# TIRUPATI BALAJI DEVELOPERS PVT.LTD v. STATE

- **Citation:** [2004] Supp. 1 S.C.R. 494
- **Court:** Supreme Court of India
- **Decided:** 2004-04-21
- **Bench:** R.C. Lahoti, Ashok Bhan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/tirupati-balaji-developers-pvt-ltd-v-state-19950
- **Pages:** 30

## Headnote

Constitution of India, 1950:
Articles 124 and 129-Establishment. of Supreme Court-Court of
C Record-Supreme Court and High Courts-Relati01:iship between-Held:
Supreme Court ~nd High. Courts are both courts of record and are
constitutionally independent of each other-High Court is not a court
'subordinate' to the Supreme Court-In the context of appellate jurisdiction,
High Court exercises an inferior or subordinate jurisdiction-Articles 139D A, 141 and .J44 give an edge, and assign a superior place in the constitutional
hierarchy, to the Supreme Court over. the High Courts-However, in the
context of Articles 226 and 227 High Courts exercise a larger jurisdictionBeing constitutional institutions, Supreme Court and High Courts should
deal with each other observing grace and courtesy-Judges not to criticise
each other-Any departure therefrom should be corrected by the appellate
E forum with courtesy and respect and not by way of harsh criticism- While
issuing directions in exercise of its appellate jurisdiction, Supreme Court
cautiously abstains from issuing any "directions" as such and rather uses
alternate and polite expressions.
Article 136-Nature and scope of-Held: Jurisdiction under Art. 136
F is very wide and plenary-However, as a rule of prudence and self-imposed
discipline, Supreme Court refuses to exercise its jurisdiction in the first
instance if the grievance raised is capable of being taken care of by any
lower forum competent to do so-It is an extraordinary jurisdiction vested
in the Supreme Court by the Constitution with implicit trust and faith-lt is
G a discretionary jurisdiction and should be exercised with extraordinary care ·
and caution.
Article 136-Adverse observations-Against Supreme Court by High
Court-Expunction of-Held: Jn order to maintain its dignity as the Apex
Court, such adverse observations expunged from the record of the High
H Court.
494
TIRUPATI BALAJI DEVELOPERS PVT.LTD. v. STATE
495
Article 144-Nature and scope of-On the direction of the Supreme A
Court, Registrar General of Supreme Co.urt addressed a communication to
the Registrar General of the High Court seeking certain information-High
Court dealt with such communication on the judicial side-Correctness ofHeld: Such communication should have been dealt with on the administrative
side-High Court should have appraised the Supreme Court with the correct B
factual position-Such communication not derogatory to the High CourtHigh Court not reduced to the_ status of a litigant merely on account of such
communication nor the High Court came to be arrayed as a party nor was
the High Court as an institution and as a court of record called upon to give
an explanation or to respond
Article SO-Separation of judiciary from executive-Independence of
judiciary-Held: The appellate hierarchy, examined in the correct perspective,
is a factor strongly contributing towards the independent of the judiciary by
securing finality in adjudication within the system and its insulation from
any outside interference or correction.
Interpretation of the Constitution-Guiding factors--Held:
Interpretation of the Constitution cannot fluctuate with the different values
in which different judges believe-Concept of the common good, therefore,
should be the guide.
Code of Civil Procedure, 1908:
Sections 96 and JOO-Appeal-Nature and scope of-Held: Appeal
implies the removal of a cause of action from any inferior court or tribunal
c
D
E
to a superior one entirely subjecting the facts as well as the law to a review
and a retrial-Postulates of appellate jurisdiction are (i) existence of the
relation of superior and inferior courts-(ii) power in the former to review F
decisions of the latter-Conferral of a principal substantive jurisdiction
carries with it, as a necessary concomitant, power to exercise such other
incidental and ancillary powers without which coriferral of principal power
would be rendered redundant-Also, appeal does _not cease to be an appeal,
though irregular or in

## Text

_Characters 0–39,767 of 78,967. This is a partial read: ask again with offset=39767 for what follows._

A
TIRUPATI BALAJI DEVELOPERS PVT. LTD. AND ORS.
,V.
ST A TE OF BIHAR AND ORS.
APRIL 21, 2004
B
[R.C. LAHOTI AND ASHOK BHAN, JJ.]
Constitution of India, 1950:
Articles 124 and 129-Establishment. of Supreme Court-Court of
C Record-Supreme Court and High Courts-Relati01:iship between-Held:
Supreme Court ~nd High. Courts are both courts of record and are
constitutionally independent of each other-High Court is not a court
'subordinate' to the Supreme Court-In the context of appellate jurisdiction,
High Court exercises an inferior or subordinate jurisdiction-Articles 139D A, 141 and .J44 give an edge, and assign a superior place in the constitutional
hierarchy, to the Supreme Court over. the High Courts-However, in the
context of Articles 226 and 227 High Courts exercise a larger jurisdictionBeing constitutional institutions, Supreme Court and High Courts should
deal with each other observing grace and courtesy-Judges not to criticise
each other-Any departure therefrom should be corrected by the appellate
E forum with courtesy and respect and not by way of harsh criticism- While
issuing directions in exercise of its appellate jurisdiction, Supreme Court
cautiously abstains from issuing any "directions" as such and rather uses
alternate and polite expressions.
