-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.27 OF 2006 LETTERS PATENT APPEAL NO.27 OF 2006 LETTERS PATENT APPEAL NO.27 OF 2006 IN IN IN PUBLIC INTEREST LITIGATION NO.10 OF 2005 PUBLIC INTEREST LITIGATION NO.10 OF 2005 PUBLIC INTEREST LITIGATION NO.10 OF 2005 Shri Mishrimal Jethmal Oswal Indian Citizen, aged 63 years, residing at 88/2, radha Niwas, Lonavala, Dist-Thane. .. Appellant Appellant Appellant. (Orig.Petitioner) Vs 1. The Municipal Council of Lonavala, through its Chief Executive Officer, Lonavala Municipal Council Building, Lonavala. 2. The State of Maharashtra, through the Secretary, Urban Development Department, Mantralaya, Mumbai-400 032. 3. The Collector of District Pune, Circuit House, Pune. 4. The Tata Power Company Ltd, having its registered office at Bombay House, Fort, Mumbai. 5. Sahara India Commercial Corporation Ltd, situated at Amby Valley, Lonavala. 6. The Commanding Officer, INS Shivaji, Lonavala, Pune-410 402. .. Respondents Respondents Respondents (Orig.Respondents) Mr K.K.Singhvi, Senior Counsel with Ms Aparna Shinde, for the appellant. Mr S.G.Aney, Senior Counsel with Mr C.S.Balsara with Mr H.N.Vakil, Mr. D.D.Mehta i/b Mulla & Mulla for respondent no.4. -2- Mr S.V.Pitre for respondent no.1. CORAM : SMT.RANJANA DESAI & D.B.BHOSALE,JJ. CORAM : SMT.RANJANA DESAI & D.B.BHOSALE,JJ. CORAM : SMT.RANJANA DESAI & D.B.BHOSALE,JJ. DATE : 28th February, 2006. DATE : 28th February, 2006. DATE : 28th February, 2006. Date of reserving the Judgment : 17.02.2006. Date of reserving the Judgment : 17.02.2006. Date of reserving the Judgment : 17.02.2006. Date of pronouncing the Judgment: 28.02.2006 Date of pronouncing the Judgment: 28.02.2006 Date of pronouncing the Judgment: 28.02.2006 ORAL JUDGMENT : (PER D.B.BHOSALE, J.) ORAL JUDGMENT : (PER D.B.BHOSALE, J.) ORAL JUDGMENT : (PER D.B.BHOSALE, J.) 1. The principal question, which arises for determination in this Appeal under Clause 15 of the Letters Patent, is whether the Judgment prepared by a member of the Division Bench and thereafter signed by the other member can be pronounced by him even after the other member of the Bench ceases to be a Judge of this Court. The question as to maintainability of the Letters Patent Appeal (for short, "LPA") was also raised, in the course of arguments, contending that by no stretch of imagination the order, impugned in the appeal, can be treated as a Judgment within the meaning of clause 15 of the Letters Patent. 2. The factual matrix, giving rise to the aforesaid questions, briefly stated, is as follows. A Division Bench of the learned Chief Justice Mr Dalveer Bhandari (as His Lordship then was) and Mr S.J.Vazifdar,J. heard Public Interest Litigation No.10 of 2005 and upon conclusion of the arguments, reserved the judgment. The -3- judgment was thereafter prepared by S.J.Vazifdar,J. and he forwarded a draft thereof to the learned Chief Justice. The learned Chief Justice signed the judgment in New Delhi on 27.10.2005. On 28.10.2005, the learned Chief Justice (Mr Justice Dalveer Bhandari) was elevated as a Judge of the Supreme Court. By the time the signed copy of the draft judgment was forwarded to Vazifdar, J., His Lordship had ceased to be a Judge of this Court, though it was signed by him as a member of the Division Bench. It is against this backdrop, Vazifdar,J. heard the learned senior counsel appearing for the parties on the question whether he was entitled to pronounce the judgment. He answered it in negative vide his order dated 20.12.2005 and hence the appellant is before this Court in appeal under clause 15 of the Letters Patent. 3. At the outset, we would like to begin with the question as to maintainability of the LPA. Mr Anne, learned senior counsel for the respondents, submitted that the order of the learned Single Judge, which is impugned in the appeal, is not a judgment within the meaning of clause 15 of the Letters Patent. It does not amount to judgment since there is no formal adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy. According to Mr Anne, the order dated 20.12.2005 is only -4- a declaration of opinion by the learned Single Judge regarding his inability to pronounce the judgment. In support of this proposition of law, a heavy reliance was placed upon the judgments of the Supreme Court in Shah Shah Shah Babulal Khimji Vs. Jayaben D.Kania and another, AIR Babulal Khimji Vs. Jayaben D.Kania and another, AIR Babulal Khimji Vs. Jayaben D.Kania and another, AIR 1981 Supreme Court 1786 1981 Supreme Court 1786 1981 Supreme Court 1786 and in Surendra Singh Vs. State Surendra Singh Vs. State Surendra Singh Vs. State of Uttar Paradesh, AIR 1954 SC 194 of Uttar Paradesh, AIR 1954 SC 194 of Uttar Paradesh, AIR 1954 SC 194. He next submitted that the impugned order being by a Judge who was a member of the Division Bench, cannot be challenged in LPA as it would amount to an appeal against an order of a co-ordinate bench. He then submitted that pronouncement of the judgment after the then Chief Justice Dalveer Bhandari’s elevation would be opposed to public policy since it would lead to speculation as to whether the Judge would or would not have changed his mind. 4. On the other hand, Mr Singhvi, learned senior counsel for the appellant, submitted that the right of a judgment is a valuable right of a party and, therefore, the order affecting or denying such right would amount to a judgment within the meaning of Clause 15 of the Letters Patent. He, too, in support of his contentions, placed reliance on the judgment of the Supreme Court in Shah Babulal Khimji’s Shah Babulal Khimji’s Shah Babulal Khimji’s case (supra). The reliance was also placed on the judgment of the Privy Council in -5- Gokal Chand Jagan Nath Vs. Nanda Ram Das Atma Ram AIR Gokal Chand Jagan Nath Vs. Nanda Ram Das Atma Ram AIR Gokal Chand Jagan Nath Vs. Nanda Ram Das Atma Ram AIR 1938 PC 292 1938 PC 292 1938 PC 292. He further submitted that the impugned order possesses the characteristic and trappings of finality in that and it also adversely affects a valuable right of the appellant to a judgment and, in view thereof LPA is maintainable. He next submitted that by no stretch of imagination the order passed by Vazifdar,J. could be treated as an order of a co-ordinate bench of this Court. The Division Bench, which heard the PIL, stood dissolved the moment His Lordship (Mr Justice Dalveer Bhandari) was elevated to the Supreme court. He had ceased to be a Judge of this Court and, therefore, it cannot be stated that the order impugned was passed by the learned Single Judge as a member of the said Division Bench. Lastly, Mr Singhvi submitted that the then learned Chief Justice had approved the draft judgment by signing the same indicating thereby that he never intended to make any change whatsoever in the judgment and, therefore, pronouncement of such judgment cannot be said to be opposed to public policy. 5. The Supreme Court in Shah Babulal Khimji’s Shah Babulal Khimji’s Shah Babulal Khimji’s case (supra) was considering the question as to when the decision impugned in the LPA could be treated to be a judgment within the meaning of clause 15 of the Letters -6- Patent. Clause 15 makes no attempt to define what a judgment is. As Letters Patent is a special law which carves out its own sphere, the Supreme Court has observed that it would not be possible to project the definition of the word "judgment" appearing in section 2(9) of the Code of 1908 which defines "judgment" into the Letters Patent. It was further made clear as to what is "judgment" which could be challenged in appeal under clause 15 of the Letters Patent. The relevant observations in paragraph 113 read thus: "... ... Thus, under the Code of Civil Procedure a judgment consists of the reasons and grounds for a decree passed by a Court. As a judgment constitutes the reasons for the decree it follows as a matter of course that the judgment must be a formal adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy. The concept of a The concept of a The concept of a judgment as defined by the Code of Civil judgment as defined by the Code of Civil judgment as defined by the Code of Civil Procedure seems to be rather narrow and Procedure seems to be rather narrow and Procedure seems to be rather narrow and the limitations engrafted by sub-sec.(2) the limitations engrafted by sub-sec.(2) the limitations engrafted by sub-sec.(2) of Section 2 cannot be physically of Section 2 cannot be physically of Section 2 cannot be physically imported into the definition of the word imported into the definition of the word imported into the definition of the word ‘judgment’ as used in Cl.15 of the ‘judgment’ as used in Cl.15 of the ‘judgment’ as used in Cl.15 of the Letters Patent because the Letters Patent Letters Patent because the Letters Patent Letters Patent because the Letters Patent has advisedly not used the term ‘order’ has advisedly not used the term ‘order’ has advisedly not used the term ‘order’ or ‘decree’ anywhere. or ‘decree’ anywhere. or ‘decree’ anywhere. The intention, therefore, of the givers of the Letters Patent was that the word ‘judgment’ the word ‘judgment’ the word ‘judgment’ should receive a much wider and more should receive a much wider and more should receive a much wider and more liberal interpretation than the word liberal interpretation than the word liberal interpretation than the word ‘judgment’ used in the Code of Civil ‘judgment’ used in the Code of Civil ‘judgment’ used in the Code of Civil Procedure. Procedure. Procedure. At the same time, it cannot be said that any order passed by a trial Judge would amount to a judgment; otherwise there will be no end to the -7- number of orders which would be appealable under the Letters Patent. It seems to us that the word ‘judgment’ has undoubtedly a concept of finality in a broader and not a narrower sense." (emphasis supplied) The Supreme Court then proceeded to mention three categories of the judgments, viz. a final judgment, a preliminary judgment, and an intermediary or interlocutory judgment. While explaining as to what is a preliminary and interlocutory judgment, it was observed that "the order which adversely affects a valuable right of a party keeping the main proceeding alive must be construed to be a judgment so as to be appealable to a larger bench". It was further observed that "before such an order can be a judgment, the adverse effect on the party concerned must be direct and immediate rather than indirect or remote". In paragraph 115, the Supreme Court proceeds to observe that "every order cannot be regarded as a judgment but only those orders would be judgment which decide matters of moment or affect vital or valuable rights of the parties and such works serious injustice to the party concerned". 6. The law is thus clear that an order, which decides and/or adversely affects a valuable right of the -8- parties and its adverse effect on the party concerned is direct or immediate and which works serious injustice to the party concerned would amount to a judgment. In short, the "order" must be a formal adjudication, which conclusively determines the rights of the parties with regard to all or any of the matters in controversy. Letters Patent Appeal against such order under clause 15 of the Letters Patent would be maintainable. The word "judgment" in clause 15 of the Letters Patent, thus, should receive a wider and more liberal interpretation. 7. In the instant case, Mr Aney, learned senior counsel for the respondent, when submitted that the impugned order does not decide the rights of the parties or no valuable rights whatsoever of the respondent are affected, he was referring to the merits of PIL and the rights of the parties involved therein and not the rights of the parties to a judgment. The only question that fell for the consideration of the learned Single Judge was, however, whether he could or could not pronounce the judgment which was made ready by him and which was signed by the other member of the bench, who had ceased to be a Judge of this Court. In our opinion, the right of a party to a judgment is relevant and not the merits of the main proceedings when maintainability -9- of the LPA against the order of the learned Single Judge is to be considered. And as a matter of fact the "right to a judgment" only was under consideration before Vazifdar,J. and that has been finally decided by the impugned order holding that he was not entitled to pronounce the judgment prepared by him and signed by the other member of the bench who had ceased to be a Judge of this Court before its pronouncement. The proposition that a right of a party to a judgment is a valuable right was not in dispute. It is against the backdrop of these facts and circumstances, we have no hesitation in holding that the impugned order in the instant appeal would amount to a judgment within the meaning of clause 15 of the Letters Patent. 8. We would now like to consider the next submission of Mr Anne, that the impugned order of the Learned Single Judge cannot be challenged in LPA as it would amount to an appeal against the order of a co-ordinate bench. The draft judgment, which was prepared by Vazifdar,J. was a judgment of the Division Bench. It was signed by the learned Chief Justice on 27.10.2005. On 28.10.2005, His Lordship (Mr Justice Dalveer Bhandari) was elevated as a Judge of the Supreme Court and as a result of which His Lordship had ceased to be a Judge of this Court. The Division Bench, as a -10- consequence thereof, stood dissolved and was not existing on or after 28.10.2005. It is against this backdrop, Vazifdar,J. considered the aforesaid question and passed the impugned order on 20.12.2005. He cannot be said