2004 Supreme(SC) 454

2004(4) Supreme 473
SUPREME COURT OF INDIA
(From Andhra Pradesh High Court)
V.N. Khare, CJI., S.B. Sinha & S.H. Kapadia, JJ.
N.K. Prasada -Appellant
versus
Government of India and Ors. -Respondents
Civil Appeal No. 3137 of 1999
Decided on 12-4-2004
Counsel for the Parties :
For the Appellant : A. Sharan, Sr. Advocate, Amit Kumar, S. Chandra Shekhar, Advocates.
For the Respondents : Anoop G. Choudhary, Sr. Advocate, C.V.S. Rao, B.K. Prasad, A.S. Bhasme, P. Parmeswaran, Advocates.

IMPORTANT POINT
If a party after having proper notice chose not to appear, he at a later stage cannot be permitted to say that he had not been given a fair opportunity of hearing.

Headnote:Constitution of India-Articles 226 and 32-Public Interest Litigation-Scope-Petition filed by a former Member of Legislative Assembly and by a journalist-Allegations of malfunctioning of Commissioner of Central Excise resulting in loss of several crores of rupees as also purported dismantling of Special Investigating Team headed by appellant-Allegations that the said Special Investigation Team was dismantled by the Commissioner only with a view to help dishonest traders and to prevent the cases relating to evasion of excise duty-Appellant was not initially a party therein-Order of transfer passed against appellant-Writ petition filed challenging transfer of appellant-High Court noticed gross abuse of process of Court in the manner of filing of public interest litigations-Contempt proceedings-Appellant challenging certain observations made by Division Bench of the High Court as also imposition of a sum of Rs. 20,000/- by way of costs-Whether order of High Court needs any interference-(No).

       Held : The High Court noticed gross abuse of the process of the Court in the manner of filing the aforementioned two writ petitions said to be in the nature of public interest litigations. The High Court also went into the merit of the matter and arrived at a finding that the writ petitions were filed at the instance of the appellant herein. The High Court while finding the said writ petitions to be without any merit opined that no relief can be granted to the writ petitioner. The High Court also expressed its unhappiness over the role of the lawyers. The High Court although noticed that the writ petitioner in writ petition No. 5717 of 1997 appeared in person and wanted to withdraw the writ petition but did not absolve him of his responsibility in the matter in filing the writ petition at the instance of the appellant herein. However, it took a lenient view and dismissed the writ petition without awarding any cost against him. The High Court, however, administered severe warning to him to be careful in future and not to play any game with judicial process. (Para 12)

       The writ petition and the contempt proceedings pending before the High Court were disposed of on the basis of the materials on record. The materials not only included affidavits of the parties as also that of the appellant but also the sworn statements of the writ petitioner and the Advocate appearing for the writ petitioner. In view of the fact that even the learned advocate appearing on behalf of the writ petitioner categorically stated that at the time of drawing of the writ petition the appellant was present, no fault with the findings of the High Court can be found out if reliance had been placed thereupon. The appellant had intervened in the writ applications as far back as on 22.5.1997. He, it will bear repetition to state, filed an application for grant of an interim relief. The same was pending and, thus, there cannot be any doubt whatsoever, having regard to the fact that the Central Bureau of Investigation was making enquiry; the appellant herein must be held to have been aware thereabout. His two applications were also pending and presumably pressed (as there is nothing on record to show that at any point of time, he intended to withdraw the same), and thus a presumption can be drawn to the effect that he/his advocate had been keeping a watch over the entire proceeding. Despite the same at no point of time the appellant wanted to cross-examine any witness. He never brought the fact to the notice of the court that a criminal case had also been filed against the Dy. S.P. of the C.B.I. allegedly for taking bribe. He allowed the proceedings before the High Court to go on. He sat on the fence. He, as has been noticed by the High Court, even could not be traced out for some time. (Para 21)

       In any event, it is not a case where this Court should exercise its discretion in favour of the appellant. It is trite that in a given case, the Court may refuse to exercise its discretionary jurisdiction under Article 136 of the Constitution. (Para 26)