M/S BRAHMAPUTRA CONCRETE PIPE INDUSTRIES ETC. ETCversusTHE ASSAM STATE ELECTRICITY BOARD AND OTHERS

                 [2024] 2 S.C.R. 758 : 2024 INSC 145

      M/S Brahmaputra Concrete Pipe Industries Etc. Etc.
                            v.
        The Assam State Electricity Board and Others
           (Miscellaneous Application (Civil) No. 2045 of 2022)
                                      IN
            (Curative Petition (Civil) Diary No. 23828 of 2020)
                                      IN
                 (Review Petition (Civil) No.789 of 2019)
                                      IN
                     (Civil Appeal No. 8450 of 2016)
                              26 February 2024
           [Aniruddha Bose* and Sudhanshu Dhulia, JJ.]

                           Issue for Consideration
       Whether registry has the power to dismiss a curative petition solely
       on the ground that no averment has been made to the effect that
       the review petition was dismissed by circulation.

                                  Headnotes
       Supreme Court Rules, 2013 – Ord. XLVIII r.2 (1) – Curative
       petition – Registry’s power to dismiss – Dismissal of review
       petition in open court after oral hearing and not by circulation
       – Curative petitions filed thereagainst – Order of the registrar
       declining registration of curative petitions on the ground that
       no averment made to the effect that the review petition was
       dismissed by circulation – Legality:
       Held: Instant matter ought to be decided by a Bench of this Court
       and not by the Registry – Registry cannot be vested with power
       to decide whether a review petition, after being dismissed in open
       Court hearing, merited relook through the curative jurisdiction –
       That would be a judicial exercise – A curative petition arising from
       an order dismissing a review petition upon hearing in open Court
       must contain a plea or prayer seeking excuse from compliance of
       making averment as contained in Ord. XLVIII r. 2(1) – Proper course
       for the Registry on receiving such a petition with a prayer to be
       excused from the above requirement would be to obtain instructions
       from the Judge in chambers and thereafter communicate such
       instructions to the parties – r. 2, second part, provides that the

* Author
[2024] 2 S.C.R.                                                               759

          M/S Brahmaputra Concrete Pipe Industries Etc. Etc.
           v. The Assam State Electricity Board and Others

     Registrar herself can direct the applicant to serve the other party
     with a notice of motion returnable before the Court while she opines
     that it is desirable that the application should be dealt with in the
     open Court but would not apply where the applicant approaches
     this Court after the review petition is dismissed in open court
     hearing – In cases where review plea is dismissed by circulation,
     the curative petition has to be circulated first to a Bench of three
     senior-most Judges of this Court and the Judges who passed
     the judgment complained of, if available – Thereafter, the course
     prescribed in sub-clauses (2), (3) and (4) of r. 4 of Ord. XLVIII
     would be followed as may be applicable – In the instant appeal,
     said course not followed when the order was passed declining
     registration of the curative petition – Said order being contrary
     to the provisions of the Rules, thus, set aside, however, not a fit
     case to remand the matter to the Registrar as substantial time has
     lapsed – No case made out for invoking the curative jurisdiction
     to take relook into the case – Purpose would not be served in
     sending the matter back to the Chamber Judge for instructions in
     the given circumstances. [Paras 18, 19, 21, 22, 23]
     Supreme Court Rules, 2013 – Ord. XLVIII – Curative petition
     – Limitation for filing:
     Held: Curative jurisdiction being a special jurisdiction derived from
     inherent power or jurisdiction of this Court, the limitation prescribed
     for filing of review petition cannot be extended to apply in the cases
     of curative petition – Curative jurisdiction of this Court does not
     flow from its power to review, but this jurisdiction is derived from
     Arts 129 and 142 of the Constitution of India – Moreover, r. 3 of
     Order XLVIII specifically stipulates that curative petition has to be
     filed within reasonable time from the date of judgment or order
     passed in a review petition – No timeframe has been formulated
     in the 2013 Rules either for filing a curative petition. [Para 11]

                               Case Law Cited
           Rupa Ashok Hurra vs Ashok Hurra and Another, [2002]
           2 SCR 1006 : (2002) 4 SCC 388 – followed.
           P.N. Eswara Iyer and Others vs Registrar, Supreme
           Court of India, [1980] 2 SCR 889 : (1980) 4 SCC 680;
           Rama Rao Poal vs Samaj Parivartana Samudaya,
           Curative Petition (Civil) D. No.35404/2015; Mohd.
           Arif vs Registrar, Supreme Court of India, [2014] 11
760                                                              [2024] 2 S.C.R.

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              SCR 1009 : (2014) 9 SCC 737; Union of India & Ors.
              vs M/s. Union Carbide Corporation & Ors., Curative
              Petition (Civil) Nos. 345-347 of 2010 – referred to.

                                   List of Acts
       Supreme Court Rules, 2013; Constitution of India; Interest
       on Delayed Payments to Small Scale and Ancillary Industrial
       Undertakings Act, 1993.

                                List of Keywords
       Curative petition; Registry’s power to dismiss curative petition; Oral
       hearing and not by circulation; Registration of curative petition;
       Review petition; Dismissed in open Court hearing; Curative
       jurisdiction; Judicial exercise; Instructions from the Judge in
       chambers; Review plea; Remand; Limitation; Special jurisdiction;
       Inherent power or jurisdiction; Time frame.

                               Case Arising From
       INHERENT JURISDICTION : Miscellaneous Application (Civil)
       No.2045 of 2022
       In
       Curative Petition (Civil) Diary No.23828 of 2020
       In
       Review Petition (Civil) No.789 of 2019
       In
       Civil Appeal No.8450 of 2016
       From the Judgment and Order dated 31.10.2022 in D No.23828 of
       2020 of the Supreme Court of India
       With
       Miscellaneous Application (Civil) Nos.2046, 2047, 2048 and 2050
       of 2022 in Curative Petition (Civil) Diary Nos.23829, 23830, 23831
       of 2020 and 14718 Of 2021 in Review Petition (Civil) Nos.786-787
       of 2019 in Civil Appeal Nos.8442-8443 of 2016 with Miscellaneous
       Application (Civil) No.2049 of 2022 in Curative Petition (Civil)
       No.23833 of 2020 in Review Petition (Civil) No.788 of 2019 in Civil
       Appeal No.8445 of 2016
[2024] 2 S.C.R.                                                          761

          M/S Brahmaputra Concrete Pipe Industries Etc. Etc.
           v. The Assam State Electricity Board and Others

                         Appearances for Parties
     Anand Sanjay M. Nuli, Dharm Singh, Ms. Nandiny Pandey, Suraj
     Kaushik, Akhila Wali, M/s. Nuli & Nuli, Advs. for the Appellants.
     Vijay Hansaria, Sr. Adv., Ms. Kavya Jhawar, Ms. Sneha Kavita, Advs.
     for the Respondents.
                Judgment / Order of the Supreme Court

                                Judgment
     Aniruddha Bose, J.
     The appellants before us are firms who are aggrieved by an order
     of a Registrar (J-IV) of this Court passed on 31.10.2022 declining
     registration of a set of petitions labelled as “curative petitions.” This
     was a common order passed in six similar petitions (including the
     one instituted by the appellant in the Miscellaneous Application No.
     2045 of 2022, instituted by Brahmaputra Concrete Pipe Industries)
     founded on similar factual and legal grounds. These appeals have
     been filed under Rule 5 of Order XV of the Supreme Court Rules,
     2013 (hereinafter the “2013 Rules”). In this judgment, we shall refer
     to the pleadings and orders made in Misc. Application No.2045 of
     2022 treating it as the lead matter. The said Rule reads:-
                                  “Order XV
                              PETITIONS GENERALLY
           .
           .
           .
           5. The Registrar may refuse to receive a petition on the
           ground that it discloses no reasonable cause or is frivolous
           or contains scandalous matter but the petitioner may within
           fifteen days of the making of such order, appeal by way
           of motion, from such refusal to the Court.
           .
           .
           .”
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2.     The order of the Registrar, which is under appeal before us, reads:-
            “The above mentioned Curative Petitions filed by M/s. Nuli
            & Nuli, Advocates against the judgment dated 18.12.2019
            passed in the Review Petitions were heard and disposed
            of in the Open Court.
            In this regard the relevant Rule 2(1), Order XLVIII, S.C.R.,
            2O13 reads as under:
                 “The petitioner, in the curative petition, shall aver
                 specifically that grounds mentioned therein had been
                 taken in the Review Petition and that it was dismissed
                 by circulation.”
            Since the aforesaid Review Petitions were disposed of
            in open court and not by circulation, the aforementioned
            Curative Petitions are declined for registration and are
            lodged under Order XV Rule 5 of Supreme Court Rules,
            2013.
            Inform the Advocate accordingly.”
3.     The origin of the dispute ultimately leading to passing of the
       aforesaid order relates to maintainability of a suit instituted by
       the appellant under “The Interest on Delayed Payments to Small
       Scale and Ancillary Industrial Undertakings Act, 1993” (the 1993
       Act). The suit of the appellant was decreed by the Civil Judge,
       Senior Division, Tinsukia, Assam (Trial Court) but was dismissed
       by the High Court in appeal mainly on the ground of the suit not
       being maintainable. The High Court, inter-alia, held that the suit
       under the 1993 Act would not lie in respect of the transactions
       which had taken place prior to 23.09.1992, the date on which
       the Act became operational. The appeal against the High Court
       judgment was dismissed by a three Judge Bench of this Court on
       23.01.2019. The plea of review of the said judgment also failed
       and the review petition was dismissed on 18.12.2019 after open
       court hearing. In this judgment, we shall deal with the legality of
       the Registrar’s order refusing to receive the curative petitions of
       the appellants.
4.     The 1993 Act was preceded by an ordinance permitting certain small
       scale industrial undertakings to claim interest on delayed payment.
       That ordinance was promulgated on 23.09.1992. The ordinance later
[2024] 2 S.C.R.                                                        763

