IN THE HIGH COURT OF <NAME> AT RANCHI Arbitration Application No. 4 of 2013 M/s <ORG>, Setu Bhawan, 16, Madan Mohan Malwiya Marg, (Uttar Pradesh), through <NAME>, Project Manager of <ORG> at Digha Ghat, Patna, Bihar ... Petitioner Versus 1.

<ORG>, <ORG>, <ORG>, <ORG> <ORG>, District Ranchi

2. The General Manager (Civil), <ORG>, <ORG>, <ORG>, P.O. G.P.O., P.S. Kotwali, District Ranchi

3. The Deputy General Manager/H.O.D. (Legal), <ORG>, <ORG>, Darbhanga House, P.O. G.P.O., P.S. Kotwali, District Ranchi ... Respondents  CORAM: HON'BLE MR. JUSTICE D. N. PATEL  For the Petitioner : Mr. Prashant Pallav, Advocate For the Respondents : Mr. Ananda Sen, Advocate  th 12/Dated: 13 April, 2015

1. This application has been preferred under Subsection 6 of Section 11 of the Arbitration and Conciliation Act, 1996.

2. Learned counsel for the petitioner submitted that an agreement has been entered into between the parties to this application. The said agreement is dated 2nd August, 2002 for the construction of High Level Bridge. The details of the term of the contract has been mentioned in the agreement. It is further submitted by the learned counsel for the petitioner that as per Clause 11 of the said agreement, which is at Annexure1 to the memo of this application, there is arbitration Clause. The said Clause reads as under:

"11. Arbitration:

It is presumed that there will not be any dispute or difference of opinion during construction but in case anything of this sort creeps in, the same will be settled/reconciled as per normal Arbitration procedure. The Arbitration committee shall comprise of one Arbitrator from each side and third to be mutually agreed to be Chairman of the arbitration committee. The Act of Arbitration shall be of Indian Arbitrator Act."

In pursuance of the aforesaid arbitration Clause, a dispute was raised about the payment of the price escalation from 2008 onwards. This correspondence is also annexed at Annexure7 onwards of the rejoinder affidavit filed by the petitioner. It is submitted by learned counsel for the petitioner that despite repeated requests, no Arbitrator has been appointed and, 2 therefore, present application has been preferred. It is also submitted by the learned counsel for the petitioner that the claim of the petitioner is live and there is arbitration Clause between the parties to the agreement and, therefore, let this Court appoint Arbitrator under Subsection 6 of Section 11 of the Arbitration and Conciliation Act, 1996.

3. Learned counsel for the respondents submitted that the agreement entered into between the parties brought to an end on 20th February, 2007 and the claim made by the petitioner is not a live claim, at all. Learned counsel for the respondents by relying upon the decision rendered by Hon'ble the Supreme Court as reported in (2005) 8 SCC 618 submitted that no Arbitrator may be appointed by this Court.

4. Having heard learned counsel for both the sides and looking to the facts and circumstances of the case, it appears that:

(i) An agreement has been entered into between the parties. The said agreement is dated 2nd August, 2002, which is at Annexure1 to the memo of this application.

(ii) It further appears that there is arbitration Clause, as stated hereinabove, which is Clause no. 11.

(iii) The petitioner is a party to the agreement and has raised dispute about price escalation. The time limit to complete construction has been extended. Previously, there was no limit of price escalation, but, now for the extended period, price escalation has been given maximum @ 10% of total value. The gap of 10% maximum price escalation has caused lot of disputes between the parties.

(iv) Looking to the correspondence between the parties from June 2008 onwards, which is at Annexure7 to the rejoinder affidavit, it cannot be said that there is no live claim of the petitioner with the respondents. I hereby direct the respondents to appoint one Arbitrator of its side. So far as appointment of Arbitrator from the petitioner's side is concerned, it has already given a name of retired Hon'ble Mr. Justice <NAME>, <ORG>, <ORG>, Ranchi (Jharkhand) and as per Clause no. 11, as stated hereinabove, both learned Arbitrator will appoint a Chairman. The exercise of appointment of the Arbitrator will be completed by the respondents within a period of six weeks from today and, thereafter, within further period of two weeks, both the learned Arbitrator shall appoint a Chairman of <ORG>. <ORG> is, hereby, requested to decide the dispute between the parties within a period of six weeks from the commencement of the arbitration proceeding.

5. In view of the aforesaid directions, this arbitration application is allowed and disposed of.

(<NAME>, J.) Ajay/


IN THE HIGH COURT OF <ORG> PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 17TH DAY OF JULY2013/26TH ASHADHA, 1935 RSA.No. 621 of 2013 () --------------------------- AGAINST THE JUDGMENT IN AS 3/2012 of DISTRICT COURT,THODUPUZHA DATED 12-11-2012 AGAINST THE JUDGMENT IN OS 193/2006 of MUNSIFF COURT,THODUPUZHA DATED 24-09-2008 APPELLANT(S)/APPELLANTS/APPELLANTS/DEFENDANTS: ------------------------------------------------------------------------------------------ 1. K.J.SEBASTIAN AGED 61 YEARS S/O.LATE JOHN, KANDATHIKUDY HOUSE, NEYYASSERY KARA NEYYASSERY VILLAGE, THODUPUZHA 2. K.J <NAME>, AGED 66 YEARS S/O.LATE JOHN, KANDATHIKUDY HOUSE, NEYYASSERY KARA NEYYASSERY VILLAGE, THODUPUZHA BY ADVS.SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN RESPONDENT(S)/RESPONDENT/RESPONDENT/PLAINTIFF: ------------------------------------------------------------------------------------ K.V.SEBASTIAN S/O.VARKEY, KANDATHIKUDY HOUSE, NEYYASSERY KARA NEYYASSERY VILLAGE, THODUPUZHA 685 581 BY ADV. SRI.<NAME> THOMAS (MEVADA)(SR.) BY ADV. <NAME> BY ADV. SRI.MANU <NAME> KURUVILLA BY ADV. SMT.RINU JOSE THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: das N.K.BALAKRISHNAN, J. ========================== R.S.A. No. 621 of 2013 =================================== Dated this the 17th day of July, 2013 JUDGMENT

Defendants are the appellants. The suit was decreed by the trial court restraining the defendants and their men from trespassing into the plaint A schedule property and from widening the B schedule road and committing any acts of waste or mischief in the property. The appellate court confirmed the decree and judgment and the appeal was dismissed.

2. The plaintiff contended that the plaintiff has title and possession over the B schedule property and that in 1991 the plaintiff formed a road in the remaining portion of the B schedule and allowed the defendants to take vehicles in case of necessity. There is an Anjili tree situated in the north-west corner of the A schedule property. The defendants attempted to cut and remove that tree. They have no right over the same.

3. Defendants resisted the suit contenting that the plaintiff and the father of the defendants jointly purchased the property to construct a road to the house of the defendants and thereafter a road having a width of 12 feet was constructed upto R.S.A.No. 621/2013 the house of the defendants through the property of the plaintiff. It was also contended that the said road was constructed by utilising 4 feet Thondu (Mud wall) existing therein. Thus according to the defendants, since 1979, the road has been used by the defendants for vehicular traffic. It was also contended that to protect the Anjili tree, defendants have purchased = cent of land from one <NAME>, who is holding the property on the northern side. The evidence was adduced by both sides. The courts below decreed the suit negativing the contentions raised by the defendants.

4. The appellate court had a reappraisal of the entire evidence and concurred with the view taken by the trial court and the appeal was dismissed.

5. The learned counsel for the appellants submits that admittedly another suit was filed by the respondents and that the observations made by the lower appellate court may prejudice to the right of the appellants from defending that suit. It was found that in view of the contentions raised by the defendants a senior lawyer was appointed as the Advocate Commissioner and a Taluk Surveyor was also appointed to identify the property. Hence, R.S.A.No. 621/2013 there could be no complaint regarding the acceptability of the report and plan submitted by the Commissioner. Ext.C4 and C4

(a) were accepted by the courts below. The Commissioner's report and plan would show that the Anjili tree actually falls in the property of the plaintiff. That was not seriously disputed before the appellate court also. The lower appellate court observed that there was no issue regarding the user of the pathway and that the right of user of the pathway was not an issue in that suit. It was further observed by the lower appellate court that:

There was no finding recorded by the court below regarding this right in the judgment as well. The counsel for the appellants has no grievance in confirming the decree for prohibitory injunction granted by the court below as they have no intention to widen the plaint B schedule property or commit any act of waste in the property and they have no intention to trespass into the plaint A schedule property or cut and remove any anjili tree as it was found to be in the property of the plaintiff. So under the circumstances, I feel that a clarification can be made in the judgment that the right of the defendants to raise plea of right of user of the pathway as of right as claimed by them in the written statement in the subsequent suit O.S. 121/2009 pending before <ORG>, Thodupuzha and also the right of the plaintiff to raise the plea as to whether it was only a licence and withdrawal of the counter claim will operate as res judicata against the defendants from raising that plea in the subsequent suit and considering these issues independently by the lower court are not affected and the court can consider those issues independently on the basis of evidence.

R.S.A.No. 621/2013 The learned counsel for the appellants submits that the aforesaid observations may prejudice the appellants in the other pending suit. In fact, if at all the clarification/observation would only help the appellants. Admittedly the appellant had withdrawn the counter claim. The observations made as above by the lower appellate court will not in any way prejudice the parties in O.S.121/2009, since that suit has to be decided based on the pleadings and evidence adduced in that case. As there is a concurrent finding that the plaintiff is entitled to the injunction sought for, I find no reason to interfere with the same. No substantial question of law arises. Hence, this R.S.A is dismissed.