to have had considered the question and passed the order as a member of the Division Bench. The other member of the bench had ceased to be a judge of this Court when the question was being considered by Vazifdar,J. It would not be, therefore, possible to accept the submission of Mr Anne that the order of Vazifdar,J. was an order of the Division Bench and, therefore, the LPA filed against that order would amount to an appeal against the order of a co-ordinate bench. We find no legal impediment in entertaining the instant appeal under Clause 15 of the Letters Patent against the order passed by Vazifdar,J. and deciding the question that falls for our consideration in the instant LPA. In so far as the last submission that the pronouncement of the judgment, after the then Chief Justice Dalveer Bhandari’s elevation would be opposed to public policy is concerned, we will deal with it while considering the merits of the case. 9. The arguments advanced by both the learned senior counsel on merits were centered on the judgment of the Supreme Court in Surendra Singh’s case. Mr Singhvi, -11- learned senior counsel for the appellant, endeavoured to distinguish the ratio laid down in Surendra Singh’s case on which Mr Anne, learned senior counsel, for the respondent, on the other hand, placed heavy reliance upon the observations made therein and in particular paragraphs 9 to 12 thereof. We, therefore, deem it necessary to state the brief facts of the case and the question involved and considered by the Supreme Court. 10. In Surendra Singh’s case Surendra Singh’s case Surendra Singh’s case, three accused in the murder case had appealed to the High Court at Allahabad (Lucknow Bench) against the judgment and order of their conviction. The appeals were heard by the Division Bench (Kidwai and Bhargava, JJ.) on 11.12.1952. The "judgment" was reserved. Before it could be delivered, Bhargava,J. was transferred to Allahabad. While there, he dictated a "judgment" purporting to do so on behalf of himself and his brother Judge. He signed every page of the "judgment" as well as at the end but did not date it. He then sent the said judgment to Kidwai,J. at Lucknow. On 22.12.1952 Bhargava J. died before the "judgment" was delivered. After his death, on 5.1.1953 his brother judgment (Kidwai, J.) purported to deliver the "judgment" of the court. He signed it and dated it. The date he placed on it was 5.1.1953. The appeal was dismissed and the sentence of death to one of the -12- accused was confirmed. Against the backdrop of these facts, the question that fell for consideration of the Supreme Court was "whether that judgment could have been validly delivered after the death of one of the two Judges who heard the appeal". 11. It is true that the Supreme Court was considering the question in criminal case. However, in paragraph 9 of the judgment, after considering section 537 of Cr.P.C and sections 99 and 108 of the Code of Civil Procedure, Vivian Bose, J. speaking for the Bench, observed that the principle underlying them is the same. The Supreme Court then proceeded to decide what is a judgment? Undoubtedly, the Supreme Court considered this question in the light of the facts of that case and also relevant provisions of the Cr.P.C. But that by itself, in our opinion, would not limit the underlying principle laid down only to criminal cases under the Criminal Procedure Code or the Indian Penal Code. 12. From bare perusal of the judgment in Surendra Singh’s case, it would be clear that the law laid down by the Supreme Court would equally apply to any other case or even to public interest litigation filed under Article 226 of the Constitution of India. In any case, it cannot be stated, as vehemently contended by Mr -13- Singhvi, learned senior counsel, that the observations of the Supreme Court are limited on to matters under Cr.P.C or I.P.C. We are of the considered opinion that the legal position discussed and the law laid down by the Supreme Court in the judgment and in particulars paragraphs 10 to 12 would apply equally to civil cases. It would be advantageous to reproduce paragraphs 10 to 12 of the judgment in Surendra Singh’s case, which read thus: "10. In our opinion, a judgment within a judgment within a judgment within the meaning of these sections is the the meaning of these sections is the the meaning of these sections is the final decision of the Court intimated to final decision of the Court intimated to final decision of the Court intimated to the parties and to the world at large by the parties and to the world at large by the