          M/S Brahmaputra Concrete Pipe Industries Etc. Etc.
           v. The Assam State Electricity Board and Others

     transformed into the aforesaid statute. A question arose as to whether
     the right to sue for interest under the said Act could relate back to
     delayed payments made under agreements entered into before the
     date of promulgation of the ordinance or not. A Full Bench of the
     Gauhati High Court opined that the right to claim interest under the
     said statute would not extend to agreements or contracts entered
     prior to 23.09.1992.
5.   In this judgment, we shall discuss the factual position involved in
     the petition filed by the appellant in the lead matter. Its case had
     ultimately reached this Court and in the judgment delivered on
     23.01.2019, it was held by the three Judge Bench that the material
     date for instituting the suit for interest would depend on whether
     delivery was made by the supplier after coming into operation of the
     said statute or not. If that was the case, then a suit for recovery of
     interest on delayed payment would be maintainable in the opinion
     of the three Judge Bench. In the case of the appellant before us,
     the three Judge Bench found no evidence of any delivery being
     made subsequent to the statute becoming operational. What the
     appellant had sought to rely on was the dates of raising of bills
     subsequent to 23.09.1992. The three-Judge Bench of this Court
     was not satisfied that the goods were supplied subsequent to that
     date, in respect of which interest was being claimed on account
     of delayed payment.
6.   As we have already indicated, the three Judge Bench of this Court
     dismissed the review petition in open court after oral hearing, finding
     no error apparent on the face of record of the judgment under review.
     It was thereafter the curative petition was instituted with which we
     are concerned in this judgment.
7.   Under the Constitution of India or any other statutory provision,
     there is no specific jurisdiction conferred on this Court to entertain
     curative petitions excepting the Rules of this Court made in 2013.
     The Supreme Court Rules 2013 deals with the procedure for filing
     of curative petitions and we shall revert to these Rules later in this
     judgment. Article 137 of the Constitution of India lays down the
     jurisdiction of the Court to review its own judgment or order. Article
     145 of the Constitution of India empowers this Court to make rules
     for regulating the general practice and procedure of the Court. The
     said two Articles read:-
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       “137: Review of judgements or orders by the Supreme
       Court
       Subject to the provisions of any law made by Parliament
       or any rules made under Article 145, the Supreme Court
       shall have the power to review any judgment pronounced
       or order made by it.
       145: Rules of Court, etc.
       (1)   Subject to the provisions of any law made by
             Parliament, the Supreme Court may from time to
             time, with the approval of the President, make rules
             for regulating generally the practice and procedure
             of the Court including –
             (a)   rules as to the persons practicing before the
                   Court;
             (b)   rules as to the procedure for hearing appeals
                   and other matters pertaining to appeals including
                   the time within which appeals to the Court are
                   to be entered;
             (c)   rules as to the proceedings in the Court for the
                   enforcement of any of the rights conferred by
                   Part III;
             (cc) rules as to the proceedings in the Court under
                  Article 139A;
             (d)   rules as to the entertainment of appeals under
                   sub-clause (c) of clause (1) of article 134;
             (e)   rules as to the conditions subject to which any
                   judgment pronounced or order made by the
                   Court may be reviewed and the procedure for
                   such review including the time within which
                   applications to the Court or such review are to
                   be entered;
             (f)   rules as to the costs of and incidental to any
                   proceedings in the Court and as to the fees to
                   be charged in respect of proceedings therein;
             (g)   rules as to the granting of bail;
[2024] 2 S.C.R.                                                           765

