15 Feb 2011

Order valid unless set aside in a manner known to law: The law revisited

Since the outcome of judicial process is always a declaration in favour of one party and against another, the judgments are more often then not criticized on various grounds. One of the most prominent grounds for taking up the matter in appeal is that the order has been passed without jurisdiction, is void or is contrary to settled notions of law. However mere assertion to this regard is not sufficient. The nature of judicial process requires the enforcement authorities to execute a decision unless the decision is rendered. On this principle the law is set that the executing court cannot go behind the manner in which the decision was rendered. 

The judicial process, therefore, which has now been firmly established in the country is that any order, whether without jurisdiction; illegal or patently void, is required to be set aside in a manner known to law and only when such event happens can the effect of the order be discontinued. Unless the order is set aside in a legally recognised manner, it continues to have all legal force and sanction and it is not a valid ground to dishonour the decision only on the assertion that it is illegal, void etc.

The Supreme Court in a recent decision [Krishnadevi Malchand Kamathia v. Bombay Environmental Action Group] explained the concept inter alia as under;
17. It is settled legal proposition that even if an order is void, it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void.
18. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth Naduvil (dead) & Ors., AIR 1996 SC 906; Tayabbhai M. Bagasarwalla & Anr. v. Hind Rubber Industries Pvt. Ltd. etc, AIR 1997 SC 1240; M. Meenakshi & Ors. v. Metadin Agarwal (dead) by L.Rs. & Ors. (2006) 7 SCC 470; and Sneh Gupta v. Devi Sarup & Ors., (2009) 6 SCC 194, this Court held that whether an order is valid or void, cannot be determined by the parties. For setting aside such an order, even if void, the party has to approach the appropriate forum.
19. In State of Punjab & Ors. v. Gurdev Singh, Ashok Kumar, AIR 1991 SC 2219, this Court held that a party aggrieved by the invalidity of an order has to approach the court for relief of declaration that the order against him is inoperative and therefore, not binding upon him. While deciding the said case, this Court placed reliance upon the judgment in Smith v. East Ellore Rural District Council, [1956] 1 All ER 855 wherein Lord Radcliffe observed:- 
“An order, even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.”
20. In Sultan Sadik v. Sanjay Raj Subba & Ors., AIR 2004 SC 1377, this Court took a similar view observing that once an order is declared non-est by the Court only then the judgment of nullity would operate erga omnes i.e. for and against everyone concerned. Such a declaration is permissible if the court comes to the conclusion that the author of the order lacks inherent jurisdiction/competence and therefore, it comes to the conclusion that the order suffers from patent and latent invalidity.
21. Thus, from the above it emerges that even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds including the standing of the petitioner or on the ground of delay or on the doctrine of waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or another person.

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