Holding

The Supreme Court upheld the High Court's findings, held that the appellant abused the PIL forum, and dismissed the appeal.

Summary

The appellant, N.K. Prasada, was respondent No.8 in two writ petitions filed as public interest litigations (PIL) in the Andhra Pradesh High Court alleging malfunctioning of the Commissioner of Central Excise and Customs. The High Court held that the petitions were engineered by the appellant to avoid a transfer order, dismissed them, warned the appellant, and imposed exemplary costs, finding an abuse of the judicial process. The appellant appealed to the Supreme Court, contending that he was denied a fair hearing and that the High Court erred in its findings. The Supreme Court examined the record, including affidavits, CBI reports and the High Court’s observations, and concluded that the appellant had indeed been the “king‑pin” of the PILs and that he had been given proper notice; his failure to appear could not be invoked as a breach of natural justice. The Court also held that the forum of PIL was abused and that it could refuse to entertain the appeal under Article 136. Consequently, the appeal was dismissed and no costs were awarded.

Issues considered

The correctness of the High Court's finding that the appellant engineered the PILs to avoid a transfer order.
Whether the appellant was denied a fair opportunity of hearing, violating principles of natural justice.
Whether the Supreme Court should grant special leave under Article 136 given the alleged abuse of the PIL process.
Whether the imposition of exemplary costs on the appellant was justified.

Legislation cited

Code of Criminal Procedure, 1973s. Section 164
Constitution of Indias. Article 136, s. Article 226
Indian Penal Code, 1860s. 109, s. 120-B, s. 199, s. 200, s. 201, s. 416, s. 465, s. 471

Subjects

public interest litigationabuse of processnatural justicespecial leaveexemplary coststransfer orderexcise and customsCBI investigationArticle 136Article 226

Judgment

A N.K. PRASADA
V.

GOVERNMENT OF INDIA AND ORS.

APRIL 12, 2004 ,_
B \II
[V.N. KHARE, CJ., S.B. SINHA AND S.H. KAPADIA, JJ.]
,.-

Constitution of India, 1950: -1
Articles 226 and 136-Public Interest Litigation (PJL)-Abuse ofprocess '"'
"'-
c of Court-Writ petition filed in High Court by way of PJL alleging
malfunctioning of the Commissioner of Central Excise and Customs-High
Court found that the writ petition was engineered by a person with an oblique
motive to avoid his transfer-High Court found the writ petition without any
merits and dismissed it by administering a severe warning to the petitioner-
D High Court also imposed exemplary costs on the said person for abuse of the
judicial process in the name of Pll--Correctness of-Held: This is not a case
where interference of the Supreme Court is called for in favour of the said .- 1111

person-This is a case where the forum of PJL has been abused

Article 136-Special Leave--Grant of-Forum ofPIL-Abuse of-Held:
E In a given case, such as abuse of the forum of PIL, Supreme Court may refuse
to exercise its discretionary jurisdiction under Article. 136.

Administrative Law:

Natural Justice-Principles of-Opportunity of hearing-Non-grant-
F Effect of-Held: Despite notice, if a party fails to appear, he cannot be permitted
to say that he was not given a fair opportunity of hearing.

The appellant was respondent No. 8 in a writ petition filed in the
High Court by way of a public interest litigation (PIL) alleging
malfunctioning of the Commissioner of Central Excise and Customs. The
G High Court found that the writ petition was engineered by the appellant
with an oblique motive to avoid an order of the appellant's transfer. The
High Court also found the writ petition to be without any merits and
dismissed the same by administering severe warning to the petitioner. The
High Court also found the appellant guilty of abuse of the judicial process

H 1178
_...,._
~

N.K. PRASADA v. GOVERNMENT OF INDIA 1179
in the name of PIL and imposed exemplary costs on the appellant. Hence A
the appeal.

On behalf of the appellant, it was contended that the impugned
,,..
judgment could not be sustained as no opportunity of hearing was given
to the appellant.
B
Dismissing the appeal, the Court

HELD: 1.1. The writ petition pending before the High Court was
disposed of on the basis of the materials on record. The materials not
"' only included the affidavits of the parties as also that of the appellant but
also the sworn statements of the writ petitioner. [1189-A-B] c
1.2. As the finding of the High Court is to the effect that the appellant
was the king pin of the entire episode and had engineered the entire game
with a view to getting his order of transfer stayed, there is no reason to
interfere therewith. [1188-H; 1189-AI
D
2. In this case the forum of Public Interest Litigation (PIL) has been
abused. [1193-A)
'
Ashok Kumar Pandey v. State of West Bengal, (2003) AIR SCW 6105
and Dr. B. Singh v. Union of India, (2004) AIR SCW 1494, relied on.
E
3.1. The principles of natural justice cannot be put into a straitjacket
formula. Its application will depend upon the facts and circumstances of
each case. If a party after having proper notice chose not to appear, he at
a later stage cannot be permitted to say that he had not been given a fair
opportunity of hearing. [1189-H; 1190-A)
F
Sohan Lal Gupta v. Asha Devi Gupta, [2003! 7 SCC 492, relied on.

3.2. The principles of natural justice must not be stretched too far.
(1190-CI

4. This is not a case where this Court should exercise its discretion G
in favour of the appellant. It is trite that in a given case, this Court may
refuse to exerdse its discretionary jurisdiction under Article 136 of the
Constitution. (1190-D (

Chandra Singh v. State of Punjab, (20031 6 SCC 545 and State of H
,,,,_
'
~

1180 SUPREME COURT REPORTS [2004] 3 S.C.R.

A Punjab v. Savinderjit Kaur, JT (2004) 3 SC 470, Guruvayoor Devaswom
Managing Committee v. CK. Rajan, 12003] 7 SCC 546, Chairman & MD BPL
Ltd. v. S.P. Gururaja, 1200318 SCC 567 and Onkarlal Bajaj v. Union of India,
(20031 2 sec 673, relied on. -,,
Whirlpool Corporation v. Registrar of Trade Marks, (1998] 8 SCC 1,
B Maharashtra State Board of Secondary Education v. Paritosh Bhupesh
Kumarsheth, AIR (1984) SC 1543, Bromley London Borough Council v.
Greater London Council, (1983) 1 AC 768, International Transport Roth
.
GmbH v. Secretary of State for the Home Department, (2002) 3 WLR 344
and Adams v. Lord Advocate, (Court of Session, Times, 8 August 2002), -(

c cited. II
..
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3137 of 1999.

From the Judgment and Order dated 6.7.98 of the Andhra Pradesh
High Court in W.P. No. 6240 of 1997.
D A. Sharan, Amit Kumar and S. Chandra Shekhar for the Appellant.

Anoop G. Choudhary, C.V.S. Rao, B.K. Prasad, A.S. Bhasme and P. ,
Parmeswaran for the Respondents.

The Judgment of the Court was delivered by
E
S.B. SINHA, J. The appellant herein was respondent No. 8 in one of
the public interest litigations being No. 6240 of 1997 which was disposed of
along with another public interest litigation being No. 5717 of 1997 and
Contempt Case No. 779 of 1997.

F The appellant herein has not questioned the correctness or otherwise of
the impugned judgment dated 6th July, 1998 passed by a Division Bench of -{
the Andhra Pradesh High Court in the aforementioned matters but only is
concerned with certain observations made therein as also imposition of a sum
of Rs. 20,000 by way of costs. These two public interest litigations were filed
G successively by one B. Kistaiah, said to be a former Member of Legislative
Assembly and the Writ Petition No. 6240 of 1997 by Digumarthi Premchand,
said to be a journalist. In the said purported public interest litigations alleged
.Ji--
malfunctioning of the Commissioner of Central Excise resulting in loss of
several crores of rupees as also purported dismantling of the Special
Investigating Team headed by the appellant herein were in question.
H
N.K. PRASADA v. GOVERNMENT OF INDIA [SINHA, .I.] 1181

The writ petitioners contended that the said Special Investigation Team A
was dismantled by the Commissioner-I Central Excise & Customs, Hyderabad
Commissionerate only with a view to help the dishonest traders and to prevent
the cases relating to evasion of excise duty. The appellant was not initially
a party therein but despite the same an order of transfer passed against him
and others dated 10.3.1997 bearing Establishment Order (G.0.) No. 43/97 B

- was questioned in the said writ petition. The cause of action for filing writ
petition No. 5717 of 1997 was also said to be issuance of the said order of
transfer dated 10.3.1997. A Division Bench of the High Court by an order
dated 21.03.1997 directed the appellant (although thence he was not a party)
not to hand over any record in any pending case which was or is under his
investigation to M. V.S. Chowdary till 26.3 .1997. The respondents were also C
purported to be relying on or on the basis of the additional affidavit directed
by the High Court to file their counter-affidavits and produce the records
relating to setting up of the Special Investigation Team and its disbanding.
The writ petitioner, however, instructed his counsel to withdraw the writ
petition stating:
D
"My conscience, however, does not permit me to proceed with the
said writ petition. I am also uncertain of the effect of the matter will
have and I am constrained, for my personal reasons, and for my
personal safety to seek the permission of the Hon'ble Court to withdraw
the writ petition."
E
When the said matter was pending, another writ petition marked as
W.P. No. 6240 of 1997 came to be filed by Digumarthi Premchand wherein
the avennents made, except for one paragraph were verbatim the same of
those contained in writ petition bearing No. 5717 of 1997. In the said writ
petition also the appellant herein was impleaded as a party and the main F
~- attack therein was directed against the said proceedings dated 10.03.1997
transferring the appellant.

It appears that the Director General, NACEN and Chief Commissioner,
Hyderabad by an order dated 08.05.1997 directed that the appellant should
be taken back on the rolls of Hyderabad Commissionerate and furthermore G
shou Id be handed over the cases for investigation. A further direction was
made to examine how his period of absence can be regularised. The writ
petitioner filed an application dated 22.5.1997 for implementation of the said
proceedings which was marked as WPMP (SR) No. 55758 of 1997.
Surprisingly enough, the said application was purported to have been directed
to be placed for House Motion before a Division Bench purported to be H
1182 SUPREME COURT REPORTS (2004) 3 S.C.R.

A under the orders of the Chief Justice of the Andhra Pradesh High Court
which admittedly was found to be wrong. The appellant herein filed two
applications on the same day one, to implead him as one of the respondents
and the other to give effect to the said proceedings dated 8.5 .1997 issued by
the Chief Commissioner, Hyderabad. Despite the fact that the Registry of the
B High Court was not supposed to receive the said applications without the
order of the Hon'ble Chief Justice, the same was done on a wrong premise
that a direction in that behalf had been issued by the Chief Justice. Interestingly,
the writ petitioner informed the Registrar (Judicial) that he would not be
insisting for House Motion as his advocate would not be available but keeping
-
in view the purported order passed by the Chief Justice, a Bench was
C constituted in relation whereto admittedly no direction had been issued by the
Chief Justice. It also stands admitted that even no direction had been issued
to number the said applications, whence the application filed by the appellants
were placed before the Bench.

The Registry submitted several reports before the Court, on having
D been asked to do so, which reveal as to how a fraud was practised upon the
court presumably in collusion with some officers of the Registry. A contempt
proceeding was initiated against Digumarthi Premchand relying or on the
basis of the said reports but as the writ petitioner had been evading service
of notice, not only non-bailable warrant was issued in absence of any correct
E address of writ petitioner having been furnished; the CBI was also asked to
cause to make a detailed enquiry/investigation into the following issues:

"(a) whether there is any person by name Digumarthi Premchand,
Journalist, r/o. Narayanaguda and if such a person is available, cause
his production before this Court on or before 19-9-1997, (b) if there
F is no such person by name Digumarthi Premchand, the sixth respondent
shall investigate and find out as to under what circumstances this writ
petition came into existence and the person or persons responsible for
filing the same."