          M/S Brahmaputra Concrete Pipe Industries Etc. Etc.
           v. The Assam State Electricity Board and Others

                 (h)   rules as to stay of proceedings;
                 (i)   rules providing for the summary determination
                       of any appeal which appears to the Court to be
                       frivolous or vexations or brought for the purpose
                       of delay;
                 (j)   rules as to the procedure for inquiries referred
                       to in clause (1) of article 317.
           (2)   Subject to the provisions of clause (3), rules made
                 under this article may fix the minimum number of
                 Judges who are to sit for any purpose, and may
                 provide for the powers of single Judges and Division
                 Courts.
           (3)   The minimum number of Judges who are to sit
                 for the purpose of deciding any case involving a
                 substantial question of law as to the interpretation
                 of this Constitution or for the purpose of hearing
                 any reference under Article 143 shall be five:
                 Provided that, where the Court hearing an appeal
                 under any of the provisions of this Chapter other
                 than article 132 consists of less than five Judges
                 and in the course of the hearing of the appeal of
                 the Court is satisfied that the appeal involves a
                 substantial question of law as to the interpretation
                 of this Constitution the determination of which is
                 necessary for the disposal of the appeal, such
                 Court shall refer the question for opinion to a Court
                 constituted as required by this clause for the purpose
                 of deciding any case involving such a question and
                 shall on receipt of the opinion dispose of the appeal
                 in conformity with such opinion.
           (4)   No judgment shall be delivered by the Supreme
                 Court save in open Court, and no report shall be
                 made under article 143 save in accordance with an
                 opinion also delivered in open Court.
           (5)   No judgment and so such opinion shall be delivered
                 by the Supreme Court save with the concurrence of
                 a majority of the Judges present at the hearing of the
766                                                             [2024] 2 S.C.R.

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                 case, but nothing in this clause shall be deemed to
                 prevent a Judge who does not concur from delivering
                 a dissenting judgment or opinion.”
8.     The expression “curative petition” was used by Constitution Bench
       of this Court comprising of five Hon’ble Judges in the case of Rupa
       Ashok Hurra -vs- Ashok Hurra and Another [(2002) 4 SCC 388].
       This Court, in the said judgment, opined that to prevent abuse of
       the Court’s process and to cure a gross miscarriage of justice, the
       Supreme Court may reconsider its judgments in exercise of its
       inherent powers. This inherent power or jurisdiction was traced to
       Articles 129 and 142 of the Constitution of India. It was inter-alia,
       held in this judgment:-
            “50. The next step is to specify the requirements to
            entertain such a curative petition under the inherent
            power of this Court 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 Court should not entertain an application seeking
            reconsideration of an order of this Court 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.
            51. Nevertheless, we think that a petitioner is entitled
            to relief ex debito justitiae if he establishes (1) violation
            of the principles of natural justice in that he was not a
            party to the lis but the judgment 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.
            52. 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
[2024] 2 S.C.R.                                                          767

          M/S Brahmaputra Concrete Pipe Industries Etc. Etc.
           v. The Assam State Electricity Board and Others