Article 136-Nature and scope of-Held: Jurisdiction under Art. 136
F is very wide and plenary-However, as a rule of prudence and self-imposed
discipline, Supreme Court refuses to exercise its jurisdiction in the first
instance if the grievance raised is capable of being taken care of by any
lower forum competent to do so-It is an extraordinary jurisdiction vested
in the Supreme Court by the Constitution with implicit trust and faith-lt is
G a discretionary jurisdiction and should be exercised with extraordinary care ·
and caution.
Article 136-Adverse observations-Against Supreme Court by High
Court-Expunction of-Held: Jn order to maintain its dignity as the Apex
Court, such adverse observations expunged from the record of the High
H Court.
494
TIRUPATI BALAJI DEVELOPERS PVT.LTD. v. STATE
495
Article 144-Nature and scope of-On the direction of the Supreme A
Court, Registrar General of Supreme Co.urt addressed a communication to
the Registrar General of the High Court seeking certain information-High
Court dealt with such communication on the judicial side-Correctness ofHeld: Such communication should have been dealt with on the administrative
side-High Court should have appraised the Supreme Court with the correct B
factual position-Such communication not derogatory to the High CourtHigh Court not reduced to the_ status of a litigant merely on account of such
communication nor the High Court came to be arrayed as a party nor was
the High Court as an institution and as a court of record called upon to give
an explanation or to respond
Article SO-Separation of judiciary from executive-Independence of
judiciary-Held: The appellate hierarchy, examined in the correct perspective,
is a factor strongly contributing towards the independent of the judiciary by
securing finality in adjudication within the system and its insulation from
any outside interference or correction.
Interpretation of the Constitution-Guiding factors--Held:
Interpretation of the Constitution cannot fluctuate with the different values
in which different judges believe-Concept of the common good, therefore,
should be the guide.
Code of Civil Procedure, 1908:
Sections 96 and JOO-Appeal-Nature and scope of-Held: Appeal
implies the removal of a cause of action from any inferior court or tribunal
c
D
E
to a superior one entirely subjecting the facts as well as the law to a review
and a retrial-Postulates of appellate jurisdiction are (i) existence of the
relation of superior and inferior courts-(ii) power in the former to review F
decisions of the latter-Conferral of a principal substantive jurisdiction
carries with it, as a necessary concomitant, power to exercise such other
incidental and ancillary powers without which coriferral of principal power
would be rendered redundant-Also, appeal does _not cease to be an appeal,
though irregular or incompetent-Existence of appellate jurisdiction obliges G
lower jurisdiction to render all its assistance to enable the exercise of
appellate jurisdiction fully and effectively.
•
Words & Phrases:
"Appeal"-Meaning of
H
496
SUPREME COURT REPORTS [2004) SUPP. I S.C.R.
A
A Division Bench of the High Court was seized of a hearing in public
interest exercising its jurisdiction under Article 226 of the Constitution. The
High Court had been issuing orders in the nature of continuing mandamus
and had also been monitoring the compliance.
The High Court passed an interim order on 1-10-2001. There were a
B few builders/developers engaged in construction activity and the interim order
dated 1-10-2001 had the effect of bringing their construction activity to a
standstill substantially. On 17-9-2002, seven of them filed a petition in this
Court seeking special leave to appeal against the High Court's order dated
1-10-2001. In the cause title they had described themselves as interveners/
C petitioners. They were not parties to, nor were noticed in, those proceedings
in which the order dated 1-10-2001 came to be passed, at least they said so in
their application seeking permission to file SLP.
This Court, on 28-10-2002, dismissed the SLP and directed them to
approach the High Court putting forth their case and grievance, if any, and
D pray for vacating or modifying the interim order dated 1-10-2001 passed by
the High Court. This Court further held that the petitioners could approach
the Chief Justice of the High Court for expediting the hearing of the said
matter.
On 5-4-2003 interim applications were filed by the petitioners in this
E Court submitting that their applications praying for vacating of the interim
order dated 1-10-2001 were already filed on 16/17-7-2002 but no date had
been fixed for hearing the stay-vacate application. It was also mentioned in
the application that mentioning slips were submitted which were taken on
record to be put up when the Bench was available. It was further stated that
F after the order of this Court dated 28-10-2002 such mentioning slips were
filed before the Chief Justice of the High Court on three different days praying
for early listing of the matter but no orders were passed. The averments made
in the application were supported by affidavit and also documents which.
consisted mostly of copies of records of proceedings in the High Court.