Sd/-

N.K.BALAKRISHNAN, JUDGE das // True copy // PA to Judge


CASE NO.: Writ Petition (civil) 509 of 1997 PETITIONER: RUPA ASHOK HURRA RESPONDENT: ASHOK HURRA & ANR. DATE OF JUDGMENT: 10/04/2002 BENCH: S.P.BHARUCHA CJI & S.S.M.QUADRI & U.C.BANERJEE & S.N.VARIAVA & S.V.PATIL JUDGMENT:

JUDGMENT WI T H Writ Petition (civil)108 of 1999 (W.P.(C)No.245/1999, W.P.(C) No.338/2000, W.P.(C) Nos.325-326/2000,W.P.(C)No.663/2000, W.P.(C)No.680/2000, W.P.(C) No.374/2001) DELIVERED BY:

S.S.M.QUADRI, J.

<NAME>J.

<NAME>, J.

These writ petitions have come up before us as a Bench of three learned Judges of this Court referred the first mentioned writ petition to a Constitution Bench observing thus :

"Whether the judgment of this Court dated March 10, 1997 in Civil Appeal No.1843 of 1997 can be regarded as a nullity and whether a writ petition under Article 32 of the Constitution can be maintained to question the validity of a judgment of this Court after the petition for review of the said judgment has been dismissed are, in our opinion, questions which need to be considered by a Constitution Bench of this Court."

The other writ petitions were tagged to that case.

In these cases the following question of constitutional law of considerable significance arises for consideration : whether an aggrieved person is entitled to any relief against a final judgment/order of this <ORG>, after dismissal of review petition, either under Article 32 of the Constitution or otherwise.

In our endeavour to answer the question, we may begin with noticing that <ORG> is established by Article 124 of the Constitution which specifies its jurisdiction and powers and enables <ORG> to confer further jurisdiction and powers on it. The Constitution conferred on <ORG> original jurisdiction (Articles 32 and 131); appellate jurisdiction both civil and criminal (Articles 132, 133, 134); discretionary jurisdiction to grant special leave to appeal ( Article 136 ) and very wide discretionary powers, in the exercise of its jurisdiction, to pass decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, which shall be enforceable throughout the territory of India in the manner prescribed ( Article 142 ); powers like the power to withdraw any case pending in any <ORG> or <ORG>s to itself or to transfer any case from one <ORG> to another <ORG> ( Article 139 ) and to review judgment pronounced or order made by it ( Article 137 ). Conferment of further jurisdiction and powers is left to be provided by <ORG> by law ( Article 138 ). <ORG> is also enabled to confer further powers on <ORG> (Articles 134(2), 139, 140). Article 141 says that the law declared by <ORG> shall be binding on all courts within the territory of India and Article 144 directs that all authorities civil and judicial, in the territory of India, shall act in aid of <ORG>. It is a Court of record and has all the powers of such a Court including power to punish for contempt of itself ( Article 129 ).

Since the jurisdiction of this <ORG> under Article 32 of the Constitution is invoked in these writ petitions, we shall advert to the provisions of Article 32 of the Constitution. It is included in Part III of the Constitution and is quoted hereunder :

"32. Remedies for enforcement of rights conferred by this Part. -

(1) The right to move <ORG> by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

(2) <ORG> shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on <ORG> by clauses (1) and (2), <ORG> may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by <ORG> under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution."

A perusal of the Article, quoted above, shows it contains four clauses. Clause (1) guarantees the right to move <ORG> by appropriate proceedings for the enforcement of the rights conferred by Part III - fundamental rights. By clause (2) <ORG> is vested with the power to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari whichever may be appropriate for the enforcement of any of the rights conferred by Part III. Without prejudice to the powers of <ORG> in the aforementioned clauses (1) and (2), the <ORG> is enabled, by clause (3), to empower by law any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by <ORG> under clause (2). The constitutional mandate embodied in clause (4) is that Article 32 shall not be suspended except as otherwise provided for by the Constitution.

Inasmuch as <ORG> enforces the fundamental rights by issuing appropriate directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, it may be useful to refer to, in brief, the characterisitics of the writs in general and writ of certiorari in particular with which we are concerned here. In English law there are two types of writs -- (i) judicial procedural writs like writ of summons, writ of motion etc. which are issued as a matter of course; these writs are not in vogue in India and (ii) substantive writs often spoken of as high prerogative writs like writ of quo warranto, habeas corups, mandamus, certiorari and prohibition etc.; they are frequently resorted to in <ORG> and <ORG>. "Historically, prohibition was a writ whereby the royal courts of common law prohibited other courts from entertaining matters falling within the exclusive jurisdiction of the common law courts; certiorari was issued to bring the record of an inferior court into <ORG> for review or to remove indictments for trial in that court; mandamus was directed to inferior courts and tribunals, and to public officers and bodies, to order the performance of a public duty. All three were called prerogative writs." In England while issuing these writs, at least in theory, the assumption was that the King was present in <ORG>. The position regarding <ORG> is described thus, "of <ORG>, or of the King in <ORG> as it is sometimes expressed, the only other supreme tribunal in this country." in <NAME> Vs. <NAME> (1836 (1) Moo. P.C. 117). They are discretionary writs but the principles for issuing such writs are well defined. In the pre- constitutional era the jurisdiction to issue the prerogative writs was enjoyed only by three chartered <ORG> in India but with the coming into force of the Constitution, all the <ORG> and <ORG> are conferred powers to issue those writs under Article 226 and Article 32 , respectively, of the Constitution. In regard to the writ jurisdiction, the <ORG> in India are placed virtually in the same position as <ORG> in England. It is a well-settled principle that the technicalities associated with the prerogative writs in English Law have no role to play under our constitutional scheme. It is, however, important to note that a writ of certiorari to call for records and examine the same for passing appropriate orders, is issued by a superior court to an inferior court which certifies its records for examination. "Certiorari lies to bring decisions of an inferior court, tribunal, public authority or any other body of persons before <ORG> for review so that the court may determine whether they should be quashed, or to quash such decisions. The order of prohibition is an order issuing out of <ORG> and directed to an inferior court or tribunal or public authority which forbids that court or tribunal or authority to act in excess of its jurisdiction or contrary to law. Both certiorari and prohibition are employed for the control of inferior courts, tribunals and public authorities."

Having carefully examined the historical background and the very nature of writ jurisdiction, which is a supervisory jurisdiction over inferior Courts/Tribunals, in our view, on principle a writ of certiorari cannot be issued to co-ordinate courts and a fortiorari to superior courts. Thus, it follows that <ORG> cannot issue a writ to <ORG>; nor can one Bench of <ORG> issue a writ to a different Bench of the same <ORG>; much less can writ jurisdiction of <ORG> be invoked to seek issuance of a writ of certiorari to <ORG>. Though, the judgments/orders of <ORG>s are liable to be corrected by <ORG> in its appellate jurisdiction under Articles 132, 133 and 134 as well as under Article 136 of the Constitution, the <ORG>s are not constituted as inferior courts in our constitutional scheme. Therefore, <ORG> would not issue a writ under Article 32 to <ORG>. Further, neither a smaller Bench nor a larger Bench of <ORG> can issue a writ under Article 32 of the Constitution to any other Bench of <ORG>. It is pointed out above that Article 32 can be invoked only for the purpose of enforcing the fundamental rights conferred in Part III and it is a settled position in law that no judicial order passed by any superior court in judicial proceedings can be said to violate any of the fundamental rights enshrined in Part III. It may further be noted that the superior courts of justice do not also fall within the ambit of <ORG> or other authorities under Article 12 of the Constitution.

<CITATION> . [1966 (3) SCR 744], some journalists filed a Writ Petition in <ORG> under Article 32 of the Constitution challenging an oral order passed by <ORG>, on the Original Side, prohibiting publication of the statement of a witness given in open court, as being violative of Article 19(1)(a) of the Constitution of India. A Bench of nine learned Judges of this <ORG> considered the question whether the impugned order violated fundamental rights of the petitioners under Article 19(1)(a) and if so whether a writ under Article 32 of the Constitution would issue to <ORG>. The Bench was unanimous on the point that an order passed by this <ORG> was not amenable to the writ jurisdiction of this <ORG> under Article 32 of the Constitution. Eight of the learned Judges took the view that a judicial order cannot be said to contravene fundamental rights of the petitioners. <NAME>,J. was of the view that the Constitution does not contemplate <ORG>s to be inferior courts so their decisions would not be liable to be quashed by a writ of certiorari issued by <ORG> and held that this <ORG> had no power to issue a writ of certiorari to <ORG>. To the same effect are the views expressed by <NAME> and <NAME>, JJ. Though, in his dissenting judgment <NAME>,J. (as he then was) held that a judicial order of <ORG>, if erroneous, could be corrected in an appeal under Article 136 of the Constitution, he, nonetheless, opined that the impugned order of <ORG> committed breach of the fundamental right of freedom of speech and expression of the petitioners and could be quashed under Article 32 of the Constitution by issuing a writ of certiorari to <ORG> as subordination of <ORG> under the scheme of the Constitution was not only evident but also logical. In regard to the apprehended consequences of his proposition, the learned Judge observed :

"It was suggested that <ORG> might issue writs to this <ORG> and to other High <ORG>s and one Judge or Bench in <ORG> and <ORG> might issue a writ to another Judge or Bench in the same <ORG>. This is an erroneous assumption. To begin with <ORG> cannot issue a writ to <ORG> because the writ goes down and not up. Similarly, <ORG> cannot issue a writ to <ORG>. The writ does not go to a court placed on an equal footing in the matter of jurisdiction. Where the county court exercised the powers of <ORG>, the writ was held to be wrongly issued to it (See : In re <ORG> [1898 (1) Q.B. 669]." (Emphasis supplied) <CITATION> . [1988 (2) SCC 602], the question debated before a seven-Judge Bench of this <ORG> was whether the order dated February 16, 1984, passed by a Constitution Bench of this <ORG>, withdrawing the cases pending against the appellant in <ORG> and transferring them to <ORG> of Bombay with a request to the Chief Justice to assign them to a sitting Judge of <ORG> for holding trial from day to day. [ <CITATION>  at 243], was a valid order. It is relevant to notice that in that case the said order was not brought under challenge in a petition under Article 32 of the Constitution. Indeed, the appellant's attempt to challenge the aforementioned order of <ORG> before this <ORG> under Article 32 of the Constitution, turned out to be abortive on the view that the writ petition under Article 32 , challenging the validity of the order and judgment passed by <ORG> as nullity or otherwise incorrect, could not be entertained and that he might approach the court with appropriate review petition or any other application which he might be entitled to file in law. While so, in the course of the trial of those cases the appellant raised an objection in regard to the jurisdiction of the learned Judge of <ORG> to try the cases against him. The learned Judge rejected the objection and framed charges against the appellant, which were challenged by him by filing a Special Leave Petition to appeal before this <ORG> wherein the question of jurisdiction of <ORG> to try the cases was also raised. It was numbered as Criminal Appeal No.468 of 1986 and was ultimately referred to a seven- Judge Bench. By majority of 5 : 2 the appeal was allowed and all proceedings in the cases against the appellant before <ORG> pursuant to the said order of <ORG> dated February 16, 1984, were set aside and quashed. <NAME>, <NAME> and <NAME>, <NAME>. took the view that the earlier order of this <ORG> dated February 16, 1984 which deprived the appellant of his constitutional rights, was contrary to the provisions of the Act of 1952 and was in violation of the principles of natural justice and in the background of the said Act was without any precedent and that the legal wrong should be corrected ex debito justitiae <NAME>,J., with whom <NAME>,J., agreed, while concurring with the majority, observed that it was a duty of the <ORG> to rectify the mistake by exercising inherent powers. <NAME>,J. expressed his agreement with the view of the majority that the order was bad being in violation of Articles 14 and 21 of the Constitution. However, he held that the said order was not one such order as to be recalled because it could not be said to be based on a view which was manifestly incorrect, palpably absurd or patently without jurisdiction. In that he agreed with <NAME> (as he then was) who gave a dissenting opinion. The learned Judge held that it would be wholly erroneous to characterise the directions issued by a five-Judge Bench as a nullity liable to be ignored and so declared in a collateral attack. However, five learned Judges were unanimous that the <ORG> should act ex debito justitiae. On the question of power of <ORG> to review its earlier order under its inherent powers <NAME>, <NAME> and <NAME>,<NAME>. expressed the view that the <ORG> could do so even in a petition under Articles 136 or Article 32 of the Constitution. <NAME>,J. gave a dissenting opinion holding that the appeal could not be treated as a review petition. <NAME> (as he then was) also gave a dissenting opinion that inherent powers of the <ORG> do not confer or constitute a source of jurisdiction and they are to be exercised in aid of a jurisdiction that is already invested for correcting the decision under Article 137 read with Order XL Rule 1 of <ORG> Rules and for that purpose the case must go before the same Judges as far as practicable.

On the question whether a writ of certiorari under Article 32 of the Constitution could be issued to correct an earlier order of this Court <NAME> and <NAME>,<NAME>. concluded that the powers of review could be exercised under either Article 136 or Article 32 if there had been deprivation of fundamental rights. <NAME>, J. (as he then was) opined that no writ of certiorari was permissible as the Benches of <ORG> are not subordinate to the larger Benches of this Court. To the same effect is the view expressed by <NAME>, <NAME>, <NAME> and <NAME>,<NAME>. Thus, in that case by majority of 5 : 2 it was held that an order of <ORG> was not amenable to correction by issuance of a writ of certiorari under Article 32 of the Constitution.

<CITATION> [1989 (1) SCC 678], speaking for himself and other three learned Judges of the Constitution Bench, <NAME>, J., reiterating the same principle, observed :

"It is well settled now that a judgment of court can never be challenged under Articles 14 or 21 and therefore the judgment of the court awarding the sentence of death is not open to challenge as violating Article 14 or Article 21 as has been laid down by this <ORG> in <CITATION> and also in <CITATION> , the only jurisdiction which could be sought to be exercised by a prisoner for infringement of his rights can be to challenge the subsequent events after the final judicial verdict is pronounced and it is because of this that on the ground of long or inordinate delay a condemned prisoner could approach this <ORG> and that is what has consistently been held by this <ORG>. But it will not be open to this <ORG> in exercise of jurisdiction under Article 32 to go behind or to examine the final verdict reached by a competent court convicting and sentencing the condemned prisoner and even while considering the circumstances in order to reach a conclusion as to whether the inordinate delay coupled with subsequent circumstances could be held to be sufficient for coming to a conclusion that execution of the sentence of death will not be just and proper."

<NAME>J. expressed no opinion on this aspect.

We consider it inappropriate to burden this judgment with discussion of the decisions in other cases taking the same view. Suffice it to mention that various Benches of this Court reiterated the same principle in the following cases : [ <CITATION> . [1988 (2) SCC 602], <CITATION> . [1992 (4) SCC 605], <CITATION> [1996 (2) SCC 749], <CITATION> , <ORG> [1996 (3) SCC 114], <CITATION> . [1996 (3) SCC 117], <CITATION> . [1996 (6) SCC 565] and <CITATION> . [1998 (3) SCC 56].

It is, however, true that in <ORG> <CITATION> . [1998 (4) SCC 409], a Constitution Bench and in <CITATION> . [2000 (1) SCC 278] a three-Judge Bench, and in other cases different Benches quashed the earlier judgments/orders of this Court in an application filed under Article 32 of the Constitution. But in those cases no one joined issue with regard to the maintainability of the writ petition under Article 32 of the Constitution. Therefore, those cases cannot be read as authority for the proposition that a writ of certiorari under Article 32 would lie to challenge an earlier final judgment of this Court. On the analysis of the ratio laid down in the aforementioned cases, we reaffirm our considered view that a final judgment/order passed by this Court cannot be assailed in an application under Article 32 of the Constitution of India by an aggrieved person whether he was a party to the case or not.

In fairness to the learned counsel for the parties, we record that all of them at the close of the hearing of these cases conceded that the jurisdiction of this <ORG> under Article 32 of the Constitution cannot be invoked to challenge the validity of a final judgment/order passed by this <ORG> after exhausting the remedy of review under Article 137 of the Constitution read with Order XL Rule 1 of the Supreme <ORG> Rules 1966.

However, all the learned counsel for the parties as also the learned Attorney-General who appeared as amicus curiae, on the notice of this <ORG>, adopted an unusual unanimous approach to plead that even after exhausting the remedy of review under Article 137 of the Constitution, an aggrieved person might be provided with an opportunity under inherent powers of this <ORG> to seek relief in cases of gross abuse of the process of the <ORG> or gross miscarriage of justice because against the order of this <ORG> the affected party cannot have recourse to any other forum.

Mr.<NAME>, the learned senior counsel appearing for the petitioner, submitted that the principle of finality of the order of this <ORG> had to be given a go-by and the case re- examined where the orders were passed without jurisdiction or in violation of the principles of natural justice, violation of any fundamental rights or where there has been gross injustice. He invited our attention to Order XLVII, Rule 6 of the Supreme <ORG> Rules, 1966 and submitted that this <ORG> had inherent jurisdiction and that cases falling in the aforementioned categories should be examined under the inherent jurisdiction of this <ORG>. According to the learned counsel Article 129 would not be available to correct a judgment of this <ORG> but he pleaded that as from the order of <ORG> no appeal would lie, therefore, an application, by whatever name called, which should be certified by a senior counsel in regard to existence of permissible ground, has to be entertained on any of the aforementioned grounds to correct a judgment of this <ORG>. He cited <NAME>'s case, <ORG> case and <NAME>'s case as instances in which this <ORG> had corrected its earlier judgments. He advocated : (i) for oral hearing on such an application and (ii) for hearing by a Bench of Judges other than those who passed the order on the ground that it would inspire confidence in the litigant public. Mr.<NAME>, the learned senior counsel, while adopting the arguments of Mr.<NAME> submitted that the provisions of Order XLVII, Rule 6 of the Supreme <ORG> Rules, is a mere restatement of the provisions of Article 137 of the Constitution and that the inherent jurisdiction of this <ORG> might be exercised to remedy the injustice suffered by a person. He suggested that <ORG> consisting of senior judges and the judges who passed the order under challenge, could be formed to consider the application seeking correction of final orders of this <ORG>. He added that to ensure that floodgates are not opened by such a remedy, an application for invoking the inherent power of this <ORG> might require that it should be certified by a senior advocate and in case of frivolous application the petitioner could be subjected to costs. He relied on the judgment of United States in United States of America Vs. <ORG> [1 Lawyers' Ed. 2d 683] to show that in every jurisdiction the courts have corrected their own mistakes. He cited the judgment of this <ORG> in <NAME> Vs. State of Uttar Pradesh & Ors. [1982 (2) SCC 101] to show that even after the dismissal of the Review Petition the Supreme <ORG> reconsidered its own judgment; he pleaded for laying down guidelines in regard to entertaining such an application. Mr.<NAME>, the learned senior counsel, submitted that Article 129 of the Constitution declared this <ORG> to be a court of record so it would have inherent powers to pass appropriate orders to undo injustice to any party resulting from judgments of this <ORG>. He relied on the judgment of this <ORG> in <ORG> case (supra) to show that such a power was exercised by this <ORG> and pleaded to fashion appropriate procedure for entertaining application to reconsider earlier judgment of this <ORG> at the instance of an aggrieved person to do justice to the parties.

The learned Attorney-General argued that the remedy provided under Article 32 of the Constitution would not be available to a person aggrieved by the final order of this <ORG>; he nonetheless supported the contentions urged by other learned counsel that in case of gross miscarriage of justice, this <ORG> ought to exercise its inherent powers by entertaining an application to examine the final order of this <ORG>, even when a review was rejected, in the rarest of the rare cases. According to him where the order was passed without jurisdiction or in violation of the principles of natural justice, the case would fall in the rarest of the rare cases. He, however, contended that an order of this <ORG> could not be said to violate fundamental rights conferred under Part III of the Constitution and, therefore, on that ground no relief could be claimed. He submitted that under Article 137 read with Order XL Rule 1 of the Supreme <ORG> Rules, 1966 review of an order of this <ORG> is provided which will be considered by the same Bench unless the same Judges are not available by reason of demitting the office. In regard to reconsideration of the judgment under the inherent power of the <ORG> he referred to the judgment of the Federal <ORG> in <NAME> Vs. <NAME> & Ors. etc. [1940 (2) FCR 78]. He submitted that for correction of a final judgment of this <ORG> on the ground of lack of jurisdiction or violation of principle of natural justice, a curative petition could be entertained which might be heard by an appropriate Bench composed of the senior Judges as well as Judges who passed the order.

Dr.<NAME>, the learned senior counsel, argued that since <ORG> is the creature of the Constitution so the corrective power has to be derived from the provisions conferring jurisdiction on <ORG> like Articles 32 and 129-140; such a power does not arise from an abstract inherent jurisdiction. The corrective power must be exercised so as to correct an injustice in a case of patent lack of jurisdiction in a narrow sense, not in the Anisminic's broader sense, and gross violation of natural justice. Relying on the judgment of <ORG> in R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte <NAME> (No.2)'s case [1999 (1) All ER 577] he has submitted that this <ORG> has inherent power to correct its own judgment where a party through no fault of his own has been subjected to an unfair procedure giving scope for bias. His further contention is that the corrective power is a species of the review power and Articles 129, 137, Order XL Rule 5 and Order XLVII Rules 1 and 6 indicate that this <ORG> has inherent power to set right its own judgment. He referred to the decisions of this <ORG> in <NAME>'s case, Supreme <ORG> Bar Association's case, <NAME>'s case and <NAME>'s case (supra) to impress upon us that this <ORG> has earlier exercised this power. He submitted that <ORG> can also issue practice direction in that behalf.

Mr. <NAME>, the learned senior counsel, invited our attention to various provisions of the Constitution dealing with different types of jurisdictions of this <ORG> and advocated that in case of manifest illegality and palpable injustice this <ORG> under its inherent powers could reconsider final judgment/order passed by this <ORG>. He submitted that the composition of the Bench might include senior-most Judges along with the Judges who passed the order, if available. It is also his submission that while considering such curative petitions on the ground of manifest illegality and palpable injustice, in the rarest of rare cases, factors like the doctrine of stare decisis and the finality and the certainty of the law declared by this <ORG> are required to be kept in mind. He referred to the judgment of this <ORG> rendered by seven learned Judges in <ORG> vs. Commissioner of Income-Tax Bombay North [1965 (2) SCR 908], which was followed by another Bench of seven learned Judges reported in <CITATION> . [1974 (2) SCC 402] and by a Bench of five learned Judges in the case of <ORG> vs. The Commissioner of Income-tax, West Bengal, Calcutta [1972 (2) SCC 150]. He stressed that the power of re-consideration of an earlier decision had to be very restricted; when the power of review is very limited and circumscribed as is evident from the decision of the Constitution Bench in Cauvery Water Disputes Tribunal [1993 Suppl.(1) SCC 96] and the Bench of three learned Judges in <CITATION> . [1993 Suppl.(4) SCC 595] and in <NAME> vs. State of Assam [2001 (5) SCC 714] by three learned Judges and in the case of <CITATION> . [2000 (6) SCC 224] the exercise of inherent power for correcting the manifest illegality and palpable injustice after dismissal of the review petition has to be much narrower than the power of review. These contentions pose the question, whether an order passed by this <ORG> can be corrected under its inherent powers after dismissal of the review petition on the ground that it was passed either without jurisdiction or in violation of the principles of natural justice or due to unfair procedure giving scope for bias which resulted in abuse of the process of the <ORG> or miscarriage of justice to an aggrieved person. There is no gainsaying that the Supreme <ORG> is the <ORG> of last resort - the final <ORG> on questions both of fact and of law including constitutional law. The law declared by this <ORG> is the law of the land; it is precedent for itself and for all the courts/tribunals and authorities in India. In a judgment there will be declaration of law and its application to the facts of the case to render a decision on the dispute between the parties to the lis. It is necessary to bear in mind that the principles in regard to the highest <ORG> departing from its binding precedent are different from the grounds on which a final judgment between the parties, can be reconsidered. Here, we are mainly concerned with the latter. However, when reconsideration of a judgment of this <ORG> is sought the finality attached both to the law declared as well as to the decision made in the case, is normally brought under challenge. It is, therefore, relevant to note that so much was the value attached to the precedent of the highest court that in <ORG> Vs. <ORG> [LR 1898 Appeal Cases 375], <ORG> laid down that its decision upon a question of law was conclusive and would bind the <ORG> in subsequent cases and that an erroneous decision could be set right only by an Act of <ORG>.

In <NAME> & <NAME>. Vs. Commissioner of Taxation [LR 1926 AC 155 at 165], Lord <NAME> observed :

"Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the <ORG> of the legal result..... If this were permitted litigation would have no end, except when legal ingenuity is exhausted."

To the same effect is the view expressed by <ORG> in <NAME> case (supra) placing reliance on dicta of <ORG> in <NAME> vs. Court of Wards [1886 (II) Appeal Cases 660 at 664]. <NAME>, CJ. speaking for <ORG> observed :

"This <ORG> will not sit as a court of appeal from its own decisions, nor will it entertain applications to review on the ground only that one of the parties in the case conceives himself to be aggrieved by the decision. It would in our opinion be intolerable and most prejudicial to the public interest if cases once decided by the <ORG> could be re-opened and re-heard : "There is a salutary maxim which ought to be observed by all <ORG>s of last resort -- Interest reipublicae ut sit finis litium . Its strict observance may occasionally entail hardship upon individual litigants, but the mischief arising from that source must be small in comparison with the great mischief which would necessarily result from doubt being thrown upon the finality of the decisions of such a tribunal as this."

In <NAME> case (supra), an application was filed by the <ORG> for clarification of the order passed earlier. It was urged by the petitioner that any modification or recalling of the order passed by this Court would result in destroying the principle of finality enshrined in Article 141 of the Constitution. <NAME>, <NAME> speaking for himself and for <NAME>,<NAME> observed :

"Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the <ORG> should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice."

The learned Judge referring to the judgment of <NAME> case (supra) further observed : "Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice."

The position with regard to conclusive nature of the precedent obtained in England till the following practice statement was made by Lord <NAME>, L.C. in <ORG> Vs. <NAME> and <NAME>. [Note 1966 (3) All E.R. 77] on behalf of himself and the Lords of Appeal in Ordinary, "They propose therefore to modify their present practice and, while treating former decisions of this <ORG> as normally binding, to depart from a previous decision when it appears right to do so." The principle in regard to departing from an earlier view by the <ORG>, after the said practice statement, is reflected in the speech of Lord <NAME> in <NAME> Vs. Secretary of <ORG> for Social Services, <NAME> Vs. Secretary of <ORG> for Social Services (conjoined appeals) [1972 (1) All E.R. 145], who observed:

"The old view was that any departure from rigid adherence to precedent would weaken that certainty. I did not and do not accept that view. It is notorious that where an existing decision is disapproved but cannot be overruled courts tend to distinguish it on inadequate grounds. I do not think that they act wrongly in so doing; they are adopting the less bad of the only alternatives open to them. But this is bound to lead to uncertainty for no one can say in advance whether in a particular case the court will or will not feel bound to follow the old unsatisfactory decision. On balance it seems to me that overruling such a decision will promote and not impair the certainty of the law.

But that certainty will be impaired unless this practice is used sparingly. I would not seek to categorise cases in which it should or cases in which it should not be used. As time passes experience will supply some guide. But I would venture the opinion that the typical case for reconsidering an old decision is where some broad issue is involved, and that it should only be in rare cases that we should reconsider questions of construction of statutes or other documents."

In <ORG> Vs. <NAME> (Inspector of Taxes) [1977 (3) All E.R. 996] Lord <NAME> observed : "My Lords, in my firm opinion, the 1966 Practice Statement was never intended to allow and should not be considered to allow such a course. Nothing could be more undesirable, in fact, than to permit litigants, after a decision has been given by this <ORG> with all appearance of finality, to return to this <ORG> in the hope that a differently constituted committee might be persuaded to take the view which its predecessors rejected. True that the earlier decision was by majority : I say nothing as to its correctness or as to the validity of the reasoning by which it was supported. That there were two eminently possible views is shown by the support for each by at any rate two members of the <ORG>. But doubtful issues have to be resolved and the law knows no better way of resolving them than by the considered majority opinion of the ultimate tribunal. It requires much more than doubts as to the correctness of such opinion to justify departing from it."

Lord <NAME> observed :

"My Lords, I respectfully share your views that the Chancery Lane decision [1966 (1) All.E.R. 1] was correct. But even had I come to the opposite conclusion, the circumstances adverted to are such that I should not have thought it 'right' to depart from it now. To do so would have been to open the floodgates to similar appeals and thereby to impair that reasonable certainty in the law which the Practice Statement [Note 1966 (3) All E.R. 77] itself declared to be 'an indispensable foundation upon which to decide what is the law and its application to individual cases'."

The law existing in other countries is aptly summarised by <NAME> in his treatise thus :

"The authority to overrule exists in most countries, whether of civil law or common law tradition. Even the <ORG> in the United Kingdom is not bound any more by its precedents. <ORG> of the United States was never bound by its own decisions, and neither are those of Canada, Australia, and Israel."

To what extent the principle of stare decisis binds this <ORG>, was considered in the case of <ORG> (supra). The question before <ORG> Seven learned Judges of this <ORG> was : to what extent the principle of stare decisis could be pressed into service where the power of this <ORG> to overrule its earlier decisions was invoked. The <ORG> expressed its view thus :

"When this <ORG> decides questions of law, its decisions are, under Article 141 , binding on all courts within the territory of India, and so, it must be the constant endeavour and concern of this <ORG> to introduce and maintain an element of certainty and continuity in the interpretation of law in the country. Frequent exercise by this <ORG> of its power to review its earlier decisions on the ground that the view pressed before it later appears to the <ORG> to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. That is not to say that if on a subsequent occasion, the <ORG> is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error; but before a previous decision is pronounced to be plainly erroneous, the <ORG> must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified. It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should govern the approach of the <ORG> in dealing with the question of reviewing and revising its earlier decisions."

In <NAME> case (supra), a Bench of seven learned Judges of this Court considered, inter alia, the question : whether a judgment of <ORG> in Northern India Caterers' case was required to be overruled. <NAME>, J. observed :

"At the same time, it has to be borne in mind that certainty and continuity are essential ingredients of rule of law. Certainty in law would be considerably eroded and suffer a serious set back if the highest court of the land readily overrules the view expressed by it in earlier cases, even though that view has held the field for a number of years. In quite a number of cases which come up before this <ORG>, two views are possible, and simply because the <ORG> considers that the view not taken by the <ORG> in the earlier case was a better view of the matter would not justify the overruling of the view. The law laid down by this <ORG> is binding upon all courts in the country under Article 141 of the Constitution, and numerous cases all over the country are decided in accordance with the view taken by this <ORG>. Many people arrange their affairs and large number of transactions also take place on the faith of the correctness of the view taken by this <ORG>. It would create uncertainty, instability and confusion if the law propounded by this <ORG> on the basis of which numerous cases have been decided and many transactions have taken place is held to be not the correct law."

In the case of <ORG> (supra), the question before <ORG> of five learned Judges was : when can this Court properly dissent from a previous view?

In regard to the effect of an earlier order of this Court <NAME>, <NAME> speaking for <ORG> observed in <ORG> case (supra) as follows :

"The decision of this Court on a question of law is binding on all courts and authorities. Hence under the said clause the President can refer a question of law only when this court has not decided it.

Secondly, a decision given by this <ORG> can be reviewed only under Article 137 read with Rule 1 of Order XL of the Supreme <ORG> Rules, 1966 and on the conditions mentioned therein. When, further, this <ORG> overrules the view of law expressed by it in an earlier case, it does not do so sitting in appeal and exercising an appellate jurisdiction over the earlier decision. It does so in exercise of its inherent power and only in exceptional circumstances such as when the earlier decision is per incuriam or is delivered in the absence of relevant or material facts or if it is manifestly wrong and productive of public mischief. [See : <ORG> Vs. State of Bihar (1955 (2) S.C.R. 603)] In the cases of <NAME> (supra) and <NAME> (supra), the question before the <ORG> was, the scope of the power of review of a judgment of this <ORG> under Article 137 of the Constitution read with Section 114, Order XLVII of the C.P.C. and Order XL Rule 1 of the Supreme <ORG> Rules, 1966.

In the case of Ex parte <NAME> (No 2) (supra), on November 25, 1998 <ORG> by majority 3 : 2 restored warrant of arrest of Senator <NAME> who was the Head of the State of Chile and was to stand trial in Spain for some alleged offences. It came to be known later that one of the Law Lords (Lord <NAME>), who heard the case, had links with <ORG> (A.I.) which had become a party to the case. This was not disclosed by him at the time of the hearing of the case by the <ORG>. <NAME>, on coming to know of that fact, sought reconsideration of the said judgment of <ORG> on the ground of an appearance of bias not actual bias. On the principle of disqualification of a judge to hear a matter on the ground of appearance of bias it was pointed out, "The principle that a judge was automatically disqualified from hearing a matter in his own cause was not restricted to cases in which he had a pecuniary interest in the outcome, but also applied to cases where the judge's decision would lead to the promotion of a cause in which the judge was involved together with one of the parties. That did not mean that judges could not sit on cases concerning charities in whose work they were involved, and judges would normally be concerned to recuse themselves or disclose the position to the parties only where they had an active role as trustee or director of a charity which was closely allied to and acting with a party to the litigation. In the instant case, the facts were exceptional in that <ORG> was a party to the appeal, it had been joined in order to argue for a particular result and the Law Lord was a director of a charity closely allied to <ORG> and sharing its objects. Accordingly, he was automatically disqualified from hearing the appeal. The petition would therefore be granted and the matter referred to another committee of the <ORG> for rehearing per curiam"

On the point of jurisdiction of the <ORG> to correct any injustice in an earlier order, it was observed : "In principle it must be that your Lordships, as the ultimate court of appeal, have power to correct any injustice caused by an earlier order of this <ORG>. There is no relevant statutory limitation on the jurisdiction of the <ORG> in this regard and therefore its inherent jurisdiction remains unfettered. In <ORG> v <NAME> (No.2) [1972 (2) All ER 849 = 1972 AC 1136] your Lordships varied an order for costs already made by the <ORG> in circumstances where the parties had not had a fair opportunity to address argument on the point."

And it was held, "An appeal to <ORG> will only be reopened where a party through no fault of its own, has been subjected to an unfair procedure. A decision of <ORG> will not be varied or rescinded merely because it is subsequently thought to be wrong."

We may notice here that in these cases except in <NAME> (supra) and Ex parte <NAME> (No.2) (supra), the question was in what circumstances the ratio in the earlier judgment of the highest court having precedent value could be departed. In the aforementioned two cases the decision was rendered on an application seeking reconsideration of the final judgment of <ORG> and <ORG> respectively. In view of the specific provision of Article 137 of the Constitution read with Order XL Rule 1 of the Supreme <ORG> Rules, conferring power of review on this <ORG>, the problem in entertaining a review petition against its final judgment which its precursor - <ORG> - had to face, did not arise before this <ORG>.

The petitioners in these writ petitions seek re- consideration of the final judgments of this <ORG> after they have been unsuccessful in review petitions and in that these cases are different from the cases referred to above. The provision of Order XL Rule 5 of the Supreme <ORG> Rules bars further application for review in the same matter. The concern of the <ORG> now is whether any relief can be given to the petitioners who challenge the final judgment of this <ORG>, though after disposal of review petitions, complaining of the gross abuse of the process of <ORG> and irremedial injustice. In a State like India, governed by rule of law, certainty of law declared and the final decision rendered on merits in a lis between the parties by the highest court in the country is of paramount importance. The principle of finality is insisted upon not on the ground that a judgment given by the apex <ORG> is impeccable but on the maxium "Interest reipublicae ut sit finis litium At one time adherence to the principle of stare decisis was so rigidly followed in the courts governed by the English Jurisprudence that departing from an earlier precedent was considered heresy. With the declaration of the practice statement by <ORG>, the highest court in England was enabled to depart from a previous decision when it appeared right to do so. The next step forward by the highest court to do justice was to review its judgment inter partie to correct injustice. So far as this <ORG> is concerned, we have already pointed out above that it has been conferred the power to review its own judgments under Article 137 of the Constitution. The role of judiciary merely to interpret and declare the law was the concept of bygone age. It is no more open to debate as it is fairly settled that the courts can so mould and lay down the law formulating principles and guidelines as to adapt and adjust to the changing conditions of the society, the ultimate objective being to dispense justice. In the recent years there is a discernable shift in the approach of the final courts in favour of rendering justice on the facts presented before them, without abrogating but by-passing the principle of finality of the judgment. In <ORG> and Anr. etc. Vs. <NAME> (Dead) by Lrs. etc. etc. [1989 (2) SCC 754] <NAME>, CJ. speaking for <ORG> aptly observed :

