SAMARIAS TRADING CO PVT LIMITED Vs. S SAMUEL

JUDGEMENT

(1.) "Curiouser and curiouser", Alice would have certainly exclaimed with us had the mischievous state of affairs of the present case come to her notice. We confess that the state of affair is but the inevitable consequence of a most curious procedure said to be followed over the years by the Calcutta High Court, a practice which we are happy to say, no other High Court in the country follows, a practice which do put in the mildest terms is unhealthy and likely to lead to harm and abuse and A practice which we now propose to forbid in the exercise of our powers under Art. 141 of the Constitution. The practice, the consequences and our precept will reveal themselves as we proceed to state the facts. We may mention at the outset that in response to our invitation the learned Attorney General very. graciously addressed us and indeed made forceful submissions. We are grateful to him to his valuable assistance.

(2.) An auction of the right to sell liquor at Rangat, Andaman Islands was held on 15-2-1984 by the Deputy Commissioner, Port Blair. One H. K. Hariwat was the highest bidder. M/s Samarias Trading Co. Pvt. Ltd. having an office at Port Blair, the petitioner before us in the Special Leave Petition, was one of the participants in the auction but not S. Samuel, S/o Swami Das Pillai, 12, Cathral Road, Madras, who figures before us as the first respondent. As B. K. Hariwat did not deposit fifty per cent of the licence fee as stipulated by clause 14 of the terms and conditions of the auction, the sale was not confirmed and the shop had to be auctioned again. The second auction was held on 28-3-1984. At this auction M/s. Samarias Trading Co. Pvt. Ltd. was the highest bidder. The bid was for a sum of Rupees 25 lakhs. S. Samuel also participated in the auction but his bid was just over Rupees 17 lakhs only. The highest bidder (M/s. Samarias Trading Co. Pvt. Ltd.) deposited sum of Rs. 10,000/-, 2,50,000/- and 9,90,000/- on 29-3-1984, 28-3-1984 and 29-3-1984 respectively. The sale was confirmed and shoo was awarded to M/s. Samarias Trading Co. Pvt. Ltd. The licence was to enure for the period 1-4-1984 to 31-3-1985. In the meanwhile, things moved at Calcutta on 30-3-1984. When the Court was about to rise for the day Shri Shankardas Banerjee, Senior Advocate mentioned to a learned Single Judge of the Calcutta High Court (Shri Justice Pyne) that he desired to move an application before the Judge in his chambers after the Court rose. The learned Judge granted leave and accordingly Sarvashari S. D. Banerjee, Ashoke Kumar Ganguly and K. K. Bandopadhyay, learned. Advocate purporting to appear on behalf of a person professing to be S. Samuel moved the learned Single Judge of the Calcutta High Court in his chambers under Art. 226 of the Constitution and obtained an ex parte order in the following terms :-

(3.) The remarkable fact worthy of immediate attention is that there was no written application before the learned Judge. The order of the learned Judge was made on an oral application and makes not the slightest attempt to indicate even briefly the facts told to him, the question of law, if any, raised before him and the reasons which prompted him to make the interim order that he did. All that we can gather from the proceedings and the record of the Court is that some oral application was made, an oral undertaking was given to make a written application within four days and an interim order was issued by the court directing the maintenance of status quo in regard to an auction of liquor shops already held. The order does not disclose that the learned Single Judge was aware that the bid was for such a large amount as Rs. 25 lakhs that at least Rupees Twelve and half lakhs would have been deposited by the time the order was Made and that the licence itself was to take effect from 1-4-1984. What was to happen to the amount already deposited Who was to run the liquor shop from 1-4-1984 What security had been taken from the petitioner to protect the revenue and the other respondents We get no indication from the order. In fact the order made no provision to protect any one from any resulting mischief. And all this on an oral undertaking, given by an advocate that a petition would be filed on behalf of a party whose very existence we now find is doubtful, as we shall have occasion to point out hereafter. No record, not a scrap of paper, was filed into Court at 'that stage and no contemporaneous record was prepared by anyone containing the barest allegations constituting the foundation of the oral application that was actually made, the written application that was proposed to be filed and the interim order issued. A most curious procedure indeed for a Court of record to follow! And, a situation where a Judge would have to turn witness if any dispute arose subsequently as to what the allegations were and why the Judge made the order! Shri S. S. Ray, who appeared before us at some stages of the case, informed us that a practice of this nature of obtaining interim orders on oral applications subject to undertaking being given proposing to file written applications later, had always been in vogue in the Calcutta High Court. It was. a matter of great surprise to us that a Court of justice and at that, a Court of record, should have been following such a practice. The learned Attorney General informed us that such a practice was not followed. in any other High Court and he placed before us substantial and compelling reasons vigorously deprecating such a practice; reasons which have found favour with us. Shri Lal Narain Sinha, former Attorney General, who practised for a considerable length of time in the Patna High Court which generally inherited, if we may use such an expression, the practice and procedure of the Calcutta High Court and who happened to be present before us at another stage of the hearing of the case and whose assistance we sought and for which we are grateful to him told us that in his long experience he was not aware of any such practice and that such a practice was never followed in the Patna High Court.