           by a Senior Advocate with regard to the fulfilment of the
           above requirements.
           53. 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 Bench of the three seniormost Judges and
           the Judges who passed the judgment complained of, if
           available. It is only when a majority of the learned Judges
           on this Bench conclude that the matter needs hearing
           that it should be listed before the same Bench (as far as
           possible) which may pass appropriate orders. It shall be
           open to the Bench 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 Bench holding at any
           stage that the petition is without any merit and vexatious,
           it may impose exemplary costs on the petitioner.
           54. Insofar as the present writ petitions are concerned,
           the Registry 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.”
9.   As would be evident from the aforesaid passages of the said
     judgment, one of the pre-conditions for filing a curative petition is
     that the petitioner must specifically aver that the grounds mentioned
     in such petition had been taken in the review petition and that it was
     dismissed by circulation. This is contained in paragraph 52 of the said
     report. The grounds on which a curative petition could be founded
     have been specified in paragraph 51 of the report in the case Rupa
     Ashok Hurra (supra). The provision pertaining to filing of curative
     petitions have been incorporated in Order XLVIII of the 2013 Rules.
     The said Rules, along with its sub-clauses is reproduced below:-
                               “ORDER XLVIII
                             CURATIVE PETITION
           1.   Curative Petitions shall be governed by Judgment of the
                Court dated 10’” April, 2002 delivered in the case of ‘Rupa
                Ashok Hurrah v. Ashok Hurrah and Ors.’ in Writ Petition
                (C) No. 509 of 1997.
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           2.   (1) 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.
                (2) A Curative Petition shall be accompanied by a
                certificate of the Senior Advocate that the petition meets
                the requirements delineated in the above case.
                (3) A curative petition shall be accompanied by a certificate
                of the Advocate on Record to the effect that it is the first
                curative petition in the impugned matter.
           3.   The Curative Petition shall be filed within reasonable
                time from the date of Judgment or Order passed in the
                Review Petition.
           4.   (1) The curative petition shall be first circulated to a Bench
                of the three senior-most judges and the judges who passed
                the judgment complained of, if available.
                (2) Unless otherwise ordered by the Court, a curative
                petition shall be disposed of by circulation without any oral
                arguments but the petitioner may supplement his petition
                by additional written arguments.
                (3) If the Bench before which a curative petition was
                circulated concludes by a majority that the matter needs
                hearing then it shall be listed before the same Bench, as
                far as possible.
                (4) If the Court, at any stage, comes to the conclusion
                that the petition is without any merit and vexatious, it may
                impose exemplary costs on the petitioner.”
10. The main point urged on behalf of the appellant is that the Registrar
    has no power or jurisdiction to decline registration of a curative petition
    and it should be decided by a Bench of this Court. There appears to
    be no decision directly on this point and we had requested Mr. Raju
    Ramachandran, learned Senior Advocate to assist us as an Amicus
    Curiae in this matter, a request he graciously accepted. Mr. Anand
    Sanjay M. Nuli has appeared on behalf of the appellants and we
    have already recorded his main submissions. Mr. Vijay Hansaria,
    learned Senior Counsel appearing on behalf of the respondent has
[2024] 2 S.C.R.                                                          769

          M/S Brahmaputra Concrete Pipe Industries Etc. Etc.
           v. The Assam State Electricity Board and Others