G
This Court directed issue of notice on the applications. On 3-11-2003,
H
a three-Judge Bench presided over by the Chief Justice of India, after hearing
the counsel for the parties appearing, and to ascertain if the averments made
by the petitioners were correct, called for a response from the High Court.
The order of this Court was communicated by the Registry of this Court to
the Registrar General of the High Court.
TIRUPATI BALAJI DEVELOPERS PVT. LTD. v. STATE
497
The Registrar General of the High Court prepared a note and put up A
the same before the Chief Justice of the High Court for consideration. The
note seemed to have been taken up for consideration not on the administrative
side but on the judicial side. The High Court had taken a strong exception to
the order dated 3-11-2003 of this Court forming an impression as if this Court
had 'directed' the High Court- as an institution - 'to give an explanation'.
The observations made by the High Court in the impugned order dated
3-12-2003 gave rise to the following questions:-
B
(a) Could not this Court, exercising appellate jurisdiction under
Article 136 of the Constitution, have directed a communication being
addressed to the High Court calling for information with the object C
of (i) ascertaining the facts, (ii) securing compliance with the direction
contained in the order dated 28-10-2002?
(b) Whether the Division Bench of the High Coo rt was justified - in
law and on considerations of propriety - to make all those D
observations?
(c) Is it proper for the High Court to issue a direction to the Registrar
General of this Court to place its communication for consideration
before a particular Bench?
Disposing of the petitions, the Court
HELD: 1. Under the constitutional scheme as framed for the judiciary,
the Supreme Court and the High Courts both are courts of record. The High
Court is not a court 'subordinate' to the Supreme Court. In a way the canvass
E
of judicial powers vesting in the High Court is wider inasmuch as it has
jurisdiction to issue all prerogative writs conferred by article 226 of the F
Constitution for the enforcement of any of the rights conferred by Part III of
the Constitution and for any other purpose while the original jurisdiction of
the Supreme Court is to is~ue prerogative writs remains confined to the
enforcement of fundamental rights and to deal with some such matters, such
as Presidential election or inter-state disputes which the Constitution does G
not envisage being heard and determined by the High Courts. The High Court
exercises power of superintendence under Article 227 of the Constitution
over all subordinate courts and tribunals; the Supreme Court has not been
conferred with any power of superintendence. If the Supreme Court and the
High Courts both were to be thought of as brothers in the administration of Hi
498
SUPREME COURT REPORTS (2004] SUPP. I S.C.R.
A justice, the High Court has larger jurisdiction but the Supreme Court still
remains the elder brother. There are a few provisions, which give an edge,
and assign a superior place in the hierarchy, to the Supreme Court over the
High Courts. So far as the appellate jurisdiction is concerned, in all civil and
criminal matters, the Supreme Court is the highest and the ultimate"cburt of
appeal. It is the final interpreter ofthe law. Under Article 139-A, the S~preme
B Court may transfer any case pending before one High Court to another High
Court or may withdraw the case to itself. Under Article 141 the law decided
by the Supreme Court shall be binding on all courts, including the High Court,
within the territory of India. Under Article 144 all authorities, civil and
judicial, in the territory oflndia-and that would include the High Courts as
C
wel~hall act in aid of the Supreme Court. (510-A-El
Bharat Builder Pvt. Ltd v. Parijat Flat Owners Coop. Housing Society
Ltd, (1999) 5 SCC 622, Bharat Earth Movers v. CIT, (2000) 6 SCC 645,
Assistant Collector of Central Excise v. Dunlop India Ltd, (1985] 1 SCC 260,
Siliguri Municipality v. Amalendu Das, (1984) 2 SCC 436 and State of Punjab
D v. Jagdev Singh Talwandi, (1984) 1 sec 596, relied on.
Cassell & Co. Ltd v. Broome, (197211 ALL ER 801, referred to.
2.1. In a unified hierarchical judicial system, which India has accepted
under its Constitution, vertically the Supreme Court, is placed over the High
E Courts. The very fact that the Constitution confers an appellate power on the
Supreme Court over the High Courts, certain consequences naturally flow
and follow. Appeal implies in its natural and ordinary meaning the removal of
a cause from any inferior court or tribunal to a superior one for the purpose
of testing the soundness of the decision and proceedings of the inferior court
F or tribunal. The superior forum shall have jurisdiction to r:everse, confirin,
annul or modify the decree or order of the forum appealed against and in the
event of a remand, the lower forum shall have to rehear the matter and comply
with such directions as may accompany the order of remand. The appellate
jurisdiction inherently carries with it a power to issue corrective directions
binding on the forum below and failure on the part of the latter to carry out
G such directions or show disrespect to or to question the propriety of such
directions would - it is obvious - be destructive of the hierarchical system in
administration of justice. The seekers of justice and the society would lose
faith in both. (510-E-H; 511-AI
Shankar Ramachandra Abhyankar v. Krishnaji Dattatreya Bapat, AIR
H (1970) SC 1, relied on.
