-1- F.A. 378.2020 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR FIRST APPEAL NO. 378 OF 2020 APPELLANTS: - 1. Smt. Mangala wd/o Vijay Khandar (Ori. Petitioners) Aged about-43 years Occu. Household. 2. Ku. Pallavi d/o Vijay Khandar, Aged about-22 years, Occu. Student 3. Sagar s/o Vijay Khandar, Aged about-21 years, Occu. Student. 4. Smt. Indubai wd/o Annaji Khandar Aged about-70 years, Occu. Household. All the Appellants No. 1 to 4 are R/o Patansawangi, Tah. Saoner, District- Nagpur. ... Versus ... RESPONDENT: - National Insurance Company Limited, (Ori. Respondent) Through its Manager, Dharampeth Branch, Laxmi Bhavan Square, Dharampeth, Nagpur-440010 --------------------------------------------------------------------------------------------------------------------------------------------------- Shri H.P. Lingayat, Advocate for the Appellants. Shri B.P. Bhatt, Advocate for the Respondent. --------------------------------------------------------------------------------------------------------------------------------------------------- CORAM : S.M. MODAK, J. DATE OF RESERVING THE JUDGMENT : 14/09/2020 DATE OF PRONOUNCING THE JUDGMENT: 29/09/2020 \ -2- F.A. 378.2020 J U D G M E N T:- The issue involved in this appeal is about liability of insurance company to pay as per clause of ' personal accident cover' in the insurance policy. The issue is about extent of liability of insurance company when the insured/owner of the Jeep was himself the driver-cum-deceased and when no other vehicle is involved. The issue is whether the Motor Accident Claims Tribunal (for short "M.A.C.T") has got jurisdiction to decide such claim petition. 02] The learned Member of M.A.C.T. negatived the grievances of the claimants who are legal representatives of the deceased/insured. The legal representatives of the deceased - Vijay Annaji Khandar claimed compensation from the respondent - Insurance Company from the M.A.C.T., Nagpur by invoking the provisions of Section 163-A of the Motor Vehicles Act, 1988 (for short "M.V. Act"). 03] Existence of valid insurance policy was not in dispute. Deceased - Vijay Khandar was the owner of the Jeep and a policy holder. On the material date i.e. 16/10/2004 at 17:30, he was driving the Jeep on Saoner, Nagpur Road. The deceased dashed his Jeep to a tree while avoiding a head on collision with a Tata Sumo. The Sumo was coming from opposite direction and the driver take the Sumo on right side. If the deceased could not have taken right turn, further vehicular accident might have happened. -3- F.A. 378.2020 Deceased succumbed to the injuries. 04] The petition was contested by the Insurance Company - respondent. Deceased himself was the owner/insured. The Company denied their liability. The policy does not cover loss occasioned to the insured. Because he is not the third party. There is also emphasis on withdrawal of earlier claim petition filed under Section 166 of M.V. Act and non-maintainability of fresh petition under Section 163-A of M.V. Act. Both have adduced oral and documentary evidence. 05] It is true that issue of negligence is not relevant in an inquiry in a claim petition under Section 163-A of M.V. Act. Trial Court upheld the objection taken on behalf of the insurance company. Trial Court held: "the owner/insured cannot be said to be a third party and hence exonerated the company". It is the correctness of this judgment dated 6 th February, 2020 passed in M.A.C.P. No.6 of 2015 is challenged before this Court by the original claimants. 06] Learned Advocate Shri Lingayat and learned Advocate Shri Bhatt argued on behalf of original complainant/appellant and respondent/Company respectively. Both relied upon various judgments. Amongst them, there is unanimity that deceased/owner/insured is not a third party falling under the provisions of Section 147 of M.V. Act. So, the -4- F.A. 378.2020 scope of appeal is narrowed down. The issue is restricted-- 1) whether Insurance Company is liable to reimburse under the caption personal accident of insured? 2) whether the M.A.C.T can award compensation? 07] Both the learned Advocates have relied upon various judgments. One can claim compensation under Section 166 or under Section 163-A of M.V. Act. There can be compensation for the loss caused on account of death or permanent injury. There can be compensation for damage caused to the property. There can be a claim for compensation on account of both the heads. An accident may involve only one vehicle or it may involve more than one vehicle. 08] You may claim compensation from the registered owner only (if vehicle is not insured) or from registered owner and the insurance company. In an accident, there may be loss/damage to the occupants of the vehicle/to the vehicle or there may be loss to persons/property outside the vehicle. Law mandates the owner to obtain insurance policy. It is called as Act Policy. It is a biparty agreement between owner/insured and the company/insurer. So, the insurance company indemnifies the insured to repay if any loss is caused to a third party due to act of insured. Section 146 of M.V. Act mandates the owner to obtain insurance policy before motor vehicle is put to use. Whereas Section 147 of M.V. Act lays down -5- F.A. 378.2020 requirements of policies and limits of liability. So also the insured is free to contract with the insurer to reimburse for the personal loss caused to the occupants of the vehicle. There is a purpose behind mandating to obtain Act Policy. Once you causes an accident thereby causing damage to a third person, the interest of such third person needs to be protected. In this appeal, we are not concerned with liability to reimburse loss of third party. But we are concerned with liability of insurance company to reimburse for the loss caused to the insured as per personal accident coverage. Though, trial Court has not given finding on this issue, both the learned Advocates have consented to this Court to give finding on this issue by this Court. 09] Always, there is a controversy raised who is a 'third party'. It is not defined. In common parlance, a party other than insurer and insured is called third party. Question is always raised whether registered owner can be said to be a 'third party'. This question is no more res-integra. There are numerous judgments apart from the judgments cited before me. Learned Advocate Shri Lingayat cited these judgments because there were directions to pay as per personal accident clause (even though the insured is not treated as a third party). JUDGMENTS RELIED UPON BY THE APPELLANTS "10.The liability under Section 163-A of the Act is on the owner of the vehicle as a person cannot be both, a claimant as also a recipient. The heirs of Janakraj could -6- F.A. 378.2020 not have maintained a claim in terms of Section 163-A of the Act. For the said purpose only the terms of the contract of insurance could be taken recourse to". 10] These were the observations of Hon'ble Supreme Court in case of Oriental Insurance Company Limited Vs. Rajni Devi and Ors. reported in (para 10). That was a claim under Section 163-A of M.V. Act and only one vehicle (motorcycle) was involved and one of the rider expired when motorcycle went out of control. Owner paid extra amount of Rs.50/- covering his personal insurance (liability of compensation was quantified to Rs.1,00,000/-). 11] In case of Ningamma and Anr. Vs. United India Insurance Company Limited reported in 2009 (13) SCC 710, it has been held that: "19. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to pay the same is on him. This proposition is absolutely clear on a reading of Section 163-A of the MV Act. Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163-A of the MV Act." It has been further held: "20. When we apply the said principle into the facts of the present case we are of the view that the claimants were not entitled to claim compensation under Section 163-A of the MV Act and to that extent the High Court was justified in coming to the conclusion that the said provision is not applicable to the facts and circumstances of the present case". -7- F.A. 378.2020 Deceased succumbed to the injuries caused while driving motorcycle. Motorcycle hits a bullock cart (which was proceeding ahead) when the cart stops suddenly. Deceased was not the owner. He borrowed it from the owner. As such, he steps into the shoes of the owner. Claim petition was under Section 163-A of M.V. Act [however the matter was remanded to High Court for considering it under Section 166 of M.V. Act]. 12] Hon'ble Supreme Court had the occasion to decide correctness of the decision of High Court in case of National Insurance Company Limited Vs. Ashalata Bhowmik and Ors. reported in 2018 (9) SCC 801. The insurance company was held responsible to pay to the legal representatives of deceased to driver/owner of vehicle. Hon'ble Supreme Court reiterated the law regarding liability of insurance company in case of death of owner/its own insured. When insured is not liable, question of liability of insurer does not arise (however insurance company was directed to pay Rs.2,00,000/- with interest for personal accident cover). 13] In case of Ramkhiladi and Anr. Vs. The United India Insurance Company and Anr. reported in 2020 (2) SCC 550, Hon'ble Supreme Court dealt a case involving accident of two motorcycles. The driver of one motorcycle expired. His legal representatives decided not to proceed against the owner/insurance company of second motorcycle. They proceeded under Section 163-A of M.V. Act against the owner and insurance company of motorcycle driven by the deceased. -8- F.A. 378.2020 14] Learned Member of M.A.C.T. held company responsible. The deceased was held to be in the employment of the owner. High Court set aside the judgment. F.I.R. was lodged against the driver of another motorcycle and the claimants have not joined the owner and company of that motorcycle. 15] Hon'ble Supreme Court on re-appreciation of evidence held "deceased was permissible owner and not employee of owner" (para 5.3). Deceased was not held to be a third party and the parties are governed by the contract of insurance and liability of company would be qua 3 rd party only. The claimants were awarded Rs.1,00,000/- with interest under personal accident claim. JUDGMENTS RELIED UPON ON BEHALF OF INSURANCE COMPANY 16] According to learned Advocate Shri Bhatt in following judgments, the M.A.C.T. is held not competent to award amount as per personal accident clause. They are in case of--- 1. Smt. Sangeetha Subramani and others Vs. Sri Krishna Chari Puttachari delivered by High Court of Karnataka on 24/09/2018 (in M.F.A. No.5337/2011). 2. M/s. The Cholamandalam MS General Insurance Company Limited Vs. Ramesh Babu in C.M.A. No.2434 of 2019 and -9- F.A. 378.2020 C.M.P. No.11121 of 2019 dated 02.09.2020 delivered by High Court of Madras. 17] In case of Smt. Sangeetha Subramani, the issue was "whether rider of a two wheeler (who is not the owner) can claim compensation as third party for an accident where no other vehicle is involved. After taking overview of the decision of High Court as well as Hon'ble Supreme Court, the issue was answered in the negative. The claimants were held not entitled to claim compensation under Section 163-A or 166 of M.V. Act. Learned Advocate Shri Bhatt stressed more on the observations, when comprehensive policy is there. In that eventuality also, the claimants are entitled not to claim compensation for own damage and premium. 18] Learned Advocate Shri Lingayat politely disagreed with those observations. I have read this judgment minutely. There cannot be a dispute about liability of company to reimburse the loss to the insured himself. The dispute is whether insurance company is also not liable to reimburse to the insured when there is personal accident cover. It will be relevant to consider in what manner, the High Court came to that conclusion. High Court of Karnataka has referred to two judgments of Hon'ble Supreme Court. They are in case of-- 1. Oriental Insurance Company Limited Vs. Rajni Devi and Ors. reported in 2008 (5) SCC 736. -10- F.A. 378.2020 2. National Insurance Company Ltd. Vs. Laxmi Narain Dhut reported in (2007) 3 SCC 700. No doubt, the High Court of Karnataka has considered the observations in case of Rajni Devi pertaining to entitlement of insured. But it is important to note that finally Hon'ble Supreme Court gave directions to pay Rs.1,00,000/- for personal accident cover. In para No. 24 of Smt. Sangeetha's Case, it has been observed: "24. So far as claims relating to own damage are concerned, the Apex Court, in the case of National Insurance Company Limited Vs. Laxmi Narain Dhut has held that it has to be decided by another forum i.e., forum created under the Consumer Protection Act, 1985. Therefore, even if the policy is a comprehensive policy covering the risk of the insured, a claim seeking compensation for death or permanent injuries suffered by the insured, a claim petition under any of the provisions of MV Act, is not maintainable. On the same principles, if a contract policy covers not only the owner-cum-driver of the vehicle, but also covers "any other person driving the vehicle", the claim cannot be maintained before Motor Accidents Claims Tribunal (for short 'MACT'). The remedy lies before the Consumer Redressal Forum" Probably, High Court of Karnataka has considered these observations even while rejecting the claim under comprehensive policy. According to learned Advocate Shri Lingayat, these observations are obiter dicta and they are not the observations on the issue involved in that case before Hon'ble Supreme Court. According to him, High Court of Karnataka committed error in accepting those observations. -11- F.A. 378.2020 19] In case of M/s. The Cholamandalam, similar issue was involved about liability of insurance company to comply with the promises given as per personal accident coverage clause of package policy. The claim was allowed by M.A.C.T. Number of contentions were raised on behalf of insurance company before the High Court. It includes the jurisdiction of M.A.C.T., entitlement to compensation (more than the maximum limit mentioned in the clause) under the phrase 'just compensation'. All the contentions were answered in favour of the insurance company and the claim petition was dismissed. Learned Advocate Shri Bhatt relied upon paragraph Nos. 28 to 38 and 41. He brought to my notice that the Court was pleased to differentiate with the observations made in case of Bajaj Allianz General Insurance Company Limited Vs. C. Ramesh reported in 2013 (1) TN MAC 325 (relied upon by the appellant). 20] Learned Advocate Shri Lingayat tried to distinguish the fact of that case. According to him, there was an objection to jurisdiction taken at the beginning itself. Whereas, in this case it is not taken. It is true that in the case of M/s. The Cholamandalam, there was jurisdiction objection taken at the beginning. It is also true that it was not decided by the M.A.C.T. 21] I have read the written statement filed on behalf of the insurance company before the trial Court. In para No.17, there was a plea taken that deceased is not third party and hence, claim is not maintainable. There was -12- F.A. 378.2020 also a plea that once earlier petition is dismissed (and restoration petition was not pressed) fresh petition on the same cause of action is not maintainable. CONCLUSION 22] With respect to those observations, I differ with the view taken by High Court of Karnataka and High Court of Madras. The issue involved before Hon'ble Supreme Court in case of Laxmi Narain Dhut is relevant to be considered. OBSERVATION IN CASE OF LAXMI NARAIN DHUT "21. Where the claim relates to own damage claims, it cannot be adjudicated by the insurance company, but it has to be decided by another forum i.e. forum created under the Consumer Protection Act, 1986 (in short "the CP Act"). Before the Tribunal, there were essentially three parties i.e. the insurer, the insured and the claimants. On the contrary, before the Consumer Forums there were two parties i.e. owner of the vehicle and the insurer. The claimant does not come into the picture. Therefore, these are cases where there is no third party involved". It will also be material to consider the background in which above observations are made. Hon'ble Supreme Court in case of National Insurance Company Limited Vs. Swaran Singh reported in 2004 (3) SCC 297 dealt with the scope of defences available to insurance company while defending the claim petition. Whereas in case of Laxmi Narain Dhut, Hon'ble Supreme Court was posed with a question "whether the observations in case of -13- F.A. 378.2020 Swaran Singh are applicable when third party claims are not involved. It was held "decision in Swaran Singh case has no application to cases other than third party risks". On this background, observation in para 21 are made. So, I agree with learned Advocate Shri Lingayat that High Court of Karnataka ought not to have considered the above observations while deciding the case of Smt. Sangeetha. 23] In case of M/s The Cholamandalam, the High Court of Madras has emphasized on difference between statutory policy and contractual policy. It had also observed about maintainability of claim before M.A.C.T. when issue as to adherence to the promises as per contractual policy is involved. I have minutely read those observations. There is no dispute about difference in between statutory policy and contractual policy. It is also true that the provisions about obtaining statutory policy is recognized in Chapter XI (Insurance of Motor Vehicles Against Third Party Risks) of M.V. Act. It is also true that there is clause as to 'personal accident coverage' in the policy at Exh.37. The policy also includes covering risk of third party. I feel that the High Court in M/s The Cholamandalam's case has taken restricted view while dealing with the issue of jurisdiction of M.A.C.T. I differ with that view. The relevant provisions of M.V. Act need to be considered. RELEVANT PROVISIONS OF M.V. ACT, 1988 24] I do not accept the submission of learned Advocate Shri Lingayat that "the insurance company can be fastened with the liability under the -14- F.A. 378.2020 provisions of sub-section 5 to Section 147 of M.V. Act". The reason is simple. That clause will come in picture only when the policy is issued under Chapter XI. So, unless and until the issue of third party risk is involved, that provision cannot be resorted to. 25] The provisions of Section 165 of M.V. Act deal with jurisdiction of M.A.C.T. When certain conditions are fulfilled, it gets jurisdiction. They are--- a) Claim for compensation in respect of accidents. b) Arising out of use of motor vehicle. If these conditions are fulfilled, M.A.C.T gets jurisdiction. The consequences of accident may be death or bodily injury (two persons) or damage to any property of third party. Now, we have to interpret these provisions vis-a-vis the provisions of Section 147 of M.V. Act. The latter section deals with the requirements of policy in case of third party risk. Now, Section 165 of M.V. Act nowhere contemplates dealing with a claim only when policy is obtained under Section 147 of M.V. Act. We have to understand the legislative meaning for not including this requirement in Section 165 of M.V. Act. The reason is simple. There may be a possibility that a person may use a vehicle without obtaining statutory policy or he may not renew the policy. In that eventuality, it will be argued that M.A.C.T. cannot entertain the petition. However, that is not the legislative mandate. So, I am inclined to hold that petition before the M.A.C.T. will be maintainable once the condition under Section 165 of M.V. Act are fulfilled. So, in the given case, there is a clause of -15- F.A. 378.2020 personal accident coverage in case of motor accident, M.A.C.T. can entertain the petition. 26] So also I am fortified by observations of Hon'ble Supreme Court in case of The Chairman, Thiruvalluvar Transport Corporation Vs. The Consumer Protection Council reported in 1995 (2) SCC 479 and High Court of Madras in case of Bajaj Allianz General Insurance Company Limited Vs. C. Ramesh reported in 2013 (1) TN MAC 325. High Court of Madras in case of Bajaj Allianz General Insurance Company Limited has elaborately dealt with the present issue. After considering various reported and unreported judgments, it came to the conclusion that claim under personal accident cover would also lie before M.A.C.T. and there is no need for the injured/legal representative of the deceased to go to Consumer Forum (para 59). At the same time, it will be relevant to see what our Hon'ble Supreme Court has held about the jurisdiction of the Consumer Forum. This situation has arisen in case of Consumer Protection Council as referred above. The complaint was made directly to National Commission by Consumer Protection Council to claim up compensation due to death of a traveler of a bus. It was granted. When the State Transport Corporation have approached the Hon'ble Supreme Court, the decision was set aside. 27] After taking overview of the provisions of Consumer Protection Act and Motor Vehicles Act, it was held that Consumer Court is not having -16- F.A. 378.2020 jurisdiction. The Motor Vehicles Act is a special law dealing with motor accident compensation, whereas Consumer Protection Act is a general law dealing with grievances of consumers. The complaint was scrutinized in the light of the definition of Complaint and Service given in 1986 Act. It was held that failure of the insurance company to accept the claim does not amount to deficiency in service. It was observed "the complaint, in the instant case, cannot be said to be in relation to any service hired or availed of by the consumer because the injury sustained by the consumer had nothing to do with the service provided or availed of by him but fatal injury was the direct result of the accident. 28] It is pertinent to note that, Hon'ble Supreme Court in the cases referred above i.e. in cases of Rajni Devi, Ashalata Bhowmik and Ramkhiladi was pleased to award compensation as per personal accident cover. FINAL CONCLUSION 29] For the above discussion, I am not inclined to accept the contention of Shri B.P. Bhatt, learned Advocate for the respondent that M.A.C.T. cannot entertain the claim made by the insured/owner under personal accident claim against the insurance company. Dismissal of Petition filed under Section 166 of M.V. Act was not on merits but it was for default. Restoration application was also dismissed for default so, it will also not come in the way of claimants. -17- F.A. 378.2020 FACTUAL ASPECTS 30] Amongst the claimants, claimant - Smt. Mangala Khandar (wife of the deceased) has given evidence. She is not the eye witness. One Purushottam Bonde has given evidence. He was travelling in the Tata Sumo Jeep driven by the deceased. He had seen the accident. In order to avoid collision when the truck coming from the opposite direction, the deceased was compelled to take right turn and the jeep hits the tree. Whereas Nilima Ramesh Godbole is the representative of the insurance company. She had brought on record the certificate of insurance at Exh.37. She admits that as per the personal accident cover risk up to Rs.2,00,000/- is covered. The company has paid Rs.35,000/- towards the damage of the vehicle but she admits that no document to that effect has been filed. 