     drawn our attention to the Order XLVIII of the 2013 Rules to point
     out that since this was a case where review petition was dismissed
     in open Court hearing after oral submissions were advanced, it does
     not satisfy the mandate of the five Judge Bench laid down in the
     case of Rupa Ashok Hurra (supra). Mr. Hansaria has also taken
     the point of delay in filing the curative petition. The review petition
     was dismissed on 18.12.2019 and the curative petition was filed on
     31.10.2020, after a lapse of ten months. He has taken us through
     the provisions of Rule 3 of Order XLVIII of the 2013 Rules which
     requires a curative petition to be filed within a reasonable time from
     the date of judgment or order passed in the review petition. But the
     Rules do not provide any specific time period within which a curative
     petition has to be filed from the date of dismissal of the review
     petition. Thus, it ought to be left to the discretion of the Court while
     entertaining such petition to decide the question of delay.
11. Mr. Hansaria also referred to the thirty days’ limitation period for
    filing a review petition in terms of Order XLVII, Rule 2 of the 2013
    Rules. Our opinion on this point is that the curative jurisdiction being
    a special jurisdiction derived from inherent power or jurisdiction of
    this Court, the limitation prescribed for filing of review petition cannot
    be extended to apply in the cases of curative petition. We hold so
    because curative jurisdiction of this Court does not flow from its
    power to review, but this jurisdiction is derived from Articles 129 and
    142 of the Constitution of India. Moreover, Rule 3 of Order XLVIII
    of the 2013 Rules specifically stipulates that curative petition has to
    be filed within reasonable time from the date of judgment or order
    passed in a review petition. No timeframe has been formulated in
    the 2013 Rules either for filing a curative petition.
12. Mr. Hansaria’s further argument has been that the judgment in the
    case of Rupa Ashok Hurra (supra) requires to be reconsidered.
    But the aforesaid decision having been delivered by a high
    authority, of five Hon’ble Judges of this Court, we cannot test its
    legality or comment on the question as to whether it requires to be
    reconsidered or not. For this reason, we are unable to accept his
    submission on this point. He cited a decision of this Court in the
    case of P.N. Eswara Iyer and Others -vs- Registrar, Supreme
    Court of India [(1980) 4 SCC 680] in which distinction has been
    drawn between an original or first hearing of a matter and a relook
    thereto at the stage of review. In this judgment, it was held that
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       the parameters for hearing these two proceedings are different.
       This judgment was delivered in connection with amendment of the
       Supreme Court Rules, 1966 dispensing with oral hearing of review
       petitions. But this authority does not aid the respondent, having
       been delivered in a different context under different set of Rules.
       In any case, oral hearing has not altogether been dispensed with
       in curative jurisdiction also and it has been left at the discretion of
       the Bench to decide as to whether the curative petitions ought to
       be dismissed by circulation without oral arguments or there shall be
       oral submission after notice to the opposite party. This procedure
       is contained in Rule 4 of Order XLVIII of the 2013 Rules which has
       been reproduced earlier in this judgment.
13. While in the case Rupa Ashok Hurra (supra), it was specified by the
    five Judge Bench that a curative petition must contain an averment
    that review petition was dismissed by circulation, the consequence
    of dismissal on oral hearing in open Court has not been specified in
    that judgment. Rules have been framed lifting the directions of this
    Court in the case of Rupa Ashok Hurra (supra) to statutory level.
    While testing the appellant’s submissions, we shall refer to these
    Rules as well.
14. Mr. Ramachandran, learned Amicus Curiae has argued that the
    making of averment to the effect that the review petition was
    dismissed by circulation should not by itself guide the question of
    maintainability of a curative petition. His submission is that in terms
    of Order LV Rule 2 of the 2013 Rules, this Court has been vested
    with power to excuse from compliance with the requirements with
    any of the rules and if an application to that effect is made, the
    Registry should take instructions from the Judge in chamber in
    that regard and communicate the same to the parties. The said
    Rule further provides that if in the opinion of the Registrar, it is
    desirable that the application should be dealt with in open Court,
    she may direct the applicant to serve the other parties with a
    notice of motion returnable before the Court. Mr. Ramachandran
    has also cited an order passed on 08.02.2016 in the case of
    Rama Rao Poal -vs- Samaj Parivartana Samudaya [Curative
    Petition (Civil) D. No.35404/2015], in which this Court had initially
    directed that the question of maintainability ought to be decided
    by the concerned Bench. In the said order, a Coordinate Bench
    of this Court observed:-
[2024] 2 S.C.R.                                                          771

          M/S Brahmaputra Concrete Pipe Industries Etc. Etc.
           v. The Assam State Electricity Board and Others