TIRUPA TI BALAJI DEVELOPERS PVT.LTD. v. STA TE
499
2.2. Conferral of a principal substantive jurisdiction carries with it, as A
a necessary concomitant of that power, the power to exercise such other
incidental and ancillary powers without which the conferral of the principal
power shall be rendered redundant The appeal does not cease to be an appeal
though irregular or incompetent. (511-C-El
Nagendra Nath Dey v. Suresh Chandra Dey, AIR (1932) PC 165, B
referred to.
2.3. In spite of the Supreme Court and the High Courts being both
constitutionally independent of each other and both being the Courts of record,
to the extent of exercise of appellate jurisdiction, certainly the Supreme Court C
exercises a superior jurisdiction and hence is a superior Court than the High
Courts which exercise in that context an inferior or slabordinate jurisdiction.
'
[512-A-B)
Shankar Ramachandra Abhyankar v. Krishnaji Dattatreya Bapat, AIR
(1970) SC 1 and Nagendra Nath Dey v. Suresh Chandra Dey, AIR (1932) PC D
165, relied on.
Chappan v. Moidin Kutti, (1899) 22 ILR 22 Mad. 66, approved.
Wharton's Law lexicon, Story: Commentaries on the Constitution of the
United States, Section 1761 and Shimon Shetreet: Judges on Trial, pp. 201E
202, referred to.
3. The role of the Court of Appeal in checking judicial conduct and in
securing high standards of judicial behavior in courts is manifold. The Court
of Appeal censures and criticizes judicial misconduct in particular cases and
corrects injustices resulting from such misconduct Whether it reverses the F
judgment, quashes the conviction, reduces the sentence, or changes the
judgment in any manner, the disapproval and condemnation of the misconduct
restores the public confidence in the courts, which might otherwise have been
impaired. The party offended or prejudiced, and the public at large, might be
tempted to attribute misconduct of a particular judge to the judiciary as a
whole. The disapproval and criticism of the appellate court, even without G
amending the judgment, eliminates such danger and restores the scales of
justice to their proper balance. (512-E-G)
4. In Chapter IV of the Constitution of India, bearing the heading - the
Union Judiciary - Articles 132 to 136 deal with the appellate jurisdiction of H
500
SUPREME COURT REPORTS [2004] SUPP. 1 S.C.R.
A the Supreme Court. Of all these Articles, it is Article 136, which is worded,
in the widest possible terms. A plenary jurisdiction exercisable on assuming
appellate jurisdiction subject to grant of special leave against any kind of
judgment or order made by any Court or Tribunal and in a cause or matter
has been embodied and vested in the Supreme Court. It is an extraordinary
B jurisdiction vested by the Constitution in the Court with implicit trust and
faith and extraordinary care and caution bas to be observed in the exercise of
this jurisdiction. Article 136 does not confer a right of appeal on a party but
vests a vast discretion in the Supreme Court meant to be exercised by the
considerations of justice, call of duty and eradicating injustice.
c
D
[512-G-H; 513-A-B)
Dhakeswari Cotton Mills v. CIT, AIR (1955) SC 65, relied on.
Moti/al C. Setalvad: Centenary· Lecture Series on Centenary Celebration
of the Advocates. Association of Western India, Centenary Souvenir, p. 134,
referred to.
5. The founding Fathers of the Constitution devised a justice delivery
system in the country as one homogenous in .content, taking care of.
independence and hierarchy both, and holding the scales of balance even while
doing so. The Union judiciary and the State .judiciary are undoubtedly
independent of each other except for a few areas relating to jurisdiction as
E indicated above. However, at the same time, emphasis must be laid on the
appellate hierarchy which, examined in the correct perspective, is a factor
strongly contributing towards the independence of the judiciary and securing
finality in adjudication within the system and its insulation from any outside
interference or correction. The delicate balance has been carefully crafted
F and sought to be achieved by independence and interconnection - both existing
simultaneously - of the Supreme Court and the High Courts. These are
'relatiOnships of tension as well as those of cooperation'. [513-F-H; 514-A)
G
H
Frank M Coffin: On Appea/:___courts, lawyering, and Judging, pp. 5253, referred to.