31] I am not inclined to interfere in the findings given by the learned Member of M.A.C.T. on the point of non-applicability of the provisions of Section 163-A of M.V. Act to the present claim. I conquer with him. It is not clear whether the claimants have argued before the learned Member of M.A.C.T. about invocation of personal accident cover or it was argued but not answered by the learned Member of M.A.C.T. Already, the parties have adduced the evidence and they were aware about the contents of the contract. The terms have been reduced in the certificate of insurance. (Though the details of compensation vis-a-vis injuries does not find place in -18- F.A. 378.2020 Exh.37). 32] It is undisputed fact that Rs.100/- was paid towards the premium compulsory personal accident to owner-cum-driver and maximum liability is quantified to Rs.2,00,000/-. I think the appellants are entitled to get Rs.2,00,000/- from the Insurance Company. So, I am inclined to allow the appeal. The appellants are also entitled to get interest @ 6% on this amount from the date of filing of the petition till recovery. Hence, I pass the following order:- ORDER i. The appeal is allowed. ii. The judgment dated 6th February, 2020 delivered in Special Claim Petition No.6/2015 is set aside (only to the extent of not granting compensation under personal accident cover). iii. The claim petition is allowed. iv. The respondent - Insurance Company is directed to pay Rs.2,00,000/- (rupees two lakhs only) to the appellants towards the compensation on account of death of Vijay Khandar along with the interest @ 6% from the date of filing of petition till realization. v. On depositing the amount, the M.A.C.T. is directed to -19- F.A. 378.2020 distribute it as follows:- a) An amount of Rs.25,000/- (rupees twenty five thousand only) be paid to appellant No.4 - Smt. Indubai Khandar. b) An amount of Rs.25,000/- (rupees twenty five thousand only) be kept in fixed deposit with any Nationalized Bank in the name of appellant No.3 - Sagar Vijay Khandar till the time he attains the majority. c) An amount of Rs.1,00,000/- (rupees one lakh only) be paid to appellant No.1 - Smt. Mangala Khandar. d) An amount of Rs.50,000/- (rupees fifty thousand only) be paid to appellant No.2 - Ku. Pallavi Khandar (who must have attained the majority up till now). e) The amount of interest be paid to appellant No.1 - Smt. Managala Khandar only. f) The cost of the main petition and this appeal be paid to the appellants by the respondent. g) The amount to be deposited within 15 days with M.A.C.T., Nagpur. vi. Decree be drawn up. vii. Record and proceedings be sent back. -20- F.A. 378.2020 Civil Application (CAF) No.1123/2020 In view of the disposal of the first appeal, this application praying for dispense with typed copy of handwritten Document/Annexure Nos.6 to 16 and 20 does not survive. It is disposed of accordingly. JUDGE vijay


JUDGMENT J.P. Devadhar, J. 1. This petition was originally filed on 22nd February, 2002 challenging the Circular dated 3rd September, 2001 issued by the Director General of Foreign Trade (DGFT) directing the Licensing Authorities not to issue any duty free advance licence for import of nature rubber until further orders. The petitioner had also challenged the inaction on the part of the State Trading Corporation of India Ltd. (S.T.C.) in refusing to import natural rubber under the advance licence, granted to the petitioner on 8-10-2001. During the pendency of this writ petition, show cause notice dated 29-4-2002 was issued for cancellation of advance licence granted to the petitioner on 8th October, 2001. A public notice dated 20th May, 2002 was also issued by DGFT to amend the Hand Book of procedures for 2002-2007 so as to prohibit duty free import of natural rubber. The petitioner was allowed to amend the petition so as to challenge the validity of the aforesaid show cause notice dated 29th April, 2002 and also challenge the validity of the public notice dated 20th May, 2002. 2. The short question that arises for our consideration in this petition is when the statutory provisions of the import policy specifically permits import of natural rubber duty free under an advance licence, is it open to the implementing agency, namely the DGFT to prohibit/ban import of natural rubber under an advance licence ? 3. Before dealing with the facts of the case, it is necessary to set out the relevant policy provisions. 4. Section 5 of the Foreign Trade (Development and Regulation) Act, 1995 ('Act' for short) empowers the Central Government to announce the export-import policy (EXIM Policy) and also amend that Policy form time to time. Section 6 of the Act empowers the Central Government to appoint any person as DGFT to advice the Government in the formulation of the policy, to carry out the policy and to exercise such powers as is conferred upon him by the Central Government in implementing the EXIM policy. However, Section 6(3) of the said Act provides that the power to amend the policy cannot be delegated to the DGFT and it is the prerogative of the Central Government only, to amend the policy. Section 7 of the said Act provides that no person shall make any import or export except under the importer and exporter code number granted by DGFT or any other officer authorised by him in accordance with the procedure specified in that behalf by the DGFT. 5. In exercise of its powers under Section 5 of the said Act, the Central Government has been announcing and publishing EXIM Policy from time to time and for the period 2002-2007, the EXIM Policy announced by the Central Government came into.force with effect from 1-4-2002 and is valid upto 31-3-2007. The said EXIM policy clearly provides that the right to amend the policy by a notification in the Gazette is vested in the Central Government only. Chapter 2 of the EXIM policy 2002-2007 contains general provisions regarding imports and exports. Para 2.1 of Chapter 2 provides that exports and imports shall be free except in cases where they are regulated by the provisions of the policy. Para 2.4 of Chapter 2 empowers DGFT to specify the procedure to be followed by an exporter or importer or by any licensing authority in implementing the policy and that, such procedure prescribed by the DGFT shall be included in the Hand Book and published by means of a public notice. Under the said para, DGFT is empowered to amend the procedure and publish the same by way of public notice. 6. Chapter 4 of the EXIM policy 2002-2007 provides for grant of advance licence under which duty free import of inputs to be used in the export product ate permitted. Para 4.1.5 of the Chapter 4 provides that the advance licence shall be issued in accordance with the EXIM Policy and the procedure in force on the date of the issue of licence. The procedure for import/export of the items under the policy are contained in the compilation of Hand Book of procedure notified by DGFT in pursuance of the provisions of para 2.4 of the policy. 7. It is not in dispute that under the EXIM policy 2002-2007 as well as earlier EXIM policy for the period 1997-2002 published by the Central Government, the natural rubber could be imported freely in India, either on payment of duty or duty free under an advance licence, as an in put for the export product. 8. Now, turning to the facts of the case, the petitioner who manufactures rubber gaskets and exports the same, was entitled to import natural rubber as an input for using it in the manufacture of the final product namely rubber gasket. The Licensing Authority in accordance with the prevalent EXIM policy had issued an advance licence on 8-10-2001, thereby permitting the petitioner to import 14,230 Kgs. of natural rubber duty free as it was to be used in the manufacture of rubber gaskets (rings) and then exported. Since the imports were to be effected through the S.T.C. (respondent No. 5), the petitioner approached the S.T.C. who by their letter dated 19th December, 2001 (Exhibit-C to the petition) stated that the permissibility of duty free import of natural rubber under the advance licence, is under consideration of the Ministry of Commerce and only on clearance from the said Ministry, the imports can be effected under the advance licence granted to the petitioner. In the meantime, DGFT had issued various circulars, including the circular dated 3-9-2001 (Exhibit-H to the petition) directing all the Licensing Authorities not to issue any advance licence until, further orders. Challenging these actions, as well as the subsequent action of the Jt. DGFT in purporting to cancel the advance licence issued to the petitioner as well as the amendment sought to be made to the Hand book of procedures by the public notice dated 20th May, 2002, the present petition has been filed. 9. Mr. Bharucha, learned Counsel for the petitioner submitted that when the statutory provisions contained in the EXIM policy published under Section 5 of the Act permit import of duty free natural rubber under an advance licence, it is not, open to the implementing agency namely DGFT to lay down procedures contrary to the policy and prohibit import of natural rubber under an advance licence. It was submitted that if for any reason the Central Government thought it fit that in public interest it is necessary to prohibit the duty free import of natural rubber under an advance licence, then it is open to the Central Government to amend the policy to that effect. But in the absence of any amendment to the policy, it is not open to the DGFT to issue public notice to prohibit duty free import of natural rubber under an advance licence. Therefore, the impugned circulars and the public notice issued by the DGFT being in contravention of the policy are liable to be quashed and set aside. It was submitted that once the circulars issued by the DGFT seeking to prohibit the import of duty free natural rubber are quashed, then the show cause notice issued to the petitioner to cancel the advance licence based on the aforesaid circular, is also liable to be quashed, it was submitted that the public notice dated 20th May, 2002 (Exhibit H-6), which purports to amend the Hand Book of procedure by prohibiting import of duty free natural rubber under advance licence is without Jurisdiction, being in contravention of the EXIM policy and hence liable to be quashed and set aside. An alternative submission was made that the procedural amendment effected by public notice dated 20-5-2002 does not have retrospective effect and, therefore, cannot affect import permitted under the advance licence issued to the petitioner on 8-10-2001. 