2004 Supreme(SC) 532

2004(3) Supreme 445
SUPREME COURT OF INDIA
(From Patna High Court)
R.C. Lahoti & Ashok Bhan, JJ.
Tirupati Balaji Developers Pvt. Ltd. & Ors. -Petitioners
versus
State of Bihar & Ors. -Respondents
SLP (C) Nos. ..... of 2004 (CC Nos. 8071-8072 of 2002)
Decided on 21-4-2004
Counsel for the Parties :
For the Petitioners : P.S. Mishra, Sr. Advocate, Tathagat H. Vardhan, Amitabh C. Mishra, Dhruv Kumar Jha, C.D. Singh, Advocates.
For the Respondents : Sunil Roy, Manish Mohan, B.M. Prasad, Mrs. Anita Mohan, Ugra Shankar Pd., Advocates.

IMPORTANT POINT
The Supreme Court, exercising its appellate jurisdiction, is called upon to issue directions which is not only its privilege as appellate forum but often a necessity for meeting the demands of justice and effective exercise of appellate power. The very existence of appellate jurisdiction obliges the lower jurisdiction to render all of its assistance to the higher jurisdiction to enable the exercise of appellate jurisdiction fully and effectively.

Headnote:Constitution of India-Articles 136, 226, 227, 130-A, 141 and 144-Appeal-Extent and dimension of jurisdiction conferred on Supreme Court-Power to issue directions to High Courts-Public interest petition filed in High Court regarding drainage system, sewerage system, drinking water supply system etc. etc. in State of Bihar-High Court issuing orders in nature of continuing mandamus and has been monitoring compliance-Interim order passed by High Court directing that street alignment, reallocating of footpaths etc.-Restraint put of all construction work on entire stretch of public street-Local authorities were restrained from approving any map for construction within the said stretch of area-A few builders/developers engaged in construction activity affected adversely by the interim order filed a petition in the Supreme Court seeking special leave to appeal against High Court s order-They were not parties in proceedings before the High Court-Petitioners had already applied before the High Court for vacation of its interim order-However, no date has been fixed for hearing the stay vacate application of theirs-A three Judge Bench of the Supreme Court presided over by the Chief Justice of India called for a response from the High Court-Observations made by High Court-Whether justified-(No).

       Held : How the Supreme Court and the High Court have to deal with each other specially when the Supreme Court is exercising its appellate jurisdiction over a decision by, or proceedings - concluded or pending - in the High Court? The Constitution has clearly divided the jurisdiction between the two institutions and while doing so these institutions have to have mutual respect for each other. The framers of the Constitution did not think it necessary to specifically confer power on the Supreme Court to give a command to the High Court for they were the men of vision and foresight. They knew that all the constitutional functionaries and institutions would act in the best interest of norms and traditions consistent with democracy and constitutionalism, set down in and discernible from the Constitution and as handed down by history and generations of judges. Everyone would, it was expected, keep within its bounds and would not over-step its limits so that the ideals and the values remain a living reality and do not become either an intrusion or an illusion. The constitutional and democratic institutions, complementing and supplementing each other, would lend strength to these handed down traditions and would also contribute to developing such rich traditions as would be respected and hailed by posterity. This would result in strengthening the working of the Constitution. In the realms of constitutionalism the values of mutual trust and respect between the functionaries, nurtured by tradition, alleviate the need to codify the rules of the relationship. Experience shows that any rigid codification of such delicate relationship is advantageous to those bent upon vilification. A rigid written law makes it difficult to maintain that dignity which is better and rightly left to be perceived by right-minded people who zealously uphold the dignity of others as they do their own. (Para 18)

       The Supreme Court, exercising its appellate jurisdiction, is called upon to issue directions which is not only its privilege as appellate forum but often a necessity for meeting the demands of justice and effective exercise of appellate power. Yet, it cautiously abstains from issuing any directions as such and rather uses the alternative and polite expressions like - "we request the High Court", "the High Court is expected to", "we trust and hope that the High Court will/shall", spelled out by courtesy and the respect and regards which the Supreme Court has - and must have - for High Courts. The practice has developed and gained ground as tradition. Barring may be an instance or two, which too must have been avoidable, there has been no occasion either for any disrespect having been shown by the Supreme Court to the High Court or vice versa or for this Court having been called upon to take cognizance of any instance of disrespect shown to it by any High Court. (Para 24)

       The very existence of appellate jurisdiction obliges the lower jurisdiction to render all of its assistance to the higher jurisdiction to enable the exercise of appellate jurisdiction fully and effectively. The lower forum may be called upon to certify its record of case and proceedings to the superior forum. The superior forum may stand in need of some information which being in the possession or knowledge of the subordinate forum, shall have to be made available only by it. The superior forum may issue a stay order or restraint order or may suspend, expedite or regulate the proceedings in the subordinate forum. During or at the end of exercise of the appellate jurisdiction any direction made by the higher forum shall have to be complied with by the lower forum, otherwise the hierarchy becomes meaningless. (Para 30)

       After all, what was done by this Court? On 28.10.2002, this Court exercised self-control and refused to entertain the SLP forming an opinion as to why it should step in and why it should not leave it open to the High Court to freely exercise its constitutional jurisdiction and that too in public interest in the present case. However, the grievance raised by the then petitioners needed to be heard early; to form such opinion and issue a consequential direction undoubtedly were within the competence of this Court under Article 136 of the Constitution. Later on, the order dated 3.11.2003 came to be passed on the petition supported by an affidavit, stating the facts and mentioning the dates, giving rise to the occasion for filing the same, which was, if not a complaint, at least a grievance that the High Court had failed to comply with the order dated 28.10.2002 passed by this Court in exercise of its jurisdiction conferred by Article 136 of the Constitution. The Court felt that the order should have been complied with. The Court proceeded with the assumption that in ordinary course it would not be persuaded to think, much less believe, that the High Court was not complying with the order of this Court, if only the order has been brought to its notice. So, to ascertain the facts this Court called for a response. The Registrar General of this Court addressed a communication to the Registrar General of the High Court seeking information. The communication should have been dealt with on administrative side and responded to by the Registrar General of the High Court, just apprising this Court of the correct factual position. If there was no error, no default and nothing like non-compliance at the end of the High Court, an appraisal in that regard contained in a communication with brief necessary facts by the Registrar General of the High Court to the Registrar General of this Court, which the latter would have placed for the consideration of this Court on the judicial side, was enough. Such procedure is followed quite often and nobody has ever taken any exception to this practice barring the singular instance with which we are reluctantly dealing with. (Para 33)

       Be that as it may, we have to maintain the dignity of this august institution as the Apex Court of the country and undo a mistaken assumption of the High Court, that any order of this Court was intended to undermine the High Court s status as a constitutional court or Court of Record. Such an order of the High Court, which has done no good either to this Court or to the High Court itself, having been brought to our notice, we are constitutionally obliged not to blink our eyes but to act and so we do. We direct all those passages which have been extracted and reproduced in the earlier part of the judgment, from the order dated 3.12.2003 passed by the Division Bench of the High Court, to be expunged and scored out as derogatory of this Court, disparaging, totally uncalled for and making observations on the proceedings of this Court which the High Court should not have made. Such remarks should not continue to be retained on the record of the High Court as a Court of record. (Para 35)