6.1. The framers of the Constituti9n did not think it necessary to
specifically confer power on the Supreme Court to give a command to the
High Court for they were men ofvision and foresight They knew that all the
constitutional functionaries and institutions would act in the best interest of
norms and traditions consistent with democracy and constitutionalism, set
TIRUPA TI BALAJI DEVELOPERS PVT. LTD. v. ST A TE
501
down in and discernible from the Constitution and as handed down by history A
and generations of judges. Everyone would, it was expected, keep within its
bounds and would not overstep its limits so that ideals and the values remain
a living reality and do not become either an intrusion or an illusion. The
constitutional and democratic institutions, complementing and supplementing
each other, would lend strength to these handed down traditions and would
also contribute to developing such rich traditions as would be respected and B
hailed by posterity. This would result in strengthening the working of the
Constitution. [514-E-G)
6.2. In the realms of constitutionalism the values of mutual trust and
respect between the functionaries, nurtured by tradition, alleviate the need to C
codify the rules of the relationship. Experience shows that any rigid
codification of such delicate relationship is advantageous to those bent upon
vilification. A rigid written law makes it difficult to maintain that dignity which
is better and rightly left to be perceived by right-minded people who zealously
uphold the dignity of others as they do their own. [514-G-H; 515-A)
D
7. An institution dealing with another institution under the Constitution
shall have to observe grace and courtesy. No judge shall criticise another
judge and certainly not strongly. Any departure therefrom needs to be
corrected at the earliest and in the larger interest. It is obligatory on an
appellate forum to correct such deviation from rule brought to its notice as
having been committed by a jurisdiction subject to appeal and if it does not do E
so it fails in its duty. Undoubtedly, the corrective step too is taken carefully
with courtesy and respect and not by way of harsh criticism. [513-8-C)
David Pannick: Judges, pp. (127-128), referred to.
8. The Supreme Court, exercising its appellate jurisdiction, is called F
upon to issue directions, which are not only its privilege as appellate forum
but also often a necessity for meeting the demands of justice and effective
exercise of appellate power. Yet, it cautiously abstains from issuing any
'directions' as such and rather uses the alternative and polite expressions
like-"we request the High Court", "the High Court is expected to", "we trust G
and hope that the High Court will/shall", spelled out by courtesy and the
respect and regards which the Supreme Court has - and must have - for High
Courts. The practice has developed and gained ground as tradition. Barring
may be an instance or two, which too must have been avoidable, there has been
no occasion either for any disrespect having been shown by the Supreme Court
to the High Court or vice versa or for this Court having been called upon to H
502
SUPREME COURT REPORTS [2004] SUPP. 1 S.C.R.
A take cognizan~e of any instance of disrespect shown to it by any High Court.
(518-F-H; 519-AJ
B
c
9.1. Cooperation can be achieved and tension avoided between two judicial
institutions if only judicial collegiality is learnt, nobility prevails and Holme's
humility rules. (520-B-C]
Benjamin N. Cardozo: "Selected Writings of Benjamin Nathan Cardozo
pp. 427-428, Harry T. Edwards: "Judicial Norms: A Judge's Perspectives",
Washington University School of Law, Oliver Wendell Holmes Jr. Extracted
and cited by J.H. Wooten, "Creativity in the Law" (1972) 4 Aust J Forensic
Sciences p. 107, referred to.
9.2. The interpretation of the Constitution cannot fluctuate with the
different values in which different Judges believe. It is the concept of the
common good, which ought to guide us-as institutions and as individuals--
in testing times. (520-D-E)
D
H.M Seervai: "Constitutional Law of India" 4th Edn., Silver Jubilee
Edn., Vol. 3 Para 25. 481, referred to.
10. Jurisdictionally, and in the hierarchical system, so far as the
exercise of appellate jurisdiction is concerned, undoubtedly the Supreme Court
is a superior forum and the High Court an inferior forum in the sense that
E the latter is subjected to jurisdiction, called 'appellate jurisdiction', of the
former. (520-F-G)
11. The very existence of appellate jurisdiction obli~es the lower
jurisdiction to render all of its assistance to the higher jurisdiction to enable
F the exercise of appellate jurisdiction fully and effectively. The lower forum
may be called upon to certify its record of ca~ and proceedings to the superior
forum. The superior forum may stand in need of some information which,
being in the possession or knowledge of the subordinate forum, shall have to
be made available only by it. The superior forum may issue a stay order or
restraint order or may suspend, expedite or regulate the proceedings in the
G subordinate forum. During or at the end of the exercise of the appellate
jurisdiction any direction made by the higher forum shall have to be complied
with by the lower forum, otherwise the hierarchy becomes meaningless.
(520-G-H; 521-B-CJ
12. Though, the jurisdiction conferred on the Supreme Court under
H Article 136 is very wide and no technicality can prevent or hinder the effective
-•
TIRUPATI BALAJI DEVELOPERS PVT. LTD. v. STATE
503
exercise of such jurisdiction, yet as a rule of prudence and self-imposed A
discipline the superior forum refuses to exercise its jurisdiction in the first
instance if the grievance raised is capable of being taken care of by any lower
forum competent to do so. (521-B-C)
13. On 28-10-2002, this Court exercised self-control and refused to
B
entertain the SLP forming an opinion as to why it should step in and why it
should not leave it open to the High Court to freely exercise its constitutional
jurisdiction and that too in public interest in the present case. However, the
grievance raised needed to be heard early; to form such opinion and issue a
consequential direction undoubtedly were within the competence of this Court
under Article 136 of the Constitution. Later on, the order dated 3-11-2003 C
came to be passed on the petition supported by an affidavit, stating the facts
and mentioning the dates, giving rise to the occasion for filing the same, which
was, if not a complaint, at least a grievance that the High Court had failed to
comply with the order dated 28-10-2002 passed by this Court in exercise of
its jurisdiction conferred by Article 136 of the Constitution. The Court felt
that the order should have been complied with. The Court proceeded with the D
assumption that in the ordinary course it would not be persuaded to think,.