10. Mr. Rana, learned Counsel appearing on behalf of the Revenue, on the other hand submitted that the imports of natural rubber, permitted under the policy is not rendered nugatory by the circulars issued by the DGFT and the amendments effected to the Hand Book of procedures. It was submitted that even after the impugned circulars and amendment to the Hand Book of procedures, the natural rubber can be imported as per the EXIM Policy. It was submitted that it was open to the petitioner to import natural rubber on payment of duty and if the same are used as input in the export products, then on export, of the said goods, the petitioner is entitled to duty drawback and, therefore, the petitioner is not in any way prejudiced by the circulars issued by DGFT it was submitted that over the years there has been considerable decline in the price of natural rubber as a result, the domestic market, which is dominated by the small growers has been badly effected. Under the circumstances, the Government in the past had stepped in with a view to support domestic market and took measures in banning imports of natural rubber against the advance licence with effect from 20th February, 1999 and also took regulatory measures by permitting quantitative import of natural rubber through S.T.C., etc. However, with the lifting of quantitative restrictions with effect from 1-4-2001 under the new policy of the Government, the import of natural rubber have become free. This has led to surge in the imports of natural rubber, which has further depressed the prices of natural rubber in the domestic markets, which in turn has affected the domestic industry. It was submitted that in these circumstances, A.L.C. circulars were issued by the DGFT to defer the issuance of duty free advance licence as the matter was under the active consideration of the Ministry of Commerce. It was submitted that since the advance licence dated 8-10-2001 was issued to the petitioner erroneously and in violation of the A.L.C. circular, the show cause notice dated 29th April, 2002 was issued calling upon the petitioner to show cause as to why the advance licence erroneously issued should not be cancelled. It was submitted that the DGFT is empowered under the policy to amend the Hand Book of procedure and in view of the amendment effected to the Hand Book of procedure by the public notice dated 20th May, 2002, the petitioner cannot import the natural rubber duty free under the advance licence, but is entitled to import on the same payment of duty and it utilised in the manufacture of export product, then on export can claim duty drawback. Accordingly, it was submitted that the petitioner is not entitled to any relief in the present petition. 11. After hearing Counsel on both sides and after perusing the records placed before us, we are of the opinion that the A.L.C. circulars and the public notice dated 20th May, 2002 issued by the DGFT, cannot be sustained as they are wholly inconsistent with the EXIM policy framed by the Central Government and in fact they purport to amend the EXIM Policy provisions which power is exclusively vested in the Central Government and not with the DGFT. It is pertinent to note that the EXIM policy announced by the Central Government in exercise of the powers vested in it under Section 5 of the said Act has statutory force. It is not in dispute that under the EXIM policy prevalent in 1997-2002 as well as 2002-2007, natural rubber could be imported duty free under an advance licence (except for the period when the Central Government had banned import of natural rubber under an advance licence). Under these circumstances, the implementing agency namely, the DGFT who is empowered to prescribe the norms and the procedures for implementing the EXIM policy could not prohibit import of natural rubber under advance licence, when the EXIM policy specifically permits import of natural rubber under an advance licence. The impugned Circulars and the public notice issued by DGFT, in fact, nullify the express provisions of the EXIM Policy framed by the Central Government. Power to amend the policy being within the exclusive domain of the Central Government the said powers cannot be usurped by the DGFT in the guise of laying down regularly measures. By prohibiting import of natural rubber under the advance licence in the Hand Book of procedures, the DGFT has encroached upon the powers of the Central Government and purported to amend the EXIM policy 2002-2007 which power is not conferred upon the DGFT. As stated hereinabove Section 6(3) of the Act expressly prohibits the DGFT from exercising the power of amending the EXIM Policy. Therefore, in the absence of any power under the statute, the A.L.C. circulars and the public notice dated 20th May, 2002 to prohibit import of natural rubber under Advance licence could not be issued by the DGFT. The said circulars and public notice being wholly contrary to the police provisions of the Central Government, cannot be sustained and are liable to be quashed and set aside. 12. The arguments of the revenue that the prohibition of duty free import of natural rubber under advance licence does not affect the right of the petitioner to import natural rubber without the advance licence, is without any merits because, the petitioner, as an exporter has every right under the policy to import inputs such as natural rubber duty free under the advance licence for use in the export product and in the absence of any amendment to the policy, that right of the petitioner cannot be taken away on the pretext of laying down the norms or the procedure in implementing the EXIM Policy. The Hand Book of procedures prescribed by the DGFT must be in consonance with the policy and must aid and advance the policy of the Central Government and not scuttle or defeat the policy. In the instant case, the Hand Book of procedure has been amended by the DGFT to prohibit duty free import of natural rubber under the advance licence when the EXIM Policy expressly permits duty free import of natural rubber under an advance licence. Therefore, the impugned circulars and the public notice are beyond the scope and ambit of the powers vested in DGFT and, therefore, liable to be quashed and set aside. 13. From the affidavit-in-reply filed by Shri Sanjay Lunia, Jt. Director, DGFT on behalf of the revenue, it is seen that in the past whenever deemed fit the Central Government had intervened and in fact prohibited import of natural rubber against advance licence with effect from 20th February, 1999 and even regulated import of natural rubber on quantitative basis through S.T.C. However, with effect from 1st April, 2001, the Central Government lifted the restrictions imposed by it thus making imports/ exports of natural rubber, totally free. From the said affidavit filed on behalf of the Revenue, it is further seen that in view of heavy import of natural rubber during the period in 2001-2002, the Central Government, especially the Ministry of Commerce, took up the issue of grant of duty free advance licence for reconsideration and in the meantime, DGFT issued A.L.C. circulars to withhold the issuance of advance licence pending the final decision by the Ministry of Commerce. Thereafter, on 1st April, 2002 the Central Government announced the EXIM policy 2002-2007 wherein after considering the issue, the Central Government, decided to permit duty free imports of natural rubber under an advance licence. Thus when the Central Government in exercise of its statutory power and on reconsideration of the matter has taken a policy decision to permit duty free import of natural rubber under advance licence as late as on 2-4-2002, it is not open to the implementing agency namely the DGFT to prohibit duty free import of natural rubber under advance licence by issuing circulars or by amending the Hand Book of procedure. Thus, the action on the part of the DGFT in purporting to prohibit duty free import of natural rubber is totally in breach of the policy decision taken by the Central Government and, therefore, the circulars and the public notice issued by the DGFT to prohibit the import of natural Rubber under advance licence must be held to be null and void, without jurisdiction and liable to be quashed and set aside. 14. The Apex Court in the case of University of Kashmir and Ors, v. Mohammad Yasin and Ors., has laid down the following proposition of law :-- "When a statute creates a body and vests it with authority and circumscribes its powers by specifying limitations, the doctrine of implied engagement de hors the provisions and powers under the Act would be subversive of the statutory scheme regarding appointments of officers and cannot be countenanced by the Court. Power in this case has been vested in the University Council only and the manner of its exercise has been carefully regulated. Therefore, the appointment of the . respondent could be made only by the Council and only in the mode prescribed by the statute." Respectfully following the aforesaid ratio of the Apex Court, we hold that the impugned circulars and the public notice amending the Hand Book of Procedures in fact, amount to amend the policy by an authority other than the Central Government which is not permissible in law. Hence the impugned circulars and the public notice issued by the DGFT being without authority of law, are liable to be quashed and set aside. 15. The procedures to be prescribed by an authority in implementing the policy must be in consonance with the policy. If the procedural norms are in conflict with the policy, then the policy will prevail and the procedural norms to the extent they are in conflict with the policy, are liable to be held to be bad in law. In the instant case, since the impugned circulars and the public notice issued by DGFT are in conflict with the policy, the same are liable to be quashed and set aside. 16. In the premise aforesaid, the petition succeeds. The A.L.C. circulars including circular dated 3rd September (Exhibit-H) and the public notice dated 20th May, 2002 (Exhibit-H-6) purporting to prohibit duty free import of natural rubber under advance licence are quashed and set aside. Consequently, the show cause notice dated 29-4-2002 (Exhibit-H-1) issued in the light of circulars of DGFT is also quashed and set aside. Rule is made absolute in the above terms. However, in the facts and circumstances of the case, there will be no order as to costs.


PETITIONER: RANJIT THAKUR Vs. RESPONDENT: UNION OF INDIA AND ORS. DATE OF JUDGMENT15/10/1987 BENCH: VENKATACHALLIAH, M.N. (J) BENCH: VENKATACHALLIAH, M.N. (J) SEN, A.P. (J) CITATION: 1987 AIR 2386 1988 SCR (1) 512 1987 SCC (4) 611 JT 1987 (4) 93 1987 SCALE (2)773 CITATOR INFO : R 1988 SC1099 (6) D 1991 SC1617 (10,26,33,34) R 1992 SC 188 (5) R 1992 SC 417 (5) ACT: Army Act, 1950/Army Rules, 1954: Sections 41 and 130/Rules 106-133-Court Martial-When proceedings vitiated- Participation of officer who has punished accused-Whether amounts to bias-Soldier-Refusing to eat food-Whether amounts to disobedience of lawful command. Constitution of India, 1950: Articles 32, 136 and 226- Judicial Review-Irrationality and perversity-Extentof. Administrative Law: Natural Justice-Fair Trial-Judgment only after due observance of Judicial Process-Quantum of punishment disproportionate to offence Whether conclusive evidence of bias. Interpretation of Statutes: Procedural safeguards- Statutory Provisions-How to be construed. HEADNOTE: % The appellant, a Signal Man in a Signal Regiment of the Armed Services, while serving out a sentence of 28 days' rigorous imprisonment imposed on him by the Commanding officer of the Regiment respondent No. 4, for violating norms for presenting representations to higher officers, was alleged to have committed another offence by refusing to eat his food on March 29, 1985 when ordered to do so. He was charged under section 41(2) of the Army Act, 1950 for disobeying a lawful command given by his superior officer. A sentence of rigorous imprisonment for one year was imposed by a Summary Court Martial consisting of respondent No. 4 and others. He was removed to the civil prison and he served out the sentence. The appellant's representation to the confirming authority under section 164 of the Act was rejected by the General officer Commanding on May 24,1985. The appellant's writ petition challenging proceedings of the Summary Court-Martial was dismissed in limine by the High Court. 513 In the appeal by special leave, it was contended on behalf of the appellant that the proceedings of the Court- Martial were vitiated (i) by a non-affording of an opportunity to challenge the constitution of the Summary Court-Martial under section 130(1); (ii) by bias on the part of the respondent No. 4 who participated in and dominated the proceedings; (iii) by awarding a punishment so disproportionate to the offence as to amount in itself to conclusive evidence of bias and vindictiveness; and (iv) by ignoring that as the appellant was then serving-out an earlier sentence he could not be need to be in active- service so as to be amenable to disciplinary jurisdiction and that the appellant's refusal, while already serving a sentence, to accept food did not amount to disobedience under section 41, of any lawful command of a Superior officer. Allowing the appeal, ^ HELD: 1.1 The Indian Army Act, 1950 constitutes a special law in force conferring a special jurisdiction on. the Court-Martial prescribing a special procedure for the trial of the offences under the Act. The Act and Rules constitute a self-contained Code specifying offences and the procedure for detention, custody and trial of the offenders by the Court-Martial. [518G-H; 519A] 1.2 The procedural safeguards contemplated in the Act must be considered in the context of and corresponding to the plenitude of the Summary jurisdiction of the Court- Martial and the severity of the consequences that visit the person subject to that jurisdiction. The procedural safeguards should be commensurate with the sweep of the powers. The wider the power, the greater the need for the restraint in its exercise ad correspondingly, more liberal the construction of the procedural safeguards envisaged by the Statute. [519B-C I 1.3 Non-compliance with the mandate of section 130 is an infirmity which goes to the root of jurisdiction and without more, vitiates the proceedings. [519F] Prithvi Pal Singh v. Union of India, AIR 1982 SC 1413 relied on. Vitarelli v. Seaton, 359 U.S. 535 referred to. 514 2.1 It is the essence of a judgment that it is made after due observance of the judicial process; that the Court or Tribunal passing it observes, at least the minimal requirements of natural justice, is composed of impartial persons. acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a nullity and the trial 'coram non judice'. [520D-E] Vassiliades v. Vassiliades, AIR 1945 PC 38 referred to. 2.2 As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the Judge is not to look at his own mind and ask himself, however, honestly, "Am I biased"? but to look at the mind of the party before him. [520F] Allinson v. General Council of Medical Education and Registration, [1894] 1 Q.B. 750 at 758; Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon, [1969] 1. Q.B. 577 d 599; Public Utilities Commission of the District of Columbia v. Pollack, 343 US 451 at 466 and Regina v. Liverpool City Justices, Ex-parte Topping, [1983] 1 WLR 119 referred to. Having regard to the antecedent events, the participation of respondent No. 4 in the Courts-Martial rendered the proceedings Coram non judice. [522B] 3. The mere circumstance'that the appellant was at the relevant point of time, serving a sentence of imprisonment and could not, therefore, be said to be in 'active service' does not detract from the fact that he was still a person subject to the Act, as is clear from the second clause of section 41(2) which refers to offences committed when not in 'active service', the difference being in the lesser punishment contemplated. [522C-D] 4. Every aspect of life of a soldier is regulated by discipline. Rejection of food might, under circumstances, amount to an indirect expression of remonstrance and resentment against the higher authority. To say that a mere refusal to eat food is an innocent, neutral act might be an over simplification of the matter. Mere in-action need not always necessarily be neutral. Serious acts of calumny could be done in silence. A disregard of a direction to accept food might assume the 515 complexion of disrespect to, and even defiance of authority. But an unduly harsh and cruel reaction to the expression of the injured feelings may he counter-productive and even by itself be subversive of discipline. [522E-F] In the instant case, appellant was perhaps expressing his anguish at, what he considered, an unjust and disproportionate punishment for airing his grievances before his superior officers. [522G] 5. Judicial review generally speaking, is not directed against a decision, but is directed against the "decision making process". The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. All powers have legal limits. [522G-H; 523A-C] Council of Civil Service Unions v. Minister for the Civil Service, [1984] 3 Weekly Law Reports 1174 HL and Bhagat Ram v. State of Himachal Pradesh, A.I.R. 1983 SC 454 referred to. In the instant case, the punishment is so strikingly disproportionate as to call for and justify interference. [523G] The Court order set aside. The writ petition in the High Court allowed, and the impugned proceedings of Summary Court-Martial and the consequent order and sentence quashed. Appellant entitled to be reinstated with all monetary and service benefits. [523H, 524A] (Note: on point 1.3 the finding is to be read with and subject to the subsequent order dated 10.8.88). JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2630 of 1987. From the Judgment and order dated 3.?.1986 of the Patna High Court in C.W.J.C. No. 2823 of 1986. R.N. Sinha, M.M. Prasad Sinha and P.C. Kapur for the Appellant. B. Datta, Additional Solicitor General, M.S. Rao, C. Ramesh and C.V.S. Rao for the Respondents. The Judgment of the Court was delivered by VENKATACHALIAH, J. This appeal, by special leave, preferred against the order dated July 3, 1986, of the Division Bench of the Patna High Court in C.W.J.C. No. 2823 of 1986 raises a substantial question as to the scope and content of the procedural safe-guards in Section 130 of the Indian Army Act, 1950 ('Act') in the conduct of the Courts- Martial. The High Court dismissed, in limine, the appellant's writ petition, under Article 226, challenging the proceedings dated March 30, 1985, of the Summary Court- Martial imposing the punishment of dismissal from service and a sentence of an year's rigorous imprisonment on the appellant. 2. Appellant, Ranjit Thakur, joined the Armed Services on September 7, 1972, and was, at the relevant time, a Signal Man in "4, Corps operating Signal Regiment." Apparently, appellant had not commended himself well to respondent No. 4, who was the commanding officer of the regiment. On March 29, 1985, appellant was already serving- out a sentence of 28 days' rigorous imprisonment imposed on him for violating the norms for presenting representations to higher officers. Appellant is stated to have sent representation complaining of ill-treatment at the hands of Respondent 4 directly to the higher officers. Appellant was punished for that by Respondent 4. Appellant was held in the Quarter-guard Cell in handcuffs to serve that sentence of rigorous imprisonment. 3. While so serving the sentence appellant is stated to have committed another offence on March 29, 1985, for which the punishment now impugned was handed down by Respondent 4. The nature of this offence had better be excerpted from the charge-sheet itself: "The accused No. 1429055 M Signalman Ranjit Thakur of 4 Corps operating Signal Regiment is charged with- Army Act Section 41(2) Disobeying a lawful command given by his superior officer Section 41(2) In that he at 15.30 hrs. On 29.5.1985 when ordered by JC 10625 lP Sub Ram Singh, the orderly officer of the same Regiment to eat his food, did not do so." To try this offence a Summary Court Martial was assembled the very next day i.e. March 30, 1985. Respondent 4 and 2 others were on the Court-Martial. Some witnesses were examined. Appellant is stated to have pleaded guilty. A sentence of rigorous imprisonment for one year was imposed, in pursuance of which appellant was removed immediately to the civil prison at Tejpur to serve out the sentence. Appellant has served out the sentence. He was also dismissed from service, with the added disqualification of being declared unfit for any future civil employment. The representation of the appellant to the confirming-authority under Section 164 of the Act was rejected by General of ficer Commanding on 24.5.1985. The High Court, however, persuaded itself to dismiss, in limine, appellant's writ petition challenging the proceedings of the Summary Court Martial. 4. We have heard learned counsel on both sides. The matter was adjourned on two earlier occasions on the submission of the learned Additional Solicitor General, that the question whether a lesser punishment was warranted was engaging the attention of the appropriate authorities. Apparently, nothing came out of it. F The submissions of Shri Sinha, in support of the appeal, admit of being formulated thus: (a) (i) The proceedings of the Court-Martial are vitiated by non-compliance with the mandate of Section 130(1) of the Act in that the Summary Court Martial did not afford to the appellant an opportunity to challenge its constitution as required by that section; (ii) The proceedings of the Court-Martial were vitiated by bias on the part of Respondent 4 who participated in and dominated the proceedings; H (b) In as much as the appellant was then serving a sentence of rigorous imprisonment, he was not in "active service" and that no question of disobeying any lawful command could at all arise; (c) Appellant's refusal, while serving a sentence to accept food did not amount to disobedience, under Section 41, of any lawful command of a superior officer in such manner as to show a wilful defiance of authority; (d) At all events, the punishment handed down is so disproportionate to the offence as to amount, in itself to conclusive evidence of bias and vindictiveness. 5. Re: contention (a): The records of the proceedings of the Special Summary Court Martial do not indicate that the procedural safeguard against bias contained in Section 130 of the Act was complied with. Section 130 provides: "130(1) At all trials by general district or summary general court-martial, as soon as the court is assembled, the names of the presiding officer and members shall be read over to the accused, who shall thereupon be asked whether he objects to being tried by any officer sitting on the court. (2)If the accused objects to any such officer, his objection, and also the reply thereto of the officer objected to, shall be heard and recorded, and the remaining officers of the Court shall, in the absence of the challenged officer decide on the objection." The proceedings do not indicate-this was not disputed at the hearing-that appellant was asked whether he objects to be tried by any officer, sitting at the Court-Martial. This, in our opinion, imparts a basic infirmity to the proceedings and militates against and detracts from the concept of a fair trial. The "Act" constitutes a special law in force conferring a special jurisdiction on the Court-Martial prescribing a special procedure for the trial of the offences under the 'Act'. Chapter VI of the 'Act' comprising of sections 34 to 68 specify and define the various offences under the 'Act'. Sections 7] to 89 of Chapter VII specify the various punishments. Rules 106 to 133 of the Army Rules 1954 prescribe the procedure of, and before, the Summary Court- Martial. The Act and A the Rules constitute a self contained Code, specifying offences and the procedure for detention, custody and trial of the offenders by the Courts-Martial. The procedural safe-guards contemplated in the Act must be considered in the context of and corresponding to the plenitude of the Summary jurisdiction of the Court-Martial and the severity of the consequences that visit the person subject to that jurisdiction. The procedural safe-guards should be commensurate with the sweep of the powers. The wider the power, the greater the need for the restraint in its exercise and correspondingly, more liberal the construction of the procedural safeguards envisaged by the Statute. The oft-quoted words of Frankfurter, J. in Vitarelli v. Seaton, 359 U.S.535 are again worth re-calling; "... if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed .............................................. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword. E "The history of liberty" said the same learned Judge "has largely been the history of observance of procedural safeguards." (318 US 332). We are afraid, the non-compliance of the mandate of section 130 is an infirmity which goes to the root of the jurisdiction and without more, vitiates the proceedings. lndeed it has been so held by this Court in Prithvi Pal Singh v. Union of India, AIR 1982 SC 1413 where Desai, J referring to the purpose of section 130 observed: "...... .Whenever an objection is taken it has to be recorded. In order to ensure that anyone objected to does not participate in disposing of the objection ......... ........ This is a mandatory requirement because the officer objected to cannot participate in the decision disposing of the objection. H ....... The provision conferring a right on the accused to object to a member of the Court-Martial sitting as a member and participating in the trial ensures that a charge of bias can be made and investigated against individual members composing the Court-Martial. This is pre eminently a rational provision which goes a long way to ensure a fair trial." What emerges, therefore, is that in the present case there is a non-compliance with the mandate of section 130 with the attendant consequence that the proceedings of the Summary Court-Martial are rendered infirm in law. This disposes of the first limb of the contention (a). 6. The second limb of the contention is as to the effect of the alleged bias on the part of respondent 4. The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely and is whether respondent 4 was likely to be disposed to decide the matter only in a particular way. It is the essence of a judgment that it is made after due observance of the judicial process; that the Court or Tribunal passing it observes, at least the minimal requirements of natural justice, is composed of impartial persons acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a nullity and the trial "coram non-judice". (See Vassiliadas v. Vassiliades-AIR 1945 PC 38). 7. As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the judge is not to look at his own mind and ask himself, however, honestly. "Am I biased? "but to look at the mind of the party before him. Lord Esher in Allinson v. General Council of Medical Education and Registration, l 1894] 1 Q.B. 750 at 758 said: "The question is not, whether in fact he was or was not biased. The Court cannot inquire into that .......... ............. In the administration of justice, whether by a recognised legal court or by persons who, although not a legal public court, are acting in a similar capacity, public policy requires that, in order that there should be no doubt about the purity of the administration any person who is to A take part in it should not be in such a position that he might be suspected of being biased." In Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon, [1969] 1 Q.B. 577, at 599, Lord Denning M.R. Observed: B ". .. in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be never- theless if right minded persons would think that in the circumstances there was a real likelihood of bias on his part, then he should not sit ....... ". D Frankfurter J in Public Utilities Commission of the District of Columbia v. Pollack (343 US 451 at 466) said: "The judicial process demands that a judge move within the frame work of relevant legal rules and the court covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it. It does. The fact is that on the whole judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self-discipline and that fortunate alchemy by which men are loyal to the obligation with which they are interested. But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such unconscious feelings may operate in the ultimate judgment or may not unfairly lead others to believe they are operating, judges refuse themselves. They do not sit in judgment .. ". Referring to the proper test, Ackner LJ in Regina v. Liverpool City Justices, Ex-parte Topping [1983] I WLR 119 said: H "Assuming therefore, that the justices had applied the test advised by Mr. Pearson-Do I feel prejudiced? then they would have applied the wrong test, exercised their discretion on the wrong principle and the same result, namely, the quashing of the conviction would follow." Thus tested the conclusion becomes inescapable that, having regard to the antecedent events, the participation of Respondent 4 in the Courts-Martial rendered the proceedings coram non-judice. 7. Re: contention (b): The mere circumstance that the appellant was, at the relevant point of time, serving a sentence of imprisonment and could not therefore, be said to be in 'active service' does not detract from the fact that he was still "a person subject to this Act." This is clear from the second clause of Section 41(2) which refers to offences committed when not in 'active service'. The difference is in the lesser punishment contemplated. We are, therefore, unable to appreciate the appositeness of this contention of Shri Sinha. 8. Re: contention (c): The submission that a disregard of an order to eat food does not by itself amount to a disobedience to a lawful command for purposes of section 41 has to be examined in the context of the imperatives of the high and rigorous discipline to be maintained in the Armed Forces. Every aspect of life of a soldier is regulated by discipline. Rejection of food might, under circumstances, amount to an indirect expression of remonstrance and resentment against the higher authority. To say that, a mere refusal to eat food is an innocent, neutral act might be an over-simplification of the matter. Mere in-action need not always necessarily be neutral. Serious acts of calumny could be done in silence. A disregard of a direction to accept food might assume the complexion of disrespect to, and even defiance of authority. But an unduly harsh and cruel reaction to the expression of the injured feelings may be counter-productive and even by itself be subversive of discipline. Appellant was perhaps expressing his anguish at, what he considered, an unjust and disproportionate punishment for airing his grievances before his superior officers. However, it is not necessary in this case to decide contention (c) in view of our finding on the other contentions. 9. Re: contention (d): Judicial review generally speaking, is not directed against a decision, but is directed against the "decision making process". The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. It should not be A vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court- Martial, if the decision of the Court even as to sentence is an outrageous defiance of B logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. In Council of Civil Service Unions v. Minister for the Civil Service, [1984] 3 Weekly Law Reports 1174 (HL) Lord Deplock said: "... Judicial Review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground l would call 'illegality'. the second irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community ............................ E In BhagatRam v. State of Himachal Pradesh, A.I.R. 1983 SC 454 this Court held: "It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution. The point to note, and emphasise is that all powers have legal limits. In the present case the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review. 10. In the result, for the foregoing reasons, the appeal is allowed, the order of the High Court set aside, the writ petition preferred in the High Court allowed and the impugned proceedings of the Summary Court-Martial dated March 30, 1985, and the consequent order and sentence are quashed. The appellant is entitled to and shall be reinstated with all monetary and service benefits. There will, however, be no order as to costs. N.P.V. Appeal allowed.


IN THE SUPREME COURT OF INDIA INHERENT JURISDICTION REVIEW PETITION (CIVIL) NO.……………/2021 (Diary No. 45777/2018) IN WRIT PETITION (CIVIL) NO. 494 OF 2012 Beghar Foundation through its Secretary and Anr. Petitioner(s) versus Justice K.S. Puttaswamy (Retd.) and Ors. Respondent(s) with REVIEW PETITION (CIVIL) NO. 3948 OF 2018 IN WRIT PETITION (CIVIL) NO. 231 OF 2016 Jairam Ramesh Petitioner(s) versus Union of India and Ors. Respondent(s) with REVIEW PETITION (CIVIL) NO. 22 OF 2019 IN Signature Not Verified Digitally signed by DEEPAK SINGH Date: 2021.01.20 11:30:21 IST Reason: WRIT PETITION (CIVIL) NO. 1014 OF 2017 1 M.G. Devasahayam Petitioner(s) versus Union of India and Anr. Respondent(s) with REVIEW PETITION (CIVIL) NO. 31 OF 2019 IN WRIT PETITION (CIVIL) NO. 1058 OF 2017 Mathew Thomas Petitioner(s) versus Union of India and Ors. Respondent(s) with REVIEW PETITION (CIVIL) NO.……………/2021 (Diary No. 48326/2018) IN WRIT PETITION (CIVIL) NO. 494 OF 2012 Imtiyaz Ali Palsaniya Petitioner(s) versus Union of India and Ors. Respondent(s) with REVIEW PETITION (CIVIL) NO. 377 OF 2019 IN WRIT PETITION (CIVIL) NO. 342 OF 2017 2 Shantha Sinha and Anr. Petitioner(s) versus Union of India and Anr. Respondent(s) with REVIEW PETITION (CIVIL) NO. 924 OF 2019 IN WRIT PETITION (CIVIL) NO. 829 OF 2013 S.G. Vombatkere and Anr. Petitioner(s) versus Union of India and Ors. Respondent(s) ORDER Permission to file Review Petition(s) is granted. Delay condoned. Prayer for open Court/personal hearing of Review Petition(s) is rejected. The present review petitions have been filed against the final judgment and order dated 26.09.2018. We have perused the review petitions as well as the grounds in support thereof. In our opinion, no case for review of judgment and order dated 26.09.2018 is made out. We hasten to add that change in the law or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review. The review petitions are accordingly dismissed. Consequently, prayer for urging additional grounds in Review Petition (Civil) No. 22/2019 stands rejected. ………….…...................J. (A.M. Khanwilkar) ………….…...................J. (Ashok Bhushan) ………….…...................J. (S. Abdul Nazeer) ………….…...................J. (B. R. Gavai) New Delhi; January 11, 2021. Reportable IN THE SUPREME COURT OF INDIA CIVIL INHERENT/ APPELLATE JURISDICTION Review Petition (Civil) Diary No. 45777 of 2018 Beghar Foundation & Anr. .... Petitioners Versus Justice K.S. Puttaswamy (Retd.) & Ors. .... Respondents With Review Petition (Civil) No. 3948 of 2018 in Writ Petition (Civil) No. 231 of 2016 With Review Petition (Civil) No. 22 of 2019 in Writ Petition (Civil) No. 1014 of 2017 With Review Petition (Civil) No. 31 of 2019 in Writ Petition (Civil) No. 1058 of 2017 With Diary No. 48326 of 2018 With Review Petition (Civil) No. 377 of 2019 in Writ Petition (Civil) No. 342 of 2017 And With Review Petition (Civil) No. 924 of 2019 in Writ Petition (Civil) No. 829 of 2013 JUDGMENT Dr Dhananjaya Y Chandrachud, J 1 I regret my inability to agree with the decision of the majority in dismissing the present batch of review petitions. 2 This batch of petitions seeks a review of the decision of a Constitution Bench of this Court in Puttaswamy (Aadhaar-5J.) v Union of India1 [“Puttaswamy (Aadhar-5J.”]