ANAND SHRIVASTAV Vs. UNION OF INDIA

JUDGEMENT

(1.) C.Ms.11110/2005 & 11117/2005 (Exemption) Allowed, subject to all just exceptions. W.P. (C) No.17416-17/2004

(2.) This Writ Petition prays inter alia for the setting aside of the impugned Order dated 30 11.2004 passed by the Chairman, Company Law Board, Principal Bench, New Delhi. It cannot be disputed that that Order has already been assailed unsuccessfully before the Company Judge, High Court of Delhi. Thereafter a Special Leave Petition was preferred against the Order of the learned Company Judge and that was also dismissed. This is, therefore, the second salvo of litigation in respect of the same Order. The contention is that in the previous round of litigation the Petitioner had not put forward the argument that the impugned Order ought to have been passed by a Bench comprising of more than one person. This ground was certainly available to the Petitioner even in the previous round of litigation. The principles and prescriptions of constructive res judicata would, therefore, apply. The following observations of the Hon'ble Supreme Court in Shankar Ramchandra Abhyankar Vs. Krishnaji Battatraya Bapat, AIR 1970 SC 1, have been relied upon by the learned ASG: Now when the aid of the High Court is invoked on the revisional side it is done because it is a superior Court and it can interfere for the purpose of rectifying the error of the Court below. Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior Court. It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense. We do not therefore, consider that the principle of merger of orders of inferior Courts in those of superior Courts would be affected or would become inapplicable by making a distinction between a petition for revision and an appeal. It may be useful to refer to certain other decisions which by analogy can be of some assistance in deciding the point before us. In UJ.S. Chopra Vs. State of Bombay, AIR 1955 SC 633 the principle of merger was considered with reference to Section 439 of the Criminal Procedure Code which confers revisional jurisdiction on the High Court. In the majority judgment it was held, inter alia, that a judgment pronounced by the High Court in the exercise of its appellate or revisional jurisdiction after issue of a notice and a full hearing, in the presence of both the parties would replace the judgment of the lower Court thus constituting the judgment of the High Court the only final judgment to be executed in accordance with law by the Court below. In Chandi Prasad Chokhani Vs. The State of Bihar, (1962) 2 SCR 276=(AIR 961 SC 1708) it was said that save in exceptional and special circumstances this Court would not exercise its power under Article 136 in such a way as to by-pass the High Court and ignore the latter's decision which had become final and binding by entertaining an appeal directly from orders of a Tribunal. Such exercise of power would be particularly inadvisable in a case where the result might lead to a conflict of decisions of two Courts of competent jurisdiction. In our opinion the course which was followed by the High Court, in the present case, is certainly one which leads to a conflict of decisions of the same Court. Even on the assumption that the order of the appellate Court had not merged in the order of the single judge who had disposed of the revision petition we are of the view that a writ petition ought not to have been entertained by the High Court when the respondent had already chosen the remedy under Section 115 of the Code of Civil Procedure. If there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the Subordinate Court. The refusal to grant relief in such circumstances would be in consonance with the anxiety of the Court to prevent abuse of process as also to respect and accord finality to its own decisions. In this context it would be productive to refer to the string of judgements of several Benches presided over by Chief Justice R.G. Lahoti including Madhukar D. Shende Vs. Tarabai Aba Shedage, (2002) 2 SCC 85, K. Sivaramaiah Vs. Rukmani Ammal, (2004) 1 SCC 471, V. Rajeshwari (Smt.) Vs.T.C. Saravanabava, (2004) 1 SCC 551, T.P. Moideen Koya Vs. Govt. of Kerala and Others, (2004) 8 SCC 106 and U.P. State Road Transport Corporation Vs. State of U.P. and Another, (2005) 1 SCC 444.

(3.) On the previous date of hearing copies of the Company Law Board Regulations, 1991 had been handed over to the Court by learned Counsel for the Petitioner, Regulation 4 of which read as follows: