a democracy but a “judgeocracy”.

                   The use of the words “public interest” instead of “pro bono” has meant the superior Courts delving into many matters which are in the exclusive domain of the executive and legislature as if the judiciary is the executive and legislature and acting in substitution thereof, both at once.  While many of the orders passed by the higher Courts by wittingly or unwittingly entering into the domain of the executive and legislature, like banning of diesel buses in Delhi, have served enormous public good, which has also led to the popularity of the PIL as a lego-political tool in the hands of citizens at large, if one were to take stock of the overall benefit which the misconception of the words “public interest” and the words “pro bono” has resulted in, one could say safely that it has done more harm than good.  To cite an example, when the concept of relaxation of locus standi was conceived by legendary Justices like P.N. Bhagwati, Y.V. Chandrachud, Krishna Iyer et al, they had in mind the amelioration of the plight of the undertrials, slum dwellers, bonded labourers and the like.  But today PIL is used against the poor for whose benefit it was conceived.  For instance, more than 70% of the population in Mumbai lives in slums, of which 50% are unauthorized.  The Government of Maharashtra conceived a scheme for providing home for all slum dwellers by recognizing their occupation of illegal slums, so too their rehabilitation, by allowing the slums to be redeveloped through MHADA/Builders.  However, the High Court of Bombay by entertaining PILs quashed the extension of the cut-off date for regularization of slums from 1^st January, 1995 to 1^st January, 2000.  The Court did even the unthinkable, namely, secured an affidavit at the hands of the State Government that the cut-off date will not be extended beyond 1^st January, 2000.  Later the Slum Act was amended extending the cut-off date to 1^st January, 2000 after securing an opinion from the Attorney General that the Government is competent to enact a law notwithstanding the undertaking given to the High Court not to extend the cut-off date.  The BJP Government, which came into power on a popular mandate on a manifesto that the Government will regularize all slums till date and its endeavour is to provide homes for all, took a decision to regularize slums/structures in the State of Maharashtra set up upto 31^st December, 2015.  The unkindest cut of all is that the High Court of Bombay a few days back refused to grant permission to the Government to implement the said cabinet decision.  What makes one shudder to think is that why at all a Government, which came to power on a popular mandate, sought permission of the Court to implement its decision.

                   The concept of PIL, which is no longer what it was conceived to be but came to be a “ravenous wolf in sheep's clothing”, has made the public at large, nay, even Judges and legal luminaries, to think that it is legitimate for the Court to delve into matters which are in the exclusive province of the executive and legislature.  And that is the reason why the Government of Maharashtra was ill-advised to seek the permission of the Court to implement its decision to regularize all slums/illegal structures set up prior to 31^st December, 2015.  The Court’s refusal to grant the permission has inconceivable ramifications on the common man.  Seventy two per cent of the buildings in Mumbai and Thane are illegal.  The Courts acting on PILs earlier had ordered demolition of all illegal structures.  Thousands and thousands of shanties and structures were demolished, but it received little public attention.  The only one which received public attention is of Campa Cola because it concerned the rich, if not the super rich.

                                                   *******       

-Adv.Mathews J.Nedumpara,

President, National Lawyers’ Campaign For Judicial Transparency And Reforms.