           “Two issues arise in the appeal. The first is whether a
           curative petition would be maintainable against an order
           passed in a review petition which has been heard in open
           Court. The second is whether the pre-conditions laid down
           in “Rupa Ashok Hurra vs. Ashok Hurra & Anr. “, (2002) 4
           SCC 389, are satisfied. The Registrar has decided both
           the issues against the applicant/petitioner holding the
           curative petition to be not maintainable.
           Upon hearing the learned counsel for the applicant/
           petitioner and after perusing the relevant provisions of
           the Supreme Court Rules, 2013, we are of the view that
           the aforesaid questions are to be decided by the Bench.
           The Registry is therefore directed to circulate the curative
           petition in accordance with the relevant provisions of the
           Supreme Court Rules.
           Appeal against the Registrar order is disposed of in the
           above terms.”
15. That proceeding had also reached the Coordinate Bench in appeal
    from an order of a Registrar. Subsequently, however, a Bench of
    this Court comprising of four Hon’ble Judges dismissed the curative
    petition on 29.03.2016.
16. Moreover, in the judgment of this Court in the case of Mohd. Arif
    -vs- Registrar, Supreme Court of India [(2014) 9 SCC 737] it
    has been observed that where death sentence is awarded, a right
    of limited oral hearing shall be given to the convict at the stage of
    review petition. Subsequently, in the case of Union of India & Ors.
    -vs- M/s. Union Carbide Corporation & Ors. [Curative Petition (Civil)
    Nos.345-347 of 2010], a five Judge Bench of this Court by an order
    passed on 14.03.2023, upon hearing the parities in exercise of its
    curative jurisdiction chose to dismiss the same. In this proceeding
    the Court was examining a curative petition brought by Union of India
    seeking to re-open the settlement arrived at in the case arising out
    of Bhopal gas tragedy that occurred in 1984. Earlier review petitions
    questioning the settlement order stood dismissed and Union of India
    had not asked for review thereof. Mr. Ramachandran has submitted
    that the earlier review petitions were dismissed after hearing in open
    Court and in spite of that, the Constitution Bench chose to hear the
    parties invoking curative jurisdiction of this Court.
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17. In the decision of this Court in the case of Union Carbide (supra),
    the Constitution Bench of this Court in substance reaffirmed the
    direction contained in the case of Rupa Ashok Hurra (supra) limiting
    the scope of curative petitions by holding :-
          “28. We have great hesitation in allowing such a prayer
          and granting such sui generis relief through the means
          of curative petitions. Although this Court in Rupa Ashok
          Hurra chose not to enumerate all the grounds on which a
          curative petition could be entertained; the Court was clear in
          observing that its inherent power ought not to be exercised
          as a matter of course, and that it should be circumspect
          in reconsidering an order of this Court that had become
          final on dismissal of the review petition. Nevertheless,
          looking at the nature of the matter before us, it would be
          advisable to also examine the curative petition(s), apart
          from the aforesaid preliminary objection.”
18. What is apparent from the tenor of the aforesaid judgments is
    that the question of maintainability of a curative petition has to be
    ultimately examined by a Bench of this Court. The composition of
    such bench has also been laid down in the case of Rupa Ashok
    Hurra (supra). This has further been incorporated in Rule 4 of Order
    XLVIII of the 2013 Rules. But the question of composition of the
    Bench can arise only after the curative petition is entertained. The
    point with which we are dealing with in this judgment is not whether
    the curative petition ought to be dismissed by circulation or not. The
    issue we have to address is as to whether Registry has the power
    to dismiss a curative petition solely on the ground that no averment
    has been made to the effect that the review petition was dismissed
    by circulation. We accept the submission of Mr. Ramachandran that
    this is a matter which ought to be decided by a Bench of this Court
    and not by the Registry. This is a judicial exercise. That is what
    in effect flows from the Bench of coordinate strength in its order
    of 08.02.2016 in the case of Rama Rao Poal (supra). Moreover,
    while in the case of Rupa Ashok Hurra (supra) certain conditions
    have been prescribed on satisfaction of which a curative petition
    would lie, there is no discussion or stipulation in the judgment that
    in absence of averment to that effect, the curative petition ought to
    be dismissed at the registration stage itself. Further, the grounds
    on which the Registrar may refuse to receive a petition have been
[2024] 2 S.C.R.                                                         773

          M/S Brahmaputra Concrete Pipe Industries Etc. Etc.
           v. The Assam State Electricity Board and Others