"But like all principles evolved by man for the regulation of the social order, the doctrine of binding precedent is circumscribed in its governance by perceptible limitations, limitations arising by reference to the need for re-adjustment in a changing society, a re-adjustment of legal norms demanded by a changed social context. This need for adapting the law to new urges in society brings home the truth of the <NAME>ian aphorism that "the life of the law has not been logic it has been experience"(Oliver Wendell <NAME> : The Common Law, p.5), and again when he declared in another study (Oliver Wendell <NAME> : Common Carriers and the Common Law, (1943) 9 Curr LT 387, 388) that "the law is forever adopting new principles from life at one end", and "sloughing off" old ones at the other. Explaining the conceptual import of what <NAME> had said, <NAME> elaborated that it is by the introduction of new extra-legal propositions emerging from experience to serve as premises, or by experience-guided choice between competing legal propositions, rather than by the operation of logic upon existing legal propositions, that the growth of law tends to be determined (<NAME> : Legal Systems & Lawyers Reasoning, pp.58-59)"

The concern of this <ORG> for rendering justice in a cause is not less important than the principle of finality of its judgment. We are faced with competing principles - ensuring certainty and finality of a judgment of the <ORG> of last resort and dispensing justice on reconsideration of a judgment on the ground that it is vitiated being in violation of the principle of natural justice or apprehension of bias due to a Judge who participated in decision making process not disclosing his links with a party to the case, or abuse of the process of the court. Such a judgment, far from ensuring finality, will always remain under the cloud of uncertainty. Almighty alone is the dispenser of absolute justice - a concept which is not disputed but by a few. We are of the view that though Judges of the highest <ORG> do their best, subject of course to the limitation of human fallibility, yet situations may arise, in the rarest of the rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of. In such case it would not only be proper but also obligatory both legally and morally to rectify the error. After giving our anxious consideration to the question we are persuaded to hold that the duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty of judgment as though it is essentially in public interest that a final judgment of the final court in the country should not be open to challenge yet there may be circumstances, as mentioned above, wherein declining to reconsider the judgment would be oppressive to judicial conscience and cause perpetuation of irremediable injustice. It may be useful to refer to the judgment of the Supreme <ORG> of United States in <ORG> case (supra). In that case the <ORG> of Claims entered judgment for refund of tax, alleged to have been overpaid, in favour of the tax payer. On the application of the Government a writ of certiorari against that judgment was declined by the Supreme <ORG> of United States in October 1955. The Government sought re- hearing of the case by filing another application which was dismissed in December 1955. A second petition for hearing was also rejected in May 1956. However, in June 1956 the order passed in December 1955 was set aside sua sponte (of its own motion) and that case was ordered to be heard along with two other pending cases in which the same question was presented. In those two cases the Supreme <ORG> held against the tax payer and, on the authority of that judgment, reversed the judgment of the <ORG> of Claims. Four learned members of the <ORG>, in per curiam opinion, rested the decision "on the ground of interest in finality of the decision must yield where the interest of justice so required". Three learned members dissented and held that denial of certiorari had become final and ought not to be disturbed. Two learned members, however, did not participate.

This Court in <NAME> case (supra), on an application under Article 32 of the Constitution filed after the dismissal of special leave petition and the review, reconsidered its judgment. In that case, among others, the petitioner and another person were convicted under Section 302 of I.P.C. and sentenced to death. In the case of one of the remaining two convicts, <ORG> commuted the death sentence to life imprisonment. While staying the death sentence of the petitioner, <ORG>, J. in his concurring opinion, noticed the dismissal of the petitioner's special leave, review petitions and the petition for clemency by the President and observed :

"Very wide powers have been conferred on this <ORG> for due and proper administration of justice. Apart from the jurisdiction and powers conferred on this <ORG> under Articles 32 and 136 of the Constitution, I am of the opinion that this <ORG> retains and must retain, an inherent power and jurisdiction for dealing with any extraordinary situation in the larger interests of administration of justice and for preventing manifest injustice being done. This power must necessarily be sparingly used only in exceptional circumstances for furthering the ends of justice."

In <NAME>'s case (supra), the majority in <ORG> of this Court set aside an earlier judgment of <ORG> in a collateral proceeding on the view that the order was contrary to the provisions of the Act of 1952; in the background of that Act without precedent and in violation of the principles of natural justice, which needed to be corrected ex debito justitiae.

In <ORG> case (supra), on an application filed under Article 32 of the Constitution of India, the petitioner sought declaration that <ORG> set up under the Advocates Act , 1961, alone had exclusive jurisdiction to inquire into and suspend or debar an advocate from practising law for professional or other misconduct and that <ORG> or any High Court in exercise of its inherent jurisdiction had no such jurisdiction, power or authority in that regard. <ORG> of this Court considered the correctness of the judgment of this Court in Re: <NAME> []. The question which fell for consideration of this Court was : whether the punishment of debarring an advocate from practice and suspending his licence for a specified period could be passed in exercise of power of this Court under Article 129 read with Article 142 of the Constitution of India. There an errant advocate was found guilty of criminal contempt and was awarded the punishment of simple imprisonment for a period of six weeks and was also suspended from practice as an advocate for a period of three years from the date of the judgment of this Court for contempt of <ORG> of Allahabad. As a result of that punishment all elective and nominated offices/posts then held by him in his capacity as an advocate had to be vacated by him. Elucidating the scope of the curative nature of power conferred on <ORG> under Article 142 , it was observed :

"The plenary powers of <ORG> under Article 142 of the Constitution are inherent in the <ORG> and are complementary to those powers which are specifically conferred on the <ORG> by various statutes though are not limited by those statutes. These powers also exist independent of the statutes with a view to do complete justice between the parties. These powers are of very wide amplitude and are in the nature of supplementary powers. This power exists as a separate and independent basis of jurisdiction apart from the statutes. It stands upon the foundation and the basis for its exercise may be put on a different and perhaps even wider footing, to prevent injustice in the process of litigation and to do complete justice between the parties. This plenary jurisdiction is, thus, the residual source of power which <ORG> may draw upon as necessary whenever it is just and equitable to do so and in particular to ensure the observance of the due process of law, to do complete justice between the parties, while administering justice according to law. It is an indispensable adjunct to all other powers and is free from the restraint of jurisdiction and operates as a valuable weapon in the hands of <ORG> to prevent "clogging or obstruction of the stream of justice"."

Inspite of the width of power conferred by Article 142 , <ORG> took the view that suspending the advocate from practice and suspending his licence was not within the sweep of the power under the said Article and overruled the judgment in Re <NAME>'s case (supra).

In <NAME>'s case (supra), the petitioner, who was found guilty of forging signatures and making false statements at different stages before this Court, was inflicted punishment under Section 193  in <CITATION> [1996 (7) SCC 397]. He filed an application under Article 32 of the Constitution assailing the validity of that order. Taking note of the complaint of miscarriage of justice by <ORG> in ordering his incarceration which ruined his career, acting without jurisdiction or without following the due procedure, it was observed that to perpetuate an error was no virtue but to correct it was a compulsion of judicial conscience. The correctness of the judgment was examined and the error was rectified.

In the cases discussed above this <ORG> reconsidered its earlier judgments, inter alia, under Articles 129 and 142 which confer very wide powers on this <ORG> to do complete justice between the parties. We have already indicated above that the scope of the power of this <ORG> under Article 129 as a court of record and also adverted to the extent of power under Article 142 of the Constitution.

The upshot of the discussion in our view is that this <ORG>, to prevent abuse of its process and to cure a gross miscarriage of justice, may re-consider its judgments in exercise of its inherent power.

The next step is to specify the requirements to entertain such a curative petition under the inherent power of this <ORG> so that floodgates are not opened for filing a second review petition as a matter of course in the guise of a curative petition under inherent power. It is common ground that except when very strong reasons exist, the <ORG> should not entertain an application seeking reconsideration of an order of this <ORG> which has become final on dismissal of a review petition. It is neither advisable nor possible to enumerate all the grounds on which such a petition may be entertained.

Nevertheless, we think that a petitioner is entitled to relief ex debito justitiae if he establishes (1) violation of principles of natural justice in that he was not a party to the lis but the judgement adversely affected his interests or, if he was a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice and (2) where in the proceedings a learned Judge failed to disclose his connection with the subject-matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner.

The petitioner, in the curative petition, shall aver specifically that the grounds mentioned therein had been taken in the review petition and that it was dismissed by circulation. The curative petition shall contain a certification by a Senior Advocate with regard to the fulfillment of the above requirements.

We are of the view that since the matter relates to re- examination of a final judgment of this Court, though on limited ground, the curative petition has to be first circulated to a <ORG> of the three senior-most Judges and the Judges who passed the judgment complained of, if available. It is only when a majority of the learned Judges on this <ORG> conclude that the matter needs hearing that it should be listed before the same <ORG> (as far as possible) which may pass appropriate orders. It shall be open to the <ORG> at any stage of consideration of the curative petition to ask a senior counsel to assist it as amicus curiae. In the event of the <ORG> holding at any stage that the petition is without any merit and vexatious, it may impose exemplary costs on the petitioner.

Insofar as the present writ petitions are concerned, the <ORG> shall process them, notwithstanding that they do not contain the averment that the grounds urged were specifically taken in the review petitions and the petitions were dismissed in circulation.

The point is accordingly answered.

_________________________________________________________________________________________________________________________________________________ BANERJEE, J.