Upon making an enquiry into the matter, a report was filed by the CBI
G on 19.9.1997 before the Division Bench of the High Court. The appellant
herein thereafter appeared before the Court on 17.10.1997. The CBI submitted
a final report stating that a chargesheet under Section 120-B read with Sections
199, 200, 201, 416, 465 and 471 of Indian Penal Code and Sections 109
thereof had been filed by it against the writ petitioner, the appellant herein
and one M. Kali Prasada who is his close relative. The material portions of
H the said report read as under:
N.K. PRASADA v. GOVERNMENT OF INDIA [SINHA, J.] 1183
"On 17-3-1997 Sri N.K. Prasada met one Sri B. Kistaiah an Ex.MLA A
who had got close association with Sri B.P. Agarwal Textile Mill
owner of Shadnagar with whom the said Sri N.K. Prasada also had
acquaintance. On the same day Sri Kistaiah filed a WP No.5717 of
1997 alleging irregularities in Customs and Central Excise, Hyderabad
and also filed several documents along with writ petition which were B
'· supplied by N.K. Prasada.

Not contended with filing of the above writ petition Sri N.K. Prasada
A2 also got filed another WP No.6240 of 1997 through Sri S.
Ramachandra Rao, senior Advocate and Seshagiri Rao, Advocate.
Since, the subject-matter of both the writ petitions are one and the C
same, the Hon'ble High Court posted the matter for hearing before
Hon'ble Justice V. Bhaskar Rao and Hon'ble Justice Sri B. Sudarshan
Reddy.

Sri Padmanabham, clerk of Sri Ramachander Rao informed that on
22-5-1997 Sri N.K. Prasada came to the office of Sri Ramachander D
Rao and asked him for the house motion petition of D. Premchand
and Sri Padmanabham showed him the bundle from which Sri N.K.
Prasada took out the petition informing him that he is taking the
house motion petition of D. Premchand.

Sri N.K. Prasada, (A2) has obtained this writ petition back from the E
Registrar of the High Court since some objections were raised by the
Registrar and Sri N .K. Prasada also signed in return register maihtained
by the Registrar office in token of receipt of the petition back.

The register as well as specimen signatures of Sri N.K. Prasada have
been referred to GEQD who opined that the signatures on the register p
pertains to Sri N .K. Prasada.

The investigation disclosed that the origin of all Phonogram was
from public telephone booth bearing No. 243 980, located at
Basheerbagh and other PCO telephone No.332917 located at
Erramanzil Colony. G
Investigation disclosed that on ~he day of filing of WP No.6240 of
1997 i.e., 26-3-1997 Sri Kali Prasada was taken to the office of Sri
S. Ramachander Rao by Sri N.K. Pramda and Sri B.P. Agarwal.
Investigation also disclosed that on 26-3-1997, Sri D. Premchand was
present at Srikakulam and he has not come to Hyderabad nor he H
1184 SUPREME COURT REPORTS [2004] 3 S.C.R.

A signed the affidavit enclose with the WP No.6240 of 1997.

The GEQD has opined that the signature on WP No.6240 of 1997
was not that of Sri D. Premchand. But Sri D. Premchand with a
fraudulent and dishonest intention filed an affidavit before the Hon'ble
High Court on 7-11-1997 stating that he himself has signed the
B affidavit enclosed with the WP No.6240 of 1997 and that he himself
filed the petition.