much less believe, that the High Court was not complying with the order of
this Court, if only the order has been brought to its notice. So, to ascertain
the facts this Court called for a response. The Registrar General of this Court
addressed a communication to the Registrar General of the High Court E
seeking information. The communication should have been dealt with on the
administrative side and responded to by the Registrar General of the High
Court, just apprising this Court of the correct factual position. If there was
no error, no default and nothing like non-compliance at the end of the High
Court, an appraisal in that regard contained in a communication with ~rief
. necessary facts by the Registrar General of the High Court to the Registrar F
· General of this Court, which the latter would have placed for consideration of
this Court on the judicial side, was enough. Such a procedure is followed quite
often and nobody has ever taken any exception to this practice barring the
singular instance which is reluctantly being dealt with. [521-D-H; 522-A-B]
15.1. The wrong impression created in the minds of the Division Bench G
of the High Court in this case can only be regretted. Merely on account ofan
innocuous communication by this Court addressed to the Registrar General
of the High Court, the High Court was not reduced to the status of a litigant
nor the High Court came to be arrayed as a party nor the High Court as an
institution and as a court of record was called upon to give an explanation or H
I
504
SUPREME COURT REPORTS (2004] SUPP. l S.C.R.
A to respond. (522-B-C)
15.2. It is obvious that any person approaching this Court by indulging
into misadventure of suggestio fa/si or suppressio veri, would suffer the
consequences but that would be only after the facts have been ascertained.
Ordinarily, what was there to disbelieve the averments made in the petition,
B filed· before this Court detailing the facts and supported by an affidavit? Yet,
the Court did not act in haste on the petition and did not pass any order aparte. Acting with care, caution and circumspection - and obviously with
respect to the High Court - it held its hands back and tried to ascertain the
facts. There was absolutely no occasion for the High Court to feel annoyed
C and disturbed much less to feel perturbed and react in the manner in which
it has unfortunately done. The High Court should have known that both the
order, the order.dated 28-10-2002 as also the order. dated 3-11-2003 were
passed:by the Benches headed by the Chief Justice oflndia, the paterfamilias
of the Indian Judiciary. {522-D-F)
D
15.3. The order dated 3-12-2003, passed by the Division Bench of the
High Court, is unfortunate. This Court is not feeling too happy to pass the
present order. This Court's embarrassment stands multiplied when it is
noticed that the Division Bench of the High Court, which passed the order,
dated 3-12-2003; too w~s headed by the Chief Justice of the High Court. Ali
E this was avoidable and should have been avoided far from making a mountain
out of a .molehill {520-F-G)
16. However, this Court has to maintain the dignity of the august
institution as the Apex Court of the country and undo a mistaken assumption
of the High Court, that any order of this Court was iotended to undermine
F the High ~ourt's status as a constitutional court or court of record. Such an
order of the High Court, which has done no good either to this Court or to
the High Court itself, having been brought to the notice of this Court, 'this
Court is constitutionally obliged not to blink its eyes but to act. Therefore, it
is directed that all those passages which have been extracted and reproduced
in the earlier part of the judgment, from the order dated 3-12-2003 passed by
G the Division Bench of the High Court, be expunged and scored out as
derogatory of this Court, disparaging, totally uncalled for and making
observations in the proceedings of this Court which the High Court should
not have made. Such remarks should not continue to be retained on the record
of the High Court as a Court of record. The order shall be carried out in
H letter and spirit and the compliance reported to the Registrar General of this
TIRUPATI BALAJI DEVELOPERS PVT. LTD. v. STATE [LAHOTI, J.]
505
Court by the Registrar General of the High Court. This Court departs with A
the good hope that there would be no other occasion for it to make such an
order. [522-G-H; 523-A-B-C)
CIVIL APPELLATE JURISDICTION : S.L.P. (C) No. of2004 CC Nos.
8071-8072 of 2002.
From the Judgment and Order dated l. l 0.200 I of the Patna High Court.
in C.W.J.C. No. 6941and6997of1988
P.S. Mishra, Tathagat H. Vardhan, Amitabh C. Mishra, Dhruv Kumar Jha
and C.D. Singh for the Petitioners.
Sunil Roy, Manish Mohan, B.M. Prasad, Mrs.Anita Mohan and Ugra
Shankar Pd., for the Respondents.
