19 Feb 2011

Courts not to insist on attendance of public functionaries: Supreme Court

Holding that the trust and faith reposed in the judiciary should not be allowed to be frittered away, the Supreme Court in a recent decision [State of U.P. & Ors. v. Jasvir Singh & Ors.] has declared that directions by the Court for ensuring attendance of public functionaries in Courts should be exceptional and not the norm of the day. Holding that "requiring the presence of the senior officers of the government in court should be as a last resort, in rare and exceptional cases, where such presence is absolutely necessary, as for example, where it is necessary to seek assistance in explaining complex policy or technical issues, which the counsel is not able to explain properly", the Supreme Court served an apt reminder to the Courts to exercise their powers with caution.

The Court inter alia observed as under;
6. The fact that the issue relating to increase of compensation is pending in appeals before the High Court in pursuance of the order of remand by this Court, is not in dispute. The quantum of compensation will have to be decided in those appeals and not in a writ petition. As on date, there is no order either in the appeal or the writ petition determining any amount (other than what was awarded by the Reference Court) as due to the respondents. The contention and prayer of the respondents in the writ petition that fresh notifications should be issued regarding the acquisitions and the compensation should be determined with reference to the current rates as on the date of such fresh notification and not as on 18.8.1981, is a matter that is yet to be decided in the writ petition. As both the writ petition and the appeals are pending, it cannot be said that there is any delay on the part of the state government or its officers in effecting payment of compensation. The delay at present is in fact on account of the pendency of the matters before the High Court. If the High Court was of the view that the matter was getting unnecessarily delayed, or that any injustice had been caused to the land owners, it ought to have heard the writ petition finally and decided the dispute on merits instead of listing the matter on several days and asking different senior officers of the state government to be present and virtually intimidate them to agree for a settlement by paying compensation at current market value instead of with reference to 18.8.1981. The procedure and method adopted by the Division Bench of the High Court, to say the least, is improper and requires to be deprecated.
7. It is a matter of concern that there is a growing trend among a few Judges of the High Court to routinely and frequently require the presence, in court, of senior officers of the government and local and other authorities, including officers of the level of Secretaries, for perceived non-compliance with its suggestions or to seek insignificant clarifications. The power of the High Court under Article 226 is no doubt very wide. It can issue to any person or authority or government, directions, orders, writs for enforcement of fundamental rights or for any other purpose. The High Court has the power to summon or require the personal presence of any officer, to assist the court to render justice or arrive at a proper decision. But there are well settled norms and procedures for exercise of such power.
8. This court has repeatedly noticed that the real power of courts is not in passing decrees and orders, nor in punishing offenders and contemnors, nor in summoning the presence of senior officers, but in the trust, faith and confidence of the common man in the judiciary. Such trust and confidence should not be frittered away by unnecessary and unwarranted show or exercise of power. Greater the power, greater should be the responsibility in exercising such power. The normal procedure in writ petitions is to hear the parties through their counsel who are instructed in the matter, and decide them by examining the pleadings/affidavit/evidence/documents/material. Where the court seeks any information about the compliance with any of its directions, it is furnished by affidavits or reports supported by relevant documents. Requiring the presence of the senior officers of the government in court should be as a last resort, in rare and exceptional cases, where such presence is absolutely necessary, as for example, where it is necessary to seek assistance in explaining complex policy or technical issues, which the counsel is not able to explain properly. The court may also require personal attendance of the officers, where it finds that any officer is deliberately or with ulterior motives withholding any specific information required by the court which he is legally bound to provide or has misrepresented or suppressed the correct position .
9. Where the State has a definite policy or taken a specific stand and that has been clearly explained by way of affidavit, the court should not attempt to impose a contrary view by way of suggestions or proposals for settlement. A court can of course express its views and issue directions through its reasoned orders, subject to limitations in regard to interference in matters of policy. But it should not, and in fact, it cannot attempt to impose its views by asking an unwilling party to settle on the terms suggested by it. At all events the courts should avoid directing the senior officers to be present in court to settle the grievances of individual litigants for whom the court may have sympathy. The court should realize that the state has its own priorities, policies and compulsions which may result in a particular stand. Merely because the court does not like such a stand, it cannot summon or call the senior officers time and again to court or issue threatening show cause notices. The senior officers of the government are in-charge of the administration of the State, have their own busy schedules. The court should desist from calling them for all and sundry matters, as that would amount to abuse of judicial power. Courts should guard against such transgressions in the exercise of power. Our above observations do not of course apply to summoning of contemnors in contempt jurisdiction.
10. We have made the above observations rather reluctantly. Our observations should not be construed as restricting or limiting the exercise of the extraordinary jurisdiction of High Courts under Article 226 of the Constitution of India. The observations are intended to be guidance for self-regulation and self-restriction by courts. It became necessary as we have noticed that the learned Presiding Judge of the Bench has been frequently making such orders directing senior officers of the Government to be present and settle claims. It is a coincidence that another case where a similar procedure was adopted by the learned Presiding Judge of the bench, came up before us today Lake Development Authority, Nainital vs. Heena Khan (CA No.10087-10090 of 2010 decided on 26.11.2010). We have no doubt that the learned Judge bona fide believes that by requiring the presence of senior officers, he could expedite matters and render effective justice. But it is not sufficient that the object of the Judge is noble or bonafide. The process of achieving the object should be just and proper, without exceeding the well recognised norms of judicial propriety. 
11. In this context we may refer to the following observations of this court in State of Gujarat vs. Turabali Gulamhussain Hirani - 2007 (14) SCC 94 :
"A large number of cases have come up before this Court where we find that learned Judges of various High Courts have been summoning the Chief Secretary, Secretaries to the Government (Central and state), Directors General of Police, Director-CBI or BSF or other senior officials of the Government. There is no doubt that the High Court has power to summon these officials, but in our opinion that should be done in very rare and exceptional cases when there are compelling circumstances to do so. Such summoning orders should not be passed lightly or as a routine or at the top of a hat. Judges should have modesty and humility. They should realize that summoning a senior official, except in some very rare and exceptional situation, and that too for compelling reasons, is counterproductive and may also involve heavy expenses and valuable time of the official concerned. The judiciary must have respect for the executive and the legislature. Judges should realize that officials like the Chief Secretary, Secretary to Government, Commissioners, District Magistrates, senior police officials, etc. are extremely busy persons who are often working from morning till night."
12. On the facts and circumstances, the interim directions of the Division Bench of the High Court, issued while dealing with a writ petition challenging the acquisition, requiring the Principal Secretary (PWD), Principal Secretary (Finance) or Principal Secretary (Revenue) to be present on different dates, are improper and are liable to be interfered.

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