I have had the privilege of going through a very lucid expression of opinion by brother <NAME> and while recording my concurrence therewith I wish to add a few paragraphs of my own. The issue involved presently though not a concept within the ambit of doctrine of stare decisis but akin thereto to the effect as to the scope or finality of the decision of this <ORG> in the normal course of events. There cannot possibly be any manner of doubt that the matter once dealt with by this <ORG> attains a state of finality and no further grievance can be had in regard thereto. The founding fathers of the Constitution decidedly provided that the decision of this <ORG> as final, conclusive and binding final and conclusive inter-parties and binding on all. But the makers have also conferred a power of review of the Judgment of this <ORG> and the perusal of the provisions of Articles 137 and 145 makes it abundantly clear. In the event, however, a party stands aggrieved by reason of a rejection of review, the question posed as to whether a litigant thereof to suffer the onslaught for all times to come and in perpetuity when on the face of the Order it appears to be wholly without jurisdiction or in violation of natural justice a further factum of there being a bias or gross or manifest injustice, which shocks the conscience of a reasonable man: needless to record that the facts, as noticed above, are not only unwarranted but possibly in the region of impossibility or more appropriately improbable Mr. <NAME>, the learned senior counsel appearing in support of one of the matters before this Bench, has been rather emphatic in his submissions as regards the apprehension of bias and it is his contention that a mere likelihood of bias should prompt this <ORG> to allow a further consideration of the matter. Incidentally, be it noted that in all these matters, petitions under Article 32 of the Constitution have been filed with a prayer for issuance of the Writ of Certiorari. We called for the records in some of the matters, which stand concluded by decisions of this <ORG> and the principal issue thus arises as to the maintainability of a petition under Article 32 of the Constitution. There is no denial of the fact that the right exists to move this <ORG> for enforcement of the rights conferred by Part III of the Constitution and stands conferred in terms of Article 32 and the language used therein is of widest possible amplitude but as regards the issuance of writs, the view seems to be rather well settled in the negative. About four decades ago, in <CITATION> (1966) 3 SCR 744, a nine Judge Bench of this <ORG> in no uncertain terms negatived the availability of writ jurisdiction under Article 32 and with utmost clarity and felicity of expression stated:

"We are, therefore, satisfied that so far as the jurisdiction of this Court to issue writ of certiorari is concerned, it is impossible to accept the argument of the petitioners that judicial orders passed by <ORG> in or in relation to proceedings pending before them, are amenable to be corrected by exercise of the said jurisdiction. We have no doubt that it would be unreasonable to attempt to rationalise the assumption of jurisdiction by this Court under Art. 32 to correct such judicial orders on the fanciful hypothesis that <ORG> may pass extravagant orders in or in relation to matters pending before them and that a remedy by way of a writ of certiorari should, therefore, be sought for and be deemed to be included within the scope of Art.

32. The words used in Art. 32 are no doubt wide; but having regard to the considerations which we have set out in the course of this judgment, we are satisfied that the impugned order cannot be brought within the scope of this <ORG>'s jurisdiction to issue a writ of certiorari under Art. 32; to hold otherwise would be repugnant to the well-recognised limitations within which the jurisdiction to issue writs of certiorari can be exercised and inconsistent with the uniform trend of this <ORG>'s decisions in relation to the said point."

Two decades later, this Court in <CITATION> , relying upon the nine Judge Bench Judgment, came to a conclusion that in view of the decision in <NAME> case, it must be taken as concluded that the judicial proceedings in this Court are not subject to the writ jurisdiction under Article 32 of the Constitution and that is so on account of the fact that Benches of this Court are not subordinate to larger Benches thereof and certiorari is not admissible thus for quashing of the Orders made on the judicial side of the court. <CITATION> , a Constitution Bench of this Court also in no uncertain terms laid down that it will not be open to this Court in exercise of its jurisdiction under Article 32 to go behind or to examine the final verdict reached by a competent Court. To complete the list, however, a very recent decision of this Court in <CITATION>  one of us (<NAME>, J) upon consideration of <NAME> (supra) and <NAME> (supra) came to a conclusion that authority of an Order passed by this Court itself cannot be subjected to writ jurisdiction of this Court.

On the wake of the aforesaid, there is thus no manner of doubt that the plea of the availability of writ jurisdiction, as envisaged under Article 32 of the Constitution, cannot be sustained and the law seems to be well settled on this score and as such we need not delve into neither dilate any further thereon. Having regard to the conclusion, as above, does it, however, mean and imply a closed door even if the Order of this <ORG> depicts that the same stands in violation of natural justice adversely and seriously affecting the rights of the parties or the same depicts manifest injustice rendering the order a mockery of justice can it be said that the binding nature of an Order of this <ORG>, cannot thus be ever be corrected even if it causes insurmountable difficulty and immense public injury the debate has a very large and wide ramification and thus will have to be dealt with in a manner with care and caution and with proper circumspection as regards its impact - the principal basis being the concept of justice and this is where the principle of ex debito justitiae comes to play. Can it be said that the justice delivery system of the country is such that in spite of noticing a breach of public interest with a corresponding social ramification, this <ORG> would maintain a delightful silence with a blind eye and deaf ear to the cry of a society in general or even that of a litigant on the ground of finality of an Order as passed by this <ORG> ? True the finality shall have to be maintained but is it the principal requirement, which the law envisages? <NAME> stated that flexibility is the greatest virtue of law and thus its applicability should also be flexible rather than a rigid insistence on a strict format. Justice of the situation shall have to be considered with a fair perception of such a concept rather than with a blinking light attention ought to be focussed on a larger social perspective since law is meant for the society and if flexibility is its virtue, which law enjoys, its corresponding primary duty thus would be to change the legal horizon and perspective with the appropriate socio-economic change. The law must follow the society rather than abandon the society and carry on it strict track without any deviation or without being hindered of the social changes and thus resultantly face a social catastrophe.

Lord <NAME>'s exposition of the doctrine 'ex debito justitiae' in A/s <NAME> vs. <ORG> (1972 (2) All ER 538) has been stated to be rather restrictive, but since basically the same stands out to be on the concept of justice, speaking for myself do not subscribe to such a criticism. The Master of the Rolls stated that if the Judgment is irregular that is, which ought not to have been signed at all then the defendant is entitled ex debito justitiae to have it set aside but in the event it is otherwise regular, question of setting aside of the Judgment would not arise. It is, thereafter, however, arises, the question as to the true effect of Regular and Irregular Judgments : Since the issue involves a much wider debate, we refrain ourselves to attribute meanings thereto or to dilate on the ramifications of the terminology having regard to further enunciation of the doctrine by both <ORG> and <ORG>. Adverting to the true purport of the maxim, therefore, it is no gainsaid that "the same relates to and arises from the concept of justice : In the event there appears to be infraction of the concept, question of there being a turn around and thereby maintaining a total silence by the law <ORG>s would not arise. It is on this score, the learned Attorney General for India, appearing as Amicus Curiae, contended that <ORG> has the jurisdiction to exercise this inherent power for the ends of justice or to prevent abuse of the process of the court. Though we are not inclined to ascribe an Order of this <ORG> as an abuse of the process of the <ORG>, but the factum of the availability of inherent power for the ends of justice cannot in any way be decried. The Constitution of India assigned a pivotal role on to the <ORG> providing therein the supremacy of law with the rationale being justice is above all. The exercise of inherent power of this <ORG> also stands recognised by Order XLVII Rule 6 of the <ORG> Rules, 1966, which reads as below:

"6 Nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the <ORG> to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the <ORG>."

The observations of this <ORG> in A.R. Antulay (supra) lends concurrence to such an exercise of power by this <ORG> ex debito justitiae. The <ORG> can exercise its inherent power in the event of there being an error brought to the notice of this <ORG>. <NAME>,J (as he then was) in paragraph 40 of the Judgment in A.R. Antulay (supra) very lucidly and with utmost precision stated:

"The question of validity, however, is important in that the want of jurisdiction can be established solely by a superior court and that, in practice, no decision can be impeached collaterally by any inferior court. But the superior court can always correct its own error brought to its notice either by way of petition or ex debito justitiae. See Rubinstein's Jurisdiction and Illegality)."

Incidentally a Seven Judge Bench of this <ORG> in <CITATION>  relied upon another Judgment of Lord Denning in <CITATION> (1959 (3) All ER 245 : 1960 AC 459) and the dissent noting by Justice <NAME> in the case of <ORG> et al vs. USA (92 L ed 968), wherein in similar tone it has been stated that as soon as one finds a journey in the wrong direction, there should always be an attempt to turn to the right direction since law courts ought to proceed for all times in the right path rather than in the wrong. Adverting to the issue of inherent power, the observations of this <ORG> in <CITATION> (1993 Supp. (4) SCC 595) seems to be rather apposite. This <ORG> in paragraph 19 of the report, upon relying on the fundamental principles of jurisprudence that justice is above all, stated as below:

"Review literally and even judicially means re- examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage or justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice. In <NAME> v. <NAME> (AIR 1941 FC 1,2 : 1940 FCR 78 : (1941) 1 MLJ Supp 45) the <ORG> observed that even though no rules had been framed permitting the highest <ORG> to review its order yet it was available on the limited and narrow ground developed by <ORG> and <ORG>. The <ORG> approved the principle laid down by <ORG> in <NAME> v. <NAME> [(1836) 1 Moo PC 117 : 2 MIA 181 : 1 Sar 175] that an order made by the <ORG> was final and could not be altered:

". nevertheless, if by misprision in embodying the judgments, by errors have been introduced, these <ORG> possess, by Common law, the same power which the <ORG> of record and statute have of rectifying the mistakes which have crept in . <ORG> exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies.