The Judgment of the Court was delivered by
B
c
R.C. LAHOTI, J. A Division Bench of the High Court of Judicature at D
Patna is seized of a hearing in public interest exercising its jurisdiction under
Articles 226 of the Constitution. The High Court is feeling concerned over the
drainage system, the sewerage syster.;., the drinking water supply system, the
kerb on the road being in shambles and reallocating of footpaths. The High
Court seems to have chosen one road as model habitat area so as to set an E
example for other roads conforming with the discipline governing urbanization
and urban planning according to law and ensuring that future generations get
a safer city to live in, a civic city, with civic amenities, for the benefit of civic
citizens. The High Court has been issuing orders in the nature of continuing
mandamus and has also been monitoring the compliance. On 1.10.2001, the
High Court passed an interim order containing the following directions: (a) F
The street alignment is in a straight or a gentle curve natural to the road and
the set backs, from the centre of the road, as indicated in the details given
to the court in column 3, are maintained. Buildings eclipsed by a 110' (feet)
distance on either side of the road are to be identified; (b) The storm-drain
will be planned so that they run contiguous to the boundary alignment of the
s_ix properties shown and measured, reference order dated 28 September, 200 l; G
(c) The flanks/footpaths/side walks will run parallel in a straight line between
the storm-drain and the carriage width of the metal road; and ( d) At any
intersection of the Bailey Road, a diameter of I 00 metres from the centre of
the road will be planned as a protected area and set backs laid so that there
is no blind spot or obstruction to sight. Minimum frontage and set back off H
506
SUPREME COURT REPORTS [2004) SUPP. I S.C.R.
A this circumference is to be maintained at I IO' (feet). One of the effects of the
proceedings before the High Court and the orders passed therein was the
restraint of all construction work on the entire stretch of the public street, the
Bailey road, within I IO feet from the centre of the road on either side. The
local authorities were restrained from approving any map for construction
B within the said stretch of the area.
It appears that there were a few builders/developers engaged in
construction activity and the interim order dated l.10.2001 had the effect of
bringing their construction activity to a standstill substantially. On 17.9.2002,
seven of them filed a petition in this Court seeking special leave to appeal
C against the High Court's order dated l.10.2001. In the cause title they had
described themselves as interveners/petitioners. It appears that they were not
parties to, nor were noticed in, those proceedings in which the order dated
l.10.2001 came to be passed, at least they say so in their application seeking ·
permission to file SLP accompanying the SLP. When the matter came up for
hearing before this Court on 28.10.2002, an obvious query raised by the Court
D and put to the learned counsel for the petitioners was that if, on their own
showing, they were not parties impleaded before the High Court, then why
should they not approach the High Court putting forth their case and grievance,
if any, and pray for vacating or modifying the interim order dated l.10.2001
passed by the High Court. The learned counsel for the petitioners sefl:ms to
E have brought to the notice of this Court that the petitioners had already
applied for vacation of the interim order dated l.10.2001 before the High
Court. This Court, in its order dated 28.l 0.2002, held - "In that view of the
marier, we are not inclined to entertain these petitions .and the same are,
accordingly, dismissed. The petitioners may aplJroach the Hon'ble the Chief
Justice for expediting the hearing of the said matter. We hope and trust that :
F the matter would be decided at an early date"
On April 5, 2003, I.A. Nos. 8-9 of2003 were filed by the petitioners in
this Court submitting that their applications praying for vacating of the
interim order dated l.10.2001 were already filed on 16/i?.7.2002 but till date
no date has been fixed for hearing the stay vacate application of theirs. It is ·
G also mentioned in the application that mentioning slips were submitted which
were taken on record to be put up when the bench is available. It was further
stated that after the order of this Court dated 28.10.2002 such mentioning slips
were filed before the Hon'ble the Chief Justice on 21.11.2002, 12.12.2002 and
16.1.2003 praying for early listing of the matter but no orders were passed.
H The averments made in the application are supported by affidavit and also
TIRUPATI BALAJI DEVELOPERS PVT. LTD. v. STATE [LAHOTI. J.]
507
documents which consist mostly of the copies of records of proceedings. in A
High Court. The applicants had sought for recalling of the order of this Court
..
disposing of the SLP, the SLPs being taken up for hearing and the operation
of the interim order dated 1.10.2001 passed by the Patna High Court being
stayed. The applicants enclosed a chart (Annexure P-8) with the application
setting out the amount of monetary Joss which they had already suffered and
were continuing to suffer month by month on account of their applicatiol)s B
to vacate the stay not being taken up for hearing by the High Court.
