Interference with finding of fact:
In exercise of jurisdiction under Article 136 of the Constitution of India, this Court does not normally reappreciate the evidence and findings of fact; but where the findings of the High Court are perverse or the findings are likely to result in excessive hardship, the Supreme Court would not decline to interfere merely on the ground that findings in question are findings of fact. After referring to various judgments on the scope in exercise of power under Article 136 of the Constitution of India, in Mahesh Dattatray Thirthkar v. State of Maharashtra (2009) 11 SCC 141, this Court in para (35) summarized the principles as under:-
“35. From a close examination of the principles laid down by this Court in the aforesaid series of decisions as referred to hereinabove on the question of exercising power to interfere with findings of fact by this Court under Article 136 of the Constitution, the following principles, therefore, emerge:
• The powers of this Court under Article 136 of the Constitution of India are very wide.
Continue reading “Powers of Supreme Court under article 136.”
Judicial Review of Arbitration Award:
The main reason because of which the NHAI lost in those proceedings was that two possible interpretations could be given to the clause in question and, therefore, the recourse taken by the Arbitral Tribunal by adopting one particular interpretation was not required to be interfered with. SLP against that was dismissed. In a situation like this, this Court would not have undertaken further exercise in the matter. However, another Arbitral Tribunal in the case of M/s. Ssangyong Engineering and Construction Co. Ltd. has accepted the other view, which goes in favour of the NHAI. It leads to an anomalous situation. The NHAI has entered into multiple contracts with different parties containing the same clauses of price variation. Once we find that Arbitral Tribunals are taking different views, and the view taken in favour of the NHAI is also one of the possible interpretations, the effect thereof would be to uphold both kinds of awards even when they are conflicting in nature in respect of the same contractual provision. It may not be appropriate to countenance such a situation which needs to be remedied. Therefore, under this peculiar situation, we deem it proper to go into the exercise of interpreting the said clause so that there is a uniformity in the approach of the Arbitral Tribunals dealing with this particular dispute and a sense of certainty is attached in the outcomes. Continue reading “Interpretation of Price Adjustment aka Price Escalation/Variation Clause”
Forum for judicial review of Land Acquisition:
Section 9 of CPC exclude jurisdiction of Civil Court:
Futile attempts have been made by respondent no. 4 only to see that the allottees are harassed and to keep the litigation pending. After the final notification, an award was passed and compensation was deposited. Possession was taken and the same was evidenced by the Panchanama prepared as far back as 23.09.1986. Notification under Section 16(2) of the Land Acquisition Act was issued on 20.01.1987 disclosing the factum of taking possession of the land in question. Attempt made by respondent no. 4 for getting the disputed land de-notified has also failed as far back as 15.01.1993, when the State Government has rejected the representation of respondent no. 4 seeking de-notification. The writ petition filed by respondent no. 4 challenging such order of dismissal of the representation was also dismissed. Despite the same, respondent no. 4 is pursuing the matter by filing writ petition after writ petition. It is a clear case of abuse of process of law as well as the Court.
Abuse of process of Court:
Continue reading “Civil court has no jurisdiction to interfere with acquisition of land”
Judicial powers and its scope
Judiciary enjoys neither the legislative nor executive power. Its duty is to preserve Constitution, its mandates and make the people wielding power to act within limits provided by the Constitution and make them directly accountable for their acts to the authorities provided under the hierarchy of Constitution. It is said constitution is just to be common sense of the people and was never designed for trial of logical skills or visionary speculation.
Once the limits are imposed by law or Legislature, consequences are inevitable. The acts can only be done in accordance with the enactment. Judges’ morality or morality of one section may be pernicious. Courts cannot impose their views for the governance of the people who have a right to be governed by law or elective representatives but not by an unelected representatives and unaccountable committee of lawyers applying no will but their own. Continue reading “Role of Judiciary in Democracy”
Conduct of a litigant before court.
Whenever a person approaches a Court of Equity, in the exercise of its extraordinary jurisdiction, it is expected that he will approach the said court not only with clean hands but also with a clean mind, a clean heart and clean objectives.
Thus, he who seeks equity must do equity. The legal maxim “Jure Naturae Aequum Est Neminem cum Alterius Detrimento Et Injuria Fieri Locupletiorem”, means that it is a law of nature that one should not be enriched by causing loss or injury to another.
The judicial process cannot become an instrument of oppression or abuse, or a means in the process of the court to subvert justice, for the reason that the court exercises its jurisdiction, only in furtherance of justice. The interests of justice and public interest coalesce, and therefore, they are very often one and the same. A petition or an affidavit containing a misleading and/or an inaccurate statement, only to achieve an ulterior purpose, amounts to an abuse of process of the court.