parties and to the world at large by formal "pronouncement" or "delivery" in formal "pronouncement" or "delivery" in formal "pronouncement" or "delivery" in open Court. It is judicial act which open Court. It is judicial act which open Court. It is judicial act which must be performed in a judicial way must be performed in a judicial way must be performed in a judicial way. Small irregularities in the manner of pronouncement or the mode of delivery do not matter but the substance of the thing must be there; that can neither be blurred nor left to inference and conjecture nor cannot be vague. All the rest, the manner in which it is to be recorded the way in which it is to be authenticated the signing and the sealing, all the rules designated to secure certainty about its content and matter can be cured; but not the hard core, namely the formal intimation of the decision and its contents formally declared in a judicial way in open Court. The exact way in which this is done does not matter. In some Courts the judgment is delivered orally or read out, in some only the operative portion is pronounced, in some the judgment is merely signed after giving notice to the parties and laying the draft on the table for given number of days for inspection. -14- 11. An important point therefore arises. It is evident that the decision the decision the decision which is so pronounced or intimated must which is so pronounced or intimated must which is so pronounced or intimated must be a declaration of the mind of the Court be a declaration of the mind of the Court be a declaration of the mind of the Court as it is at the time of pronouncement as it is at the time of pronouncement as it is at the time of pronouncement. We lay no stress on the mode or manner of delivery, as that is not of the essence, except to say that it must be done in a judicial way in open Court. But however it is done it must be an expression of the mind of the Court at the time of delivery. We say this because that is the first judicial act touching the judgment which the Court performs after the hearing. Everything else up till then is done out of Court and is not intended to be the operative act which sets all the consequences which follow on the judgment in motion. Judges may, and Judges may, and Judges may, and often do, discuss the matter among often do, discuss the matter among often do, discuss the matter among themselves and reach a tentative themselves and reach a tentative themselves and reach a tentative conclusion. That is not their judgment. conclusion. That is not their judgment. conclusion. That is not their judgment. They may write and exchange drafts. They may write and exchange drafts. They may write and exchange drafts. Those are not the judgments either, Those are not the judgments either, Those are not the judgments either, however, heavily and often they may have however, heavily and often they may have however, heavily and often they may have been signed. The final operative act is been signed. The final operative act is been signed. The final operative act is that which is formally declared in open that which is formally declared in open that which is formally declared in open Court with the intention of making it the Court with the intention of making it the Court with the intention of making it the operative decision of the Court. That is operative decision of the Court. That is operative decision of the Court. That is what constitutes the "judgment" what constitutes the "judgment" what constitutes the "judgment". 12. Now up to the moment the judgment Now up to the moment the judgment Now up to the moment the judgment is delivered Judges have the right to is delivered Judges have the right to is delivered Judges have the right to change their mind. There is a sort of change their mind. There is a sort of change their mind. There is a sort of ‘locus paenitentiae’ and indeed last ‘locus paenitentiae’ and indeed last ‘locus paenitentiae’ and indeed last minute alterations often do occur. minute alterations often do occur. minute alterations often do occur. Therefore, however, much a draft judgment Therefore, however, much a draft judgment Therefore, however, much a draft judgment may have been signed beforehand, it is may have been signed beforehand, it is may have been signed beforehand, it is nothing but a draft till formally nothing but a draft till formally nothing but a draft till formally delivered as the judgment of the Court delivered as the judgment of the Court delivered as the judgment of the Court. Only then does it