Basis for exercise of the power was stated in the same decision as under:

"It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by <ORG>, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard."

Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this <ORG> was specifically provided by Article 137 of the Constitution. Our Constitution-makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution. And clause (c) of Article 145 permitted this <ORG> to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering this <ORG> to review an order in civil proceedings on grounds analogous to Order XLVII Rule 1 of the Civil Procedure Code. The expression 'for any other sufficient reason' in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL Rule 1 of the Supreme <ORG> Rules this <ORG> has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of <ORG>. The <ORG> is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice."

In one of its recent pronouncements [Supreme Court <CITATION> (1998 (4) SCC 409)] this Court has had the occasion to deal with the issue at some length relying upon Article 129 read with Article 142 of the Constitution. The plenary powers of <ORG>, as envisaged under Article 142 , stand out to be complimentary to those powers to do complete justice between the parties and it is on this score in paragraphs 47 and 48 of the report, this Court observed:

"47 The plenary powers of this <ORG> under Article 142 of the Constitution are inherent in the <ORG> and are complementary to those powers which are specifically conferred on the <ORG> by various statutes though are not limited by those statutes. These powers also exist independent of the statutes with a view to do complete justice between the parties. These powers are of very wide amplitude and are in the nature of supplementary powers. This power exists as a separate and independent basis of jurisdiction apart from the statutes. It stands upon the foundation and the basis for its exercise may be put on a different and perhaps even wider footing, to prevent injustice in the process of litigation and to do complete justice between the parties. This plenary jurisdiction is, thus, the residual source of power which this <ORG> may draw upon as necessary whenever it is just and equitable to do so and in particular to ensure the observance of the due process of law, to do complete justice between the parties, while administering justice according to law. There is no doubt that it is an indispensable adjunct to all other powers and is free from the restraint of jurisdiction and operates as a valuable weapon in the hands of the <ORG> to prevent "clogging or obstruction of the stream of justice". It, however, needs to be remembered that the powers conferred on the <ORG> by Article 142 being curative in nature cannot be construed as powers which authorise the <ORG> to ignore the substantive rights of a litigant while dealing with a cause pending before it. This power cannot be used to "supplant" substantive law applicable to the case or case under consideration of the <ORG>. Article 142 , even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly. Punishing a contemner advocate, while dealing with a contempt of court case by suspending his licence to practice, a power otherwise statutorily available only to <ORG>, on the ground that the contemner is also an advocate, is, therefore, not permissible in exercise of the jurisdiction under Article

142. The construction of Article 142 must be functionally informed by the salutary purposes of the article, viz., to do complete justice between the parties. It cannot be otherwise. As already noticed in a case of contempt of court, the contemner and the court cannot be said to be litigating parties.

48. <ORG> in exercise of its jurisdiction under Article 142 has the power to make such order as is necessary for doing complete justice "between the parties in any cause or matter pending before it". The very nature of the power must lead the <ORG> to set limits for itself within which to exercise those powers and ordinarily it cannot disregard a statutory provision governing a subject, except perhaps to balance the equities between the conflicting claims of the litigating parties by "ironing out the creases" in a cause or matter before it. Indeed this <ORG> is not a court of restricted jurisdiction of only dispute-settling. It is well recognised and established that this <ORG> has always been a law-maker and its role travels beyond merely dispute-settling. It is a "problem-solver in the nebulous areas" (see <CITATION>  : 1991 SCC (Cri) 734) but the substantive statutory provisions dealing with the subject-matter of a given case cannot be altogether ignored by this <ORG>, while making an order under Article 142. Indeed, these constitutional powers cannot, in any way, be controlled by any statutory provisions but at the same time these powers are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in a statute dealing expressly with the subject."

Incidentally, this <ORG> stands out to be an avenue for redressal of grievance not only in its revisional jurisdiction as conferred by the Constitution but as a platform and forum for every grievance in the country and it is on this context <NAME>, appearing in support of the some of the petitioners, submitted that <ORG> in its journey for over 50 years has been able to obtain the confidence of the people of the country, whenever the same is required be it the atrocities of the police or a public grievance pertaining to a governmental action involving multitudes of problems. It is <ORG>, Mr. <NAME> contended, where the people feel confident that justice is above all and would be able to obtain justice in its true form and sphere and this is beyond all controversies. It has been contended that finality of the proceeding after an Order of <ORG>, there should be, but that does not preclude or said to preclude this <ORG> from going into the factum of the petition for gross injustice caused by an Order of <ORG> itself under the inherent power being an authority to correct its errors any other view should not and ought not be allowed to be continued. Needless to record here, however, that review jurisdiction stand foisted upon this <ORG> in terms of the provisions of the Constitution, as noticed hereinbefore and it is also well-settled that a second review petition cannot be said to maintainable. Reference maybe made in this context to a decision of this <ORG> in the case of <CITATION> . (AIR 1990 SC 535), wherein this <ORG> in paragraph 3 stated as below :-

"We are clearly of the opinion that these applications are not maintainable. The petitioner, who appeared in person, referred to the judgment in <NAME>'s case (1988) 2 SCC 602 : (AIR 1988 SC 1531). We are, however, of the opinion that the principle of that case is not applicable here. All the points which the petitioner urged regarding the constitutionality of the <ORG> orders in question as well as the appointment of respondent instead of petitioner to the post in question had been urged before the <ORG>, which heard the civil appeal and writ petitions originally. The petitioner himself stated that he was heard by the <ORG> at some length. It is, therefore, clear that the matters were disposed of after a consideration of all the points urged by the petitioner and the mere fact that the order does not discuss the contentions or give reasons cannot entitle the petitioner to have what is virtually a second review."

True, due regard shall have to have as regards opinion of the <ORG> in <NAME> (supra), but the situation presently centres round that in the event of there being any manifest injustice would the doctrine of ex debito justitiae be said to be having a role to play in sheer passivity or to rise above the ordinary heights as it preaches that justice is above all. The second alternative seems to be in consonance with time and present phase of socio-economic conditions of the society. Manifest justice is curable in nature rather than incurable and this court would lose its sanctity and thus would belie the expectations of the founding fathers that justice is above all. There is no manner of doubt that procedural law/procedural justice cannot overreach the concept of justice and in the event an Order stands out to create manifest injustice, would the same be allowed to remain in silenco so as to affect the parties perpetually or the concept of justice ought to activate the <ORG> to find a way out to resolve the erroneous approach to the problem. Mr.<NAME> General, with all the emphasis in his command, though principally agreed that justice of the situation needs to be looked into and relief be granted if so required but on the same breath submitted that the <ORG> ought to be careful enough to trade on the path, otherwise the same will open up Pandora's box and thus, if at all, in rarest of the rare cases the further scrutiny may be made. While it is true that law courts has overburdened itself with the litigation and delay in disposal of matters in the subcontinent is not unknown and in the event of any further appraisal of the matter by this <ORG>, it would brook on further delay resulting in consequences which are not far to see but that would by itself not in my view deter this <ORG> from further appraisal of the matter in the event the same, however, deserve such an additional appraisal The note of caution sounded by Mr. <NAME> as regards opening up of pandora's box strictly speaking, however, though may be of very practical in nature but the same apparently does not seem to go well with the concept of justice as adumbrated in our constitution. True it is, that practicability of the situation needs a serious consideration more so when this <ORG> could do without it for more than 50 years, which by no stretch of imagination can be said to be a period not so short. I feel it necessary, however, to add that it is not that we are not concerned with the consequences of reopening of the issue but the redeeming feature of our justice delivery system, as is prevalent in the country, is adherence to proper and effective administration of justice in stricto. In the event there is any affectation of such an administration of justice either by way of infraction of natural justice or an order being passed wholly without jurisdiction or affectation of public confidence as regards the doctrine of integrity in the justice delivery system technicality ought not to out-weigh the course of justice the same being the true effect of the doctrine of ex debito justitiae. The oft quoted statement of law of Lord <NAME>, CJ in R v. Susssex Justices, ex p <NAME> (1924 (1) KB 256) that it is of fundamental importance that justice should not only be done, should manifestly and undoubtedly be seem to be done had this doctrine underlined and administered therein. In this context, the decision of <ORG> in R v. <ORG> and others, ex parte <NAME> (No.2) seem to be an ipoc making decision, wherein public confidence on the judiciary is said to be the basic criteria of the justice delivery system any act or action even if it a passive one, if erodes or even likely to erode the ethics of judiciary, matter needs a further look. Brother <NAME> has taken very great pains to formulate the steps to be taken and the methodology therefor, in the event of there being an infraction of the concept of justice, as such further dilation would be an unnecessary exercise which I wish to avoid since I have already recorded my concurrence therewith excepting, however, lastly that curative petitions ought to be treated as a rarity rather than regular and the appreciation of the <ORG> shall have to be upon proper circumspection having regard to the three basic features of our justice delivery system to wit, the order being in contravention of the doctrine of natural justice or without jurisdiction or in the event of there is even a likelihood of public confidence being shaken by reason of the association or closeness of a judge with the subject matter in dispute. In my view, it is now time that procedural justice system should give way to the conceptual justice system and efforts of the law <ORG> ought to be so directed. Gone are the days where implementation of draconian system of law or interpretation thereof were insisted upon - Flexibility of the law <ORG>s presently are its greatest virtue and as such justice oriented approach is the need of the day to strive and forge ahead in the 21st century.

No costs.