Sri S. Ramachander Rao, Sr. Advocate and Sri Seshagiri Rao, Advocate
who filed the WP No.6240 of 1997 have also stated in their statements
recorded under Section 164 Cr.PC before the II MM Hyderabad that
c the person Sri D. Premchand who had surrendered before Hon'ble
High Court on 19-9-1997 was not the person who came along with
Sri N.K. Prasada and who signed the WP No.6240 of 1997 on 26-3-
1997.
The document filed along with WP No.5717 of 1997 of Sri B. Kistaiah,
D Ex.MLA, Shadnagar were supplied by Sri N.K. Prasada has stated by
Sri K.R. Prabhakar Rao, Advocate for Sri B. Kistaiah, Sri B. Kistaiah
also stated before the Hon'ble High Court that Sri N.K. Prasada
requested him not to withdraw the petition.
By the aforesaid acts all the accused entered into criminal conspiracy
and fraudulently filed WP No.6240 of 1997 and in which process A3
E
impersonated Al under the active connivance of A2 and thereby
played fraud on the higher judiciary. Al has falsely stated through an
affidavit before the Hon'ble High Court of A.P. on 7-11-1997 that he
himself filed WP No.6240 of 1997.
Thus, all the three accused i.e., A1 to A3 committed offences
F punishable under Sections 120-B read with 199, 200, 20 l, 419, 465
and 471 IPC and Section 109 IPC.
It is therefore prayed that the Hon 'ble Court may take cognizance of
the case against the accused and they may be dealt with according to
law.
G Hence the charge-sheet."
The CBI was also directed by the High Court by an order dated 19.9.1997
to make investigation into the question as to:
"(1) whether the petitioner, himself, got the information required for
the purpose of filing this writ petition and if so, who are the persons
H
N.K. PRASAD A v. GOVERNMENT OF INDIA [SINHA . .I.] 1185
~.

from whom the petitioner had gathered the information. It is also just A
and necessary to find out as to (2) how and on what basis the averments
in the affidavit filed in support of the writ petition are made and the
persons responsible for making or engineering the avennents made in
the affidavit."

A direction was also issued to find out as to under what circumstances B
the writ petitioner proposed to withdraw the writ petition as also who were
the persons responsible for getting the letter of withdrawal filed by the writ
petitioner. The CBI in its report inter alia opined that the appellant herein was
the person working behind the scene. Interestingly, during the said investigation
the appellant could not be traced out. The aforementioned B. Kistaiah (writ C
petitioner in W.P. No.6240 of 1997) made a solemn statement before the
High Court wherein also he named the appellant herein as a person who was
responsible for getting the writ petition filed through the advocate although
he did not know him personally. He further alleged that the requisite documents
for filing the writ petition have been handed over to the learned Advocate by
ilie~11~ D
The High Court upon analysis of the pleadings and other materials
placed before it noticed:

"On analysis of the pleadings before us and various reports filed by
the CBI and the sworn statement of the petitioner in WP No.5717 of E
I997 would lead to an irresistable conclusion that both these writ
petitions are engineered and brought into existence by the 8th
respondent herein with an oblique motive of avoiding an order of
simple transfer dated 8-5-1997. It is the 8th respondent who has acted
from behind the scene and had set up the petitioner to file the writ F
petition making reckless and unfounded allegations against the
respondents. All this has been done only to avoid an order of simple
transfer. To what extent the 8th respondent can stoop down is amply
demonstrated from the contents of his own affidavit filed into this
Court. In one of his counter-affidavits to the report of the CBI dated
17-10-1997 the 8th respondent inter alia states that "on the day Sri G
B.P. Agarwal introduced me to the advocate but I had met Sri S.
Ramachandra Rao later on my own to seek advice whether I should
file in CAT or in High Court. As per his directions, I had given him
relevant papers which he said he would examine and advise me
accordingly. However, without my knowledge or authorisation he
used the documents to file a Public Interest Litigation. I came to H
1186 SUPREME COURT REPORTS [2004) 3 S.C.R.

A know much later that the Hon 'hie High Court has issued certain
directions on the PIL filed by B. Kistaiah, At no point of time did I
influence or induce anyone to file a petition on my behalf." It is
further stated that "the role of Sri S. Ramachander Rao as a senior
Advocate looks very dubious in this context. This is apart from
misusing the documents given by me to him in good faith for filing
B my own petition. This is a clear case of breach of client's
confidentiality and interest." It is now clear that it is the 8th respondent
who made available the entire material filed into Court as material
papers in these writ petitions. Obviously, the writ petition is drafted
on the basis of the material supplied by the 8th respondent. It would
c be totally altogether a different matter as to whether the affidavit is
signed by the petitioner or by somebody else at the instance of
Respondent No.8. But the feet remains that material has been
admittedly made available by the 8th respondent, undoubtedly he is
the king pin in the whole drama and operating from behind the scene."