The quest for personal gain has become so intense that those involved in litigation do not hesitate to seek shelter of falsehood, misrepresentation and suppression of facts in the course of court proceedings. A litigant who attempts to pollute the stream of justice, or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final. Continue reading “Are you abusing the process of court?”
Principles for review by Supreme Court of Philippines:
Supreme Court of a country is the last court of record. Thereafter, no remedy of review of an order is left to a litigant. What should be the principles to decide the scope of judicial review by last court of land:
in the exercise of the Supreme Court’s power of review, the Court is not a trier of facts and does not normally undertake the re-examination of the evidence presented by the contending parties during the trial of the case considering that the findings of facts of the CA are conclusive and binding on the Court. However, the Court had recognized several exceptions to this rule, to wit:
(1) when the findings are grounded entirely on speculation, surmises or conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible;
(3) when there is grave abuse of discretion;
(4) when the judgment is based on a misapprehension of facts;
(5) when the findings of facts are conflicting;
(6) when in making its findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee;
(7) when the findings are contrary to the trial court;
(8) when the findings are conclusions without citation of specific evidence on which they are based;
(9) when the facts set forth in the petition as well as in the petitioner’s main and reply briefs are not disputed by the respondent;
(10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; and
(11) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion. ………….
(Italics in original; underscoring supplied; citations omitted)
Insular Life Assurance Company, Ltd. v. Court of Appeals. (G.R. No. 126850, April 28, 2004, 428 SCRA 79, 85-86).(Supreme court of Philippines)
Fraud avoids all judicial acts, ecclesiastical or temporal
Fraud is a deception deliberately practiced to achieve unfair or unlawful gain. Fraud apart from being a criminal offence is also a civil wrong in India, as at most places. It is defined by section 17 of Contract Act of India. Misrepresentation is defined by section 18 of said Act. The definition of fraud and misrepresentation is as under:
Definition of fraud:
“Fraud” means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agents, with intent to deceive another party thereto his agent, or to induce him to enter into the contract;
(1) the suggestion as a fact, of that which is not true, by one who does not believe it to be true;
(2) the active concealment of a fact by one having knowledge or belief of the fact; Continue reading “Fraud avoids all acts.”
Finality assigned to the decision of Tribunal:
Judicial review of error of law committed by a tribunal:
Visitor of a university acting as a judge has exclusive jurisdiction and that his decision is final in all matters within his jurisdiction. The common law courts have through three centuries consistently resisted all attempts to appeal decisions of the visitor. The courts have however been prepared to confine the visitor to his proper role as a judge of the internal
affairs of the foundation by the use of the writs of prohibition and mandamus.
Can Courts judicially review such decision?
per Lord Browne (Lord Kieth concurring) (Majority decision): The court has no jurisdiction to review the decision of a visitor made within his jurisdiction.
per Lord Grriffith: It is in my opinion important to keep the purpose of judicial review clearly in mind. The purpose is to ensure that those bodies that are susceptible to judicial review have carried out their public duties in the way it was intended they should. In the case of bodies other than courts, in so far as they are required to apply the law they are required to apply the law correctly. If they apply the law incorrectly they have not performed their duty
correctly and judicial review is available to correct their error of law so that they may make their decision upon a proper understanding of the law.
In the case of inferior courts, that is courts, of a lower status than the High Court, such as the Justices of the Peace, it was recognised that their learning and understanding of the law might sometimes be imperfect and require correction by the High Court and so the rule evolved that certiorari was available to correct an error of law of an inferior court. At first it was confined to an error on the face of the record but it is now available to correct any error of law made by an inferior court. But despite this general rule Parliament can if it wishes confine a decision on a question of law to a particular inferior court and provide that the decision shall be final so that it is not to be challenged either by appeal or by judicial review.
per Lord Slynn (Lord Mustill, concurring) (Minority view): With deference to the contrary view of the majority of your Lordships, in my opinion if certiorari can go to a particular tribunal it is available on all the grounds which have been judicially recognised. I can see no reasons in principle for limiting the availability of certiorari to a patent excess of power (as where
a Visitor has decided something which was not within his remit) and excluding review on other grounds recognised by the law. If it is accepted, as I believe it should be accepted, that certiorari goes not only for such an excess or abuse of power but also for a breach of the rules of natural justice there is even less reason in principle for excluding other established grounds. If therefore certiorari is generally available for error of law not involving abuse of power (as on the basis of Lord Diplock’s speeches I consider that it is so available) then it should be available also in respect of a decision of a Visitor.
I am not persuaded that the jurisdiction of the Visitor involves such exceptional considerations that this principle should be departed from and that some grounds be accepted and others held not to be available for the purposes of judicial review.