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Anjuru Chandra Sekhar (Advocate )     13 June 2013

Is it fair?

26. We had suggested to the parties that, if they both consent, we would decide the mater here itself and thereby two possible further rounds of litigation could be avoided. While Mr. Shanti Bhushan, learned Senior Counsel for the appellant was prepared for this, the learned Addl. Solicitor General declined to accept this suggestion. Hence, despite our being satisfied that the appellant had a case for review, we refrain from deciding what relief, if any, should be granted on such review, and leave it to the judgment of the High Court.

 

Supreme Court of India
Green View Tea And Industries vs Collector, Golaghat, Assam And ... on 17 February, 2004
 
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The facts of the case are briefly that the government acquired the land of appellant in 1993 to urgently set up an oil refinery.  The government it its initial proposal as per meeting held with CM fixed compensation for the Tea estate containing 691 bighas of land @ Rs.55000 per bigha.  The appellant was conveyed the same.  The appellant rejected the proposal and demanded a higher price.  Consequently the government gave the land @Rs.7000/- per bigha which was protested by the appellant but as Land acquisition was as per law, he had no other way to surrender the land and take recourse to civil litigation.  After a series of litigations at District court, High court level, this appeal against review petition of HC was filed in 2004 on the ground that material placed on record was not considered by HC.  It means 11 years since the government acquired land.  Having spent so much time, the SC instead of taking the case on its own to decide then and there itself proposed to the counsels for their opinion as to whether they are willing to the proposal of the apex court to decide the case at apex court itself.  As can be seen from the above para, the counsel for the party was ready for it but the Government counsel did not accept.  Hence the court was remitted back to HC.  In other words the Govt. counsel wanted to delay the matter and further litigate.  Is it fair for the court to ask for the opinion of the counsels without taking a decision on its own keeping the delay of ten years already taken place in view?
 
 
There is nothing the government counsel would stand to lose if further litigations take place.  They are paid for it.  So they will feel happy if the case is remitted back to District court even because they can litigate 3 rounds from thereon.  It is the parties litigating against government that stand to lose.  It happened in one of our cases as well.  Without taking anything in the written submissions into consideration the HC remitted the case to Tribunal after keeping the WP with it for over two years.  The very reason why the WP is filed with HC is to avoid that round of litigation at Tribunal level.  Reasons were cited in the WP as to why HC should admit the case.  Moreover it is a case of Senior citizen having 80 years age.  Remitting case back to Tribunal means a Senior citizen has to start from scratch again involving in three rounds of litigation.  When I was referring to cases where I can find citations to quote in our review petition I found this case where here also the SC remitted the case back to HC giving leverage to the Govt. Counsel.
 
 
Why courts give this kind of leverage to Government counsels?  Does anyone have answer?


Learning

 5 Replies

Anjuru Chandra Sekhar (Advocate )     13 June 2013

I am beginning to lose my faith in Judiciary seeing all these. 

Anjuru Chandra Sekhar (Advocate )     17 June 2013

If the judge does not record reasons as to why he does not agree with the contentions of the party losing the case, he is fit to be Jamindar in a Monarcy rather than a Judge in a Democracy.

Anjuru Chandra Sekhar (Advocate )     17 June 2013

A judge should not be or appear inexorable to the aggrieved parties rather he should appear as a friend with whom they can share all their woes.  Giving reasons for not agreeing with the contentions is not for the sake of law, but it shows that the judge as a person does not lack humility to even bear with the questions, contentions of the parties and give reasons as to why he does not agree with the party.  It is the personal quality that a judge should inculcate.  If a judge lacks humility he does not feel the need to give reasons as to why the party against whom he is ruling is fit enough to be given an explanation.  Not giving reasons makes a judge feel he is too big about himself and too small about the party whose contentions he feels he need not discuss at all.  All this shows the mental make up of the judge rather than a breach of legal procedures in delivering judgments.

Anjuru Chandra Sekhar (Advocate )     17 June 2013

Dictatorship manifests in all of us in bits.  It is not necessarily a personal quality of Kings and Monarchs or Jamindars.  For instance, we are more inclined to share our problems with friends than parents.  Reason?  Parents do not give reasons when they give any order to us.  Father tells you suppose, "Don't meet Mr.A henceforth".  You don't feel comfortable to put a question to him, "May I ask you why?"...because you carry the feeling, he is inexorable.  He will put his face as if to suggest, "how dare you ask this question to me?". Or you can anticipate the answer even before you put the question...he will say, "Don't ask questions.  Do as I say!".   He is a dictator.  He does not give reasons for your queries and contentions.  Whereas you friend says the same, you feel free to ask him "May I ask you why?".  He will tell you reasons.  There is no Tanashahi involved in friendship.  Even a father can be a good friend.  And he might give reasons.  There is no denial.  This is just quoted as an example to show what is dictatorship in a human being and in what form it lies.

 

Recording reasons by a judge is a requirement of rules of natural justice.  It is not strictly a legal requirement too.  It shows that the judge is accessible as a human being.  It shows that the judge is humble enough to receieve a question from the party/counsel representing party "May I know reasons why my contentions are held to be wrong?".  If he is a dictator he will say, "No. This is an order you have to follow it".  If he is not a dictator, he will humbly give explanation (reasons) as to why he differs with party's contentions and record his reasons. 

 

Hence rules of natural justice are not simply the requirement of law but a requirement of personal quality too in human beings.  Every human being should strive to adhere to rules of natural justice even in daily affairs in order that they look humble, they do not look like a dictator to others. 

venkatesh Rao (Retired Government Servant)     18 June 2013

Want a liottle bit of time, say a week. I can lay my hands on some decisions and can try to reply.


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