D Before the High Court Shri E. Seshagiri Rao, advocate who had filed
the writ petition affirmed an affidavit wherefrom it transpired that the writ
petition had been filed from the Office of Shri S. Ramchander Rao, a senior
advocate purported to be on the instructions of one Shri B.P. Agarwal, the
appellant herein and some other persons.

E The High Court noticed gross abuse of the process of the Court in the
manner of filing the aforementioned two writ petitions said to be in the
nature of public interest litigations. The High Court also went into the merit
of the matter and arrived at a finding that the writ petitions were filed at the
instance of the appellant herein. The High Court while finding the said writ
F petitions to be without any merit opined that no relief can be granted to the
writ petitioner. The High Court also expressed its unhappiness over the role
of the lawyers. The High Court although noticed that the writ petitioner in
writ petition No. 5717 of 1997 appeared in person and wanted to withdraw
the writ petition but did not absolve him of his responsibility in the matter
in filing the writ petition at the instance of the appellant herein. However, it
G took a lenient view and dismissed the writ petition without awarding any cost
against him. The High Court, however, administered severe warning to him
•
to be careful in future and not to play any game with judicial process.

So far as writ petition No. 6240 of 1997 is concerned, the High Court :
H held:
N.K. PRASAD A v. GOVERNMENT OF INDIA [SINHA, J.] 1187

"So far as WP No.6240 of 1997 is concerned, we have already A
observed that the petitioner, as well as the 8th respondent are guilty
of abuse of the judicial process in the name of public interest litigation.
They have put the device of public interest litigation to naked abuse.
The weapon invented by the Apex Court with a noble cause intended
to serve the deprived sections of the Society pressed into operation
for destructive purpose. The streams of justice are polluted by their B
conduct.

We, under those circumstances, consid~r it appropriate to dismiss the
writ petition - Writ Petition No.6240 of 1997 with exemplary costs
quantified at Rs. 25,000 (Rupees twenty five thousand only); out of C
which a sum of Rs. 5,000.00 (Rupees five thousand only) shall be
paid by the petitioner, Digumarthi Premchand and the remaining sum
of Rs. 20,000 (Rupees twenty thousand only) shall be paid by the
respondent No.8, N.K. Prasada. The amount shall be deposited by the
petitioner and the 8th respondent with A.P. State Legal Services
Authority." D
In the contempt proceedings the writ petitioner was found guilty and
punishment till the rising of the court was awarded to the writ petitioner. The
High Co~rt, however, keeping in view the pendency of the criminal case
observed:
E
"However, we would like to make very clear that we have not
expressed any opinion whatsoever with regard to the merits of the
prosecution and the charge-sheet filed by the CBI against the petitioner
as well as 8th respondent and one Kali Prasada. The trial Court shall
proceed with the trial uninfluenced by any of the observations made
by us in this order. We have not expressed any opinion about any of F
the aspects and merits of the allegations levelled against the petitioner
and the 8th respondent. The observations, if any, made by this Court
while referring to the reports of the CBI and the charge-sheet" are
confined for the purpose of disposal of this writ petitions and the
contempt case. The trial Court shall dispose of the ·criminal case G
uninfluenced by any observation whatsoever made in this case."

Contentions of Mr. Amarendra Sharan, learned senior counsel appearing
. on behalf of the appellant are two-fold. Firstly he drew our attention to a First
Information Report purported to have been lodged by him against one T.N.
Rao, Dy. S.P. CBI Hyderabad and urged that as the said officer had himself H
1188 SUPREME COURT REPORTS [2004] 3 S.C.R.

A been facing a criminal charge of asking for bribe, his report filed before the
High Court should not have been relied upon. The learned counsel would
secondly urge that although the appellant was impleaded as a party, no
opportunity of hearing having been granted to him the impugned judgment
cannot be sustained.