     enumerated in Rule 5 of Order XV of the 2013 Rules. In the order
     under appeal, the aforesaid Rule has been referred to. But this Rule
     does not empower the Registrar to decline registration of a curative
     petition on the ground as disclosed in declining registration of the
     present curative petition. Hearing of a review petition in open Court
     cannot be brought within the ambit of the expression “that it discloses
     no reasonable cause” as employed in Rule 5 of Order XV of the
     2013 Rules. That factor would be, at best, a technical shortcoming.
     Considering the importance of the question raised before it, in the
     case of Union Carbide (supra) the Constitution Bench of this Court
     chose to examine the curative petition in spite of there being dismissal
     of the review petition in open Court hearing though ultimately the
     curative petition stood dismissed.
19. Now we shall turn to the question as regards the course open to
    the Registry after it finds a curative petition lacking the averment
    to the effect that the grounds mentioned therein had been taken
    in the review petition and that it was dismissed by circulation. We
    have referred to two precedents where this Court chose to invoke
    its curative jurisdiction after the respective review petitions were
    dismissed in open Court. Registry cannot be vested with power
    to decide whether a review petition, after being dismissed in open
    Court hearing, merited relook through the curative jurisdiction. As
    we have already observed, that would be a judicial exercise. The
    Registry in a situation of this nature, cannot keep the matter pending
    as “defective” either, as is done in the cases of delayed filing of
    petition unaccompanied by applications for condonation of delay. We
    are referring to this context by way of an illustration only. In such a
    situation, filing of an application for condonation of delay would cure
    the initial defect and it would be for the Court to decide as to whether
    the delay has to be condoned or not. In cases like the present one,
    curing the defect would not be within the Registry’s jurisdiction. We
    also do not think an appeal under Order XV Rule 5 of the 2013
    Rules would be the proper course, as under that Rule situations in
    which Registry can refuse to entertain a petition have been clearly
    expressed. Failure to make averment in terms of Rule 2(1) of Order
    XLVIII of the 2013 Rules is not one of the conditions which vests the
    Registry to refuse to receive a curative petition in itself.
20. In our opinion, the course to be followed by the Registry in a
    proceeding of this nature is contained in Order LV Rule 2 of the
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       2013 Rules. This was the submission of the learned Amicus Curiae
       and we quote below the said Rule:-
                              “ORDER LV
                POWER TO DISPENSE AND INHERENT POWERS
           .
           .
           .
           2. An application to be excused from compliance with the
           requirements of any of the rules shall be addressed, in the
           first instance, to the Registrar, who shall take instructions
           ofthe Judge in Chambers thereon and communicate the
           same to the parties, but, if, in the opinion of the Registrar,
           it is desirable that the application should be dealt with in
           open Court, he may direct the applicant to serve the other
           party with a notice ofmotion returnable before the Court.
           .
           .
           .”
21. We are of the view that a curative petition arising from an order
    dismissing a review petition upon hearing in open Court must
    contain a plea or prayer seeking excuse from compliance of making
    averment as contained in Order XLVIII Rule 2(1) of the 2013 Rules.
    The proper course for the Registry on receiving such a petition with a
    prayer to be excused from the above requirement would be to obtain
    instructions from the Judge in chambers and thereafter communicate
    such instructions to the parties. In the second part of Rule 2 it is
    provided that the Registrar herself can direct the applicant to serve
    the other party with a notice of motion returnable before the Court
    while she opines that it is desirable that the application should be
    dealt with in the open Court. The said part of the Rule would not apply
    in a case where the applicant seeking to invoke curative jurisdiction
    approaches this Court after the review petition is dismissed in open
    court hearing. The applicant for invoking curative jurisdiction, in such
    a situation, as we have already observed, must file an application
    praying to be excused from compliance with Rule 2(1) of Order XLVIII
    of the 2013 Rules and such application shall also contain a request
[2024] 2 S.C.R.                                                        775

          M/S Brahmaputra Concrete Pipe Industries Etc. Etc.
           v. The Assam State Electricity Board and Others

     for the matter to be placed before the chamber judge for proper
     instructions. In other cases pertaining to curative petitions, in which
     the review plea is dismissed by circulation, the curative petition has
     to be circulated first to a Bench of three senior-most Judges of this
     Court and the Judges who passed the judgment complained of, if
     available. Thereafter, the course prescribed in sub-clauses (2), (3)
     and (4) of Rule 4 of Order XLVIII of the 2013 Rules shall be followed
     as may be applicable.
22. So far the present appeal is concerned, this course was not followed
    when the order was passed declining registration of the curative
    petition. This order, in our opinion, is contrary to the provisions of
    the Rules and thus, we set aside the impugned order.
23. We, however, do not consider it fit to remand the matter to the
    Registrar as the curative petitions were filed in the year 2020 and
    substantial time has lapsed since then. We have ourselves gone
    through the initial order passed in the Special Leave Petition as
    also the order of the Review Court. We have perused the curative
    petitions as well. We do not think any case has been made out by
    the appellant for invoking the curative jurisdiction to take relook into
    the appellant’s case. Hence, we refrain from entertaining the curative
    petitions. We do not think any purpose would be served in sending
    the matter back to the Chamber Judge for instructions in the given
    circumstances.
24. We record our appreciation for the assistance given to us by Mr.
    Ramachandran, learned senior counsel as Amicus Curiae.
25. The appeal shall stand disposed of in the above terms.
26. This judgment will cover five other miscellaneous applications which
    are in effect appeals from the order of the Registrar and all these
    appeals shall stand disposed of in the same terms.


     Headnotes prepared by: Nidhi Jain                   Result of the case:
                                                         Appeal disposed of.