. Among the issues which arose for decision, the Court had to answer two critical questions: (i) whether the decision of the Speaker of the House of People2 under Article 110(3) of the Constitution, to certify a bill as a ‘Money Bill’ under Article 110(1) is final and binding, or can be subject to judicial review; and (ii) if the decision is subject to judicial review, whether the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (the “Aadhaar Act”) had been correctly certified as a ‘Money Bill’ under Article 110(1) of the Constitution. 3 On the first question, the majority (speaking through Dr Justice A.K. Sikri) stated that “[j]udicial review [of whether a Bill is a ‘Money Bill’] would be admissible under certain circumstances having regard to the law laid down by this Court”3. While answering the second question, the majority held that Section 7 of the Aadhaar Act had elements of a ‘Money Bill’, and the other provisions were incidental to the ‘core’ of the Aadhaar Act. Hence, the majority held that the Aadhaar Act had been correctly certified as a ‘Money Bill’ under Article 110(1). 1 (2019) 1 SCC 1 2 ‘House of People’ interchangeably referred as ‘Lok Sabha’ 3 Id at paras 455-464 4 In his concurring opinion, Justice Ashok Bhushan answered the first question by holding that the decision of the Speaker of the House of People under Article 110(1) could be subject to judicial review when it was in breach of a constitutional provision. Drawing a distinction between an irregularity of procedure and a substantive illegality, Justice Ashok Bhushan held: “901. There is a clear difference between the subject “irregularity of procedure” and “substantive illegality”. When a Bill does not fulfil the essential constitutional condition under Article 110(1), the said requirement cannot be said to be evaporated only on certification by Speaker. Accepting the submission that certification immunes the challenge on the ground of not fulfilling the constitutional condition, the Court will be permitting constitutional provisions to be ignored and bypassed. We, thus, are of the view that decision of the Speaker certifying the Bill as Money Bill is not only a matter of procedure and in the event, any illegality has occurred in the decision and the decision is clearly in breach of the constitutional provisions, the decision is subject to judicial review.” However, in answering the second question, Justice Bhushan’s concurring opinion agreed with the majority and held that the Aadhaar Act had been correctly certified by the Speaker of the House of People as a ‘Money Bill’ under Article 110(1). 5 The opinion authored by me, answered the first question by holding that: “1080. The obligation placed on the Speaker of the Lok Sabha to certify whether a Bill is a Money Bill is not a mere matter of “procedure” contemplated under Article 122. It is a constitutional requirement, which has to be fulfilled according to the norms set out in Article 110. Article 122 will not save the action of the Speaker, if it is contrary to constitutional norms provided under Article 110. The Court, in the exercise of its power of judicial review, can adjudicate upon the validity of the action of the Speaker if it causes constitutional infirmities. Article 122 does not envisage exemption from judicial review, if there has been a constitutional infirmity. The Constitution does not endorse a complete prohibition of judicial review under Article 122. It is only limited to an “irregularity of procedure”.” However, on the second question, my decision dissented with the majority and Justice Ashok Bhushan, and held that the decision of the Speaker of the House of People to certify the Aadhaar Act as a ‘Money Bill’ under Article 110(1) was unconstitutional. 6 The issue whether judicial review can be exercised over a decision of the Speaker of the House of People under Article 110(3), arose subsequently before another Constitution Bench in Rojer Mathew v South Indian Bank Ltd4 (“Rojer Mathew”) This was in the context of whether some of the provisions of the Finance Act, 2017 (relating to appointments to Tribunals and the conditions of service of members) could have been certified as a ‘Money Bill’ under Article 110. 7 The judgment delivered by the majority (speaking through Chief Justice Ranjan Gogoi) answered this question by referring to the judgment in Puttaswamy (Aadhaar-5J.) in the following terms: “102. A coordinate Bench of this Court in K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] , was tasked with a similar question of the certification of “Money Bill” accorded to the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 by the Speaker of Lok Sabha. The majority opinion after noting the important role of the Rajya Sabha in a bicameral legislative set-up, observed that Article 110 being an exceptional provision, must be interpreted narrowly. Although the majority opinion did not examine the correctness of the decisions in Mohd. Siddiqui [Mohd. Saeed Siddiqui v. State of U.P., (2014) 11 SCC 415] and Yogendra Kumar Jaiswal [Yogendra Kumar Jaiswal v. State of Bihar, (2016) 3 SCC 183 : (2016) 2 SCC (Cri) 1] or conclusively pronounce on the scope of jurisdiction or power 4 (2020) 6 SCC 1 of this Court to judicially review certification by the Speaker under Article 110(3), yet, it independently reached a conclusion that the impugned enactment fell within the four corners of Article 110(1) and hence was a “Money Bill”. The minority view rendered, however, explicitly overruled both Mohd. Siddiqui [Mohd. Saeed Siddiqui v. State of U.P., (2014) 11 SCC 415] and Yogendra Kumar Jaiswal [Yogendra Kumar Jaiswal v. State of Bihar, (2016) 3 SCC 183 : (2016) 2 SCC (Cri) 1] . 103. The majority opinion in Puttaswamy [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] by examining whether or not the impugned enactment was in fact a “Money Bill” under Article 110 without explicitly dealing with whether or not certification of the Speaker is subject to judicial review, has kept intact the power of judicial review under Article 110(3). It was further held therein that the expression “Money Bill” cannot be construed in a restrictive sense and that the wisdom of the Speaker of Lok Sabha in this regard must be valued, save where it is blatantly violative of the scheme of the Constitution. We respectfully endorse the view in Puttaswamy [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] and are in no doubt that Mohd. Siddiqui [Mohd. Saeed Siddiqui v. State of U.P., (2014) 11 SCC 415] and Yogendra Kumar Jaiswal [Yogendra Kumar Jaiswal v. State of Bihar, (2016) 3 SCC 183 : (2016) 2 SCC (Cri) 1] insofar as they put decisions of the Speaker under Article 110(3) beyond judicial review, cannot be relied upon.” (emphasis supplied) However, the majority opinion noted that the first question was not adequately answered in the above decision in Puttaswamy (Aadhaar-5J.). It also noted its doubts on the determination of the second question: “116. Upon an extensive examination of the matter, we notice that the majority in K.S. Puttaswamy (Aadhaar-5 J.) [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] pronounced the nature of the impugned enactment without first delineating the scope of Article 110(1) and principles for interpretation or the repercussions of such process. It is clear to us that the majority dictum in K.S. Puttaswamy (Aadhaar-5 J.) [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] did not substantially discuss the effect of the word “only” in Article 110(1) and offers little guidance on the repercussions of a finding when some of the provisions of an enactment passed as a “Money Bill” do not conform to Articles 110(1)(a) to (g). Its interpretation of the provisions of the Aadhaar Act was arguably liberal and the Court's satisfaction of the said provisions being incidental to Articles 110(1)(a) to (f), it has been argued, is not convincingly reasoned, as might not be in accord with the bicameral parliamentary system envisaged under our constitutional scheme. Without expressing a firm and final opinion, it has to be observed that the analysis in K.S. Puttaswamy (Aadhaar-5 J.) [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] makes its application difficult to the present case and raises a potential conflict between the judgments of coordinate Benches. 117. Given the various challenges made to the scope of judicial review and interpretative principles (or lack thereof), as adumbrated by the majority in K.S. Puttaswamy (Aadhaar- 5 J.) [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] and the substantial precedential impact of its analysis of the Aadhaar Act, 2016, it becomes essential to determine its correctness. Being a Bench of equal strength as that in K.S. Puttaswamy (Aadhaar-5 J.) [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] , we accordingly direct that this batch of matters be placed before the Hon'ble the Chief Justice of India, on the administrative side, for consideration by a larger Bench.” (emphasis supplied) As a consequence, the majority opinion held that “[t]he issue and question of Money Bill, as defined under Article 110(1) of the Constitution, and certification accorded by the Speaker of the Lok Sabha in respect of Part-XIV of the Finance Act, 2017 is referred to a larger Bench”5. 8 In his partly concurring and partly dissenting opinion, Justice Deepak Gupta agreed with the majority opinion in referring the first question of ‘Money Bill’ to a larger bench thus: 5 Supra at note 3, at para 223.1 “365. I am in total agreement with the Chief Justice inasmuch as he has held that the decision of the Hon'ble Speaker of the House of People under Article 110(3) of the Constitution is not beyond judicial review. I also agree with his views that keeping in view the high office of the Speaker, the scope of judicial review in such matters is extremely restricted. If two views are possible then there can be no manner of doubt that the view of the Speaker must prevail. Keeping in view the lack of clarity as to what constitutes a Money Bill, I agree with the Hon'ble Chief Justice that the issue as to whether Part XIV of the Finance Act, 2017, is a Money Bill or not may be referred to a larger Bench.” Similarly, another partly concurring and partly dissenting opinion, authored by me, held thus: “346. Though the present judgment [referring to the partly concurring and partly dissenting opinion] analyses the ambit of the word “only” in Article 110(1) and the interpretation of sub-clauses (a) to (g) of clause (1) of Article 110 and concludes that Part XIV of the Finance Act, 2017 could not have been validly enacted as a Money Bill, I am in agreement with the reasons which have been set out by the learned Chief Justice of India to refer the aspect of Money Bill to a larger Bench and direct accordingly.” 9 Consequently, the correctness of the judgment in Puttaswamy (Aadhaar- 5J.), in relation to what constitutes a ‘Money Bill’ under Article 110 of the Constitution, the extent of judicial review over a certification by the Speaker of the House of People and the interpretation which has been placed on the provisions of the Aadhaar Act while holding the enactment to be a ‘Money Bill’, are issues which will be resolved by a larger bench, which is yet to be constituted. 10 The present batch of review petitions, in challenging the correctness of the judgment in Puttaswamy (Aadhaar-5J.), assails the reasoning in the opinion of the majority on whether the Aadhaar Act was a ‘Money Bill’ under Article 110. The details of the review petitions, are summarised below: (i) Review Petition (Civil) Diary No. 45777 of 2018 – This petition was filed on 6 December 2018, and its sub-Ground (e) calls for a review of Puttaswamy (Aadhaar-5J.) in which the majority opinion upheld the certification of the Aadhaar Act as a ‘Money Bill’, which rests on the erroneous assumption that Section 7 of the Aadhaar Act is its core provision (Grounds XXIII-XXVII). (ii) Review Petition (Civil) No. 3948 of 2018 – This petition was filed on 23 October 2018, and seeks a review of Puttaswamy (Aadhaar-5J.) in relation to the majority opinion upholding the certification of the Aadhaar Act as a ‘Money Bill’ within the meaning of Article 110 (Grounds I-VII). (iii) Review Petition (Civil) No. 22 of 2019 – This petition was filed on 15 December 2018, and seeks a review of Puttaswamy (Aadhaar-5J.) in relation to the majority opinion upholding the certification of the Aadhaar Act as a ‘Money Bill’, and its consequence on the constitutionality of the enactment (Grounds I-VI). (iv) Review Petition (Civil) No. 31 of 2019 – This petition was filed on 21 December 2018, and seeks a review of Puttaswamy (Aadhaar-5J.) in relation to the majority opinion holding that the Aadhaar Act was correctly certified as a ‘Money Bill’ by the Speaker of the House of People by merely relying on Section 7 of the Aadhaar Act (Grounds GG-II). (v) Diary No. 48326 of 2018 – This petition was filed on 24 December 2018, and seeks a review of Puttaswamy (Aadhaar-5J.) in relation to the majority opinion upholding the Aadhaar Act’s certification as a ‘Money Bill’, which eliminated the possibility of discussion before the Rajya Sabha (Grounds V-W). (vi) Review Petition (Civil) No. 377 of 2019 – This petition was filed on 10 January 2019, and seeks a review of Puttaswamy (Aadhaar-5J.) in relation to the majority opinion holding that the Aadhaar Act could have been certified as a ‘Money Bill’ at the time of its introduction in the Lok Sabha (Ground A). (vii) Review Petition (Civil) No. 924 of 2019 – This petition was filed on 12 January 2019, and seeks a review of Puttaswamy (Aadhaar-5J.) in relation to the majority opinion upholding the Aadhaar Act’s certification as a ‘Money Bill’ in terms of Article 110(1) even though it contained provisions which affected the fundamental rights under Part III of the Constitution (Ground A). 11 The analysis of the majority opinion in Puttaswamy (Aadhaar-5J.) in relation to the second question, i.e., whether the Aadhaar Act was a ‘Money Bill’ under Article 110 has been doubted by a coordinate bench in Rojer Mathew, when the first question was referred to a larger bench. The larger bench has not been constituted, and is yet to make a determination. Dismissing the present batch of review petitions at this stage – a course of action adopted by the majority – would place a seal of finality on the issues in the present case, without the Court having the benefit of the larger bench’s consideration of the very issues which arise before us. The correctness of Puttaswamy (Aadhaar-5J.) on issues pertaining to, and arising from, the certification of a Bill as a ‘Money Bill’ by the Speaker of the House of People has been doubted by a co-ordinate Constitution Bench in Rojer Mathew. With the doubt expressed by another Constitution Bench on the correctness of the very decision which is the subject matter of these review petitions, it is a constitutional error to hold at this stage that no ground exists to review the judgment. The larger bench’s determination would have an undeniable impact on the validity of the reasons expressed in Puttaswamy (Aadhaar-5J.), on the constitutional issues pertaining to and arising out of the certification by the Speaker of the House of People. The failure to re- contextualize the decision of the larger bench with regard to the Aadhaar Act being a ‘Money Bill’ under Article 110(1) will render it a mere academic exercise. 12 It is important to draw a distinction with a situation where a judgment attains finality and the view propounded by it is disapproved by a larger bench subsequently. In the present case, the above-mentioned review petitions had all been filed before the judgment in Rojer Mathew was delivered on 13 November 2019. The review petitions were pending on the date when a reference was made to a larger bench in Rojer Mathew. These review petitions were previously listed before a five-judge bench headed by Justice Arun Mishra on 25 August 2020, and were not disposed of. Hence, these review petitions have continued to remain pending until now, and there is a strong reason for us not to dismiss them pending the decision of the larger bench, especially in light of the adverse consequences highlighted above. 13 In Kantaru Rajeevaru (Right to Religion, In re-9 J.) (2) v Indian Young Lawyers Assn.6, a nine-judge bench of this Court had to determine whether a reference could be made to a larger bench in a pending review petition. Answering this in the affirmative, the Court held that it need not admit the review petitions before referring the question to a larger bench. Further, the court noted that such a question could also be a pure question of law. In explaining the power of this Court to review its own judgments, Chief Justice S A Bobde, speaking for the Bench, held thus: “29. Order LV Rule 6 makes it crystal clear that the inherent power of this Court to make such orders as may be necessary for the ends of justice shall not be limited by the Rules. In S. Nagaraj v. State of Karnataka [S. Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595 : 1994 SCC (L&S) 320] , it was observed that even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its orders, the courts culled out such power to avoid abuse of process or miscarriage of justice. It was further held that this Court is not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for the sake of justice. The logical extension to the above is that reference of questions of law can be made in any pending proceeding before this Court, including the instant review proceedings, to meet the ends of justice.” 14 If these review petitions are to be dismissed and the larger bench reference in Rojer Mathew were to disagree with the analysis of the majority opinion in Puttaswamy (Aadhaar-5J.), it would have serious consequences – not just for judicial discipline, but also for the ends of justice. As such, the present batch of review petitions should be kept pending until the larger bench decides the questions referred to it in Rojer Mathew. In all humility, I conclude that the 6 (2020) 9 SCC 121 constitutional principles of consistency and the rule of law would require that a decision on the Review Petitions should await the reference to the Larger Bench. …….………….…………………...........................J. [Dr Dhananjaya Y Chandrachud] New Delhi; January 11, 2021. ITEM NO.1001 SECTION PIL-W S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS REVIEW PETITION (CIVIL) Diary No(s). 45777/2018 (Arising out of impugned final judgment and order dated 26-09-2018 in W.P.(C) No. No. 494/2012 passed by the Supreme Court Of India) BEGHAR FOUNDATION & ANR. Petitioner(s) VERSUS JUSTICE K.S.PUTTASWAMY(RETD) & ORS. Respondent(s) IA No. 11039/2019 - APPLICATION FOR PERMISSION TO FILE REVIEW PETITION IA No. 177563/2018 - CONDONATION OF DELAY IN FILING REVIEW PETITION IA No. 177567/2018 - EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT) WITH R.P.(C) No. 3948/2018 in W.P.(C) No. 231/2016 (PIL-W) (FOR FOR ORAL HEARING [permission to to be heard R.P. in open court] ON IA 182747/2018 IA No. 182747/2018 - ORAL HEARING) R.P.(C) No. 22/2019 in W.P.(C) No. 1014/2017 (PIL-W) (IA FOR EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT ON IA 182749/2018 FOR APPLICATION FOR LISTING REVIEW PETITION IN OPEN COURT ON IA 182750/2018 FOR CONDONATION OF DELAY IN FILING REVIEW PETITION ON IA 182751/2018 FOR PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES ON IA 182753/2018 IA No. 182750/2018 - APPLICATION FOR LISTING REVIEW PETITION IN OPEN COURT IA No. 182751/2018 - CONDONATION OF DELAY IN FILING REVIEW PETITION IA No. 182749/2018 - EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT IA No. 182753/2018 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES) R.P.(C) No. 31/2019 in W.P.(C) No. 1058/2017 (PIL-W) (FOR FOR ORAL HEARING ON IA 185123/2018 FOR CONDONATION OF DELAY IN FILING REVIEW PETITION ON IA 185125/2018 IA No. 185125/2018 - CONDONATION OF DELAY IN FILING REVIEW PETITION IA No. 185123/2018 - ORAL HEARING) Diary No(s). 48326/2018 (PIL-W) ( FOR APPLICATION FOR PERMISSION TO FILE REVIEW PETITION ON IA 186187/2018 FOR CONDONATION OF DELAY IN FILING ON IA 186188/2018 FOR APPLICATION FOR LISTING REVIEW PETITION IN OPEN COURT ON IA 186190/2018 IA No. 186190/2018 - APPLICATION FOR LISTING REVIEW PETITION IN OPEN COURT IA No. 186187/2018 - APPLICATION FOR PERMISSION TO FILE REVIEW PETITION IA No. 186188/2018 - CONDONATION OF DELAY IN FILING) R.P.(C) No. 377/2019 in W.P.(C) No. 342/2017 (PIL-W) (IA FOR PERSONAL HEARING BEFORE THE COURT ON IA 6225/2019 FOR EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT ON IA 6231/2019 IA No. 6231/2019 - EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT IA No. 6225/2019 - PERSONAL HEARING BEFORE THE COURT) R.P.(C) No. 924/2019 in W.P.(C) No. 829/2013 (PIL-W) (FOR FOR CONDONATION OF DELAY IN FILING REVIEW PETITION ON IA 7279/2019 FOR APPROPRIATE ORDERS/DIRECTIONS ON IA 7281/2019 IA No. 7281/2019 - APPROPRIATE ORDERS/DIRECTIONS IA No. 7279/2019 - CONDONATION OF DELAY IN FILING REVIEW PETITION) Date : 11-01-2021 These matters were called on for hearing today. CORAM : HON'BLE MR. JUSTICE A.M. KHANWILKAR HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE ASHOK BHUSHAN HON'BLE MR. JUSTICE S. ABDUL NAZEER HON'BLE MR. JUSTICE B.R. GAVAI By Circulation UPON perusing papers the Court made the following O R D E R Hon’ble Mr. Justice A.M. Khanwilkar (on behalf of himself, Hon’ble Mr. Justice Ashok Bhushan, Hon’ble Mr. Justice S. Abdul Nazeer and Hon’ble Mr. Justice B.R. Gavai) passed the order of the Bench comprising His Lordship, Hon’ble Dr. Justice Dhananjaya Y. Chandrachud, Hon’ble Mr. Justice Ashok Bhushan, Hon’ble Mr. Justice S. Abdul Nazeer and Hon’ble Mr. Justice B.R. Gavai. The operative portion of the order is as under: “The present review petitions have been filed against the final judgment and order dated 26.09.2018. We have perused the review petitions as well as the grounds in support thereof. In our opinion, no case for review of judgment and order dated 26.09.2018 is made out. We hasten to add that change in the law or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review. The review petitions are accordingly dismissed. Consequently, prayer for urging additional grounds in Review Petition (Civil) No. 22/2019 stands rejected.” Hon’ble Dr. Justice Dhananjaya Y. Chandrachud passed a separate dissenting judgment. The operative portion of the judgment is as under: “14. If these review petitions are to be dismissed and the larger bench reference in Rojer Mathew were to disagree with the analysis of the majority opinion in Puttaswamy (Aadhaar- 5J), it would have serious consequences – not just for judicial discipline, but also for the ends of justice. As such, the present batch of review petitions should be kept pending until the larger bench decides the questions referred to it in Rojer Mathew. In all humility, I conclude that the constitutional principles of consistency and the rule of law would require that a decision on the Review Petitions should await the reference to the Larger Bench.” Pending applications, if any, stand disposed of. (DEEPAK SINGH) (VIDYA NEGI) COURT MASTER (SH) COURT MASTER (NSH) [Signed order and reportable judgment are placed on the file]