This Court directed notice on the applications to be issued. On 3.11.2003,
a three-Judges Bench presided over by Hon'ble the Chief Justice of India,
after hearing the learned counsel for the parties appearing, and in their anxiety C
for ascertaining if the averments made by the petiti~ners were correct, called
for a response from the High Court. The Court wished to ascertain if the
petitioners had filed any applications and if the same were not listed for
hearing. Obviously the purpose of this Court in passing the order dated
3.11.2003 was to ascertain the facts, also to emphasise the need for an early .
listing of the petitioners' 'stay vacate applications' if that was not already D
done. The order of this Court was communicated by the Registry of this Court
to the Registrar General of the High Court.
It appears that the Registrar General of the High Court prepared a note
and put up the same before Hon'ble the Chief Justice of Patna High Court
for consideration. The note seems to have been taken up for consideration E
not on the administrative side but on judicial side. The High Court seems to
have taken a strong exception to the order dated 3.11.2003 of this Court
forming an impression as if this Court has 'directed' the High Court - as an
institution - 'to give an explanation'. A few excerpts from the order dated
3.12.2003 passed by the Division Bench of the High Court are as under:-
p
"It is unfortunate, very unfortunate, that a dead and decided case
was revived and sent for from the record room on the application of
an intervenor, who was not even a party to the cause in any case, and
an explanation has been sought from the High Court. The High Court
has been asked to give a response to the Supreme Court on the G
complaint of a quasi-litigant, who has not filed a case himself at the
High Court but seeks certificate from the Supreme Court that the High
Court has demurred. How does the High Court respond? The Bench
providing an explanation to the Supreme Court? The Registrar General,
High Court, filing an explanatory note to the Registrar General, Supreme H
508
SUPRbME COURT REPORTS [2004) SUPP. I S.C.R.
A
Court? Should the High Court engage a lawyer? Has the High Court
erred in any judgment? Is the High Court an adversary?
This Court feels constrained to point out that perjury has taken
place at the Bar of the Supreme Court. Falsehoods have been stated.
The sanctity of public justice has been defiled in two Courts, the High
B
Court and the Supreme Court.
c
D
E
F
G
The report of the Registrar General, which details·this dishonesty,
should be an eye-opener as to how public justice has been defiled by
falsehoods. And once the stream of justice has been polluted, it is like
a poisoned river which kills rather than gives life.
xxx
xxx
xxx
In this case, an intervenor has given a picture to the Supreme Court
that no proceedings in this case have been going on in the High
Court, which is untrue. Proceedings have been going on regularly.
The Supreme Court has sought the "response" of the High Court,
fortunately observing "on the ground alleging that despite petitioners
mentioning .... for early hearing ... .'T. This is the response. This Court
may have had no occasion to give its response had it not been
sought. Courts ai-e not meant to chase their orders, as they are meant
to discharge their obligations with a total sense of detachment.
Adversary parties are meant to point out falsehoods before the Court,
but even this is an abnormality,falsehoods are not expected to be the
normalcy of Court proceedings.
Then, in a Public Interest Litigation, a financially weak party
bringing a cause and expecting positive action for the public good
may regret the day of approaching the Court, if proceedings are
frustrated by an outsider distorting the issues in a higher Court.
In the case in which a "response" is being sought, the matter is
connected to Urban Planning.
xxx
xxx
This Court is taking the liberty to speak frankly because a response
was sought. The Registrar General was in a quandary and asked the
Court as to how he should present the response. He is an official,
H
should he give it to the Registrar General of the Supreme Court? He
,_
TIRUPA TI BALAJI DEVELOPERS PVT. LTD. v. STA TE [LAHOTI, J.]
509
wanted to know, should the judges give an explanation? The only A
answer lies on what is a Superior Court of Record. If the facts are pure
before the Constitution Court in its appellate jurisdiction, which the
Supreme Court oflndia is, all these issues will not arise. If falsehoods
are pleas at the Supreme Court, and the Supreme Court gets the
feeling that some such situation may exist, then there are inany other B
ways of finding out. Seeking an explanation from the High Court at
the instigation of an erring litigant, would be a very sad day.
xxx
xxx
xxx
This court is very sad to record this order. As concealment of
records and arguing untruths and false pleadings have taken place at C
the Bar of the Supreme Court, which may tantamount to offences
against public justice. It will be only appropriate, in the public interest
and the interest of justice, that a copy of this order may be sent by
the Registrar General to the Registrar General, Supreme Court of India
to be placed (a) before the Hon'ble Court which passed the or~ers D
dated 28 October 2002 and 3 November 2003 and (b) to the Attorney
General oflndia."
In view of the direction of the Patna High Court contained in the last
paragraph of the order, extracted above, and under instructions by the Hon'ble
the Chief Justice of India, the matter has been placed before this Bench uf E
ours. We have gone through the order passed by the Division Bench of Patna
High Court presided over by Hon. the Chief Justice.
A few questions arise. Could not this Court, exercising appellate
jurisdiction under Article 136 of the Constitution, have· directed a
communication be~g addressed to the High Court calling for information with F
the object of (i) ascertaining the facts, (ii) securing compliance with the
direction contained in the order dated 28.