B Mr. Anoop G. Choudhary, learned senior counsel appearing on behalf
of the respondents, on the other hand, would submit that the High Court itself
could have been moved for expunction of the remarks by the appellant herein.
It was pointed out that the appellant took part in the CBI enquiry, filed an
application for regularisation of leave and keeping in view the report submitted
C by the Central Bureau of Investigation, his involvement in getting the writ
petition filed is apparent on the face of the record.

The writ petitioner who had been arrayed as respondent No. 8 in the
Special Leave application has filed an affidavit. He in his affidavit does not
deny or dispute the findings of the High Court. He does not say that the writ
D petition was not filed at the instance of the appellant herein.

It is not in dispute that although the appellant was not a party in the
writ petition the order of transfer passed against him dated 10.3.1997 was the
subject matter thereof and an interim order had been passed by the Division ·
Bench of the High Court. The fact that he derived benefit of the said interim
E order is not denied or disputed. The fact that he filed two applications, one
for impleading himself as a party in the pending writ proceeding and another
for an interim order purported to be for implementing the order of the Chief
Commissioner dated 08.05.1997 also stands admitted.

We may recall that the original writ petitioner also filed a similar
F application. The High Court arrived at its conclusion not only on the basis
of the report of the Central Bureau of Investigation which, inter alia, contains
the statements of the clerk of Shri S. Ramchandra Rao, Advocate and his
involvement in filing the application and taking the same back from the
Registry which is borne out of the return register maintained by the Registry
G but also the detailed reports submitted by the Registrar (Judicial) before the
High Court from time to time as also other affidavits, sworn statements and
other materials brought on record.

As the finding of the High Court is to the effect that the appellant
~ herein was the king-pin of the entire episode and had engineered the entire
H game with a view to getting his order of transfer stayed is prima facie in
N.K. PRASADA v. GOVERNMENT OF INDIA [SINHA, J.) 1189
-·. nature, we do not find any reason to interfere therewith. A
The writ petition and the contempt proceedings pending before the
High Court were disposed of on the basis of the materials on record. The
materials not only included affidavits of the parties as also that of the appellant
but also the sworn statements of the writ petitioner and the Advocate appearing
for the writ petitioner. In view of the fact that even the learned advocate B
appearing on behalf of the writ petitioner categorically stated that at the time
of drawing of the writ petition the appellant was present, no fault with the
findings of the High Court can be found out if relia:ice had been placed
thereupon. The appellant had intervened in the writ applications as far back
as on 22.5.1997. He, it will bear repetition to state, filed an application for C
grant of an interim relief. The same was pending and, thus, there cannot be
any doubt whatsoever, having regard to the fact that the Central Bureau of
Investigation was making enquiry; the appellant herein must be held to have
been aware thereabout. His two applications were also pending and presumably
pressed (as there is nothing on record to show that at any point of time, he
intended to withdraw the same), and thus a presumption can be drawn to the D
effect that he/ his advocate had been keeping a watch over the entire
proceeding. Despite the same at no point of time the appellant wanted to
cross-examine any witness. He never brought the fact to the notice of the
court that a criminal case had also been filed against the Dy. S.P. of the
C.B.I. allegedly for taking bribe. He allowed the proceedings before the High E
Court to go on. He sat on the fence. He, as has been noticed by the High
Court, even could not be traced out for some time.

Furthermore; he appeared to be on leave during the following period:

"I. 83 days EL from 3-4-1997 to 24-6-1997.
F
2. 138 days EL from 26-6-1997 to 10-11-1997.
3. 15 days EL from 11-11-1997 to 25-11-1997.
4. 115 days Half-pay leave from 26-11-1997 to 29-4-1998.
5. 32 days extraordinary leave from 30-4-1998 to 31-5-1998." G
He, as noticed hereinbefore, filed application for regularisation of the
said period of leave pursuant to or in furtherance of the observations made
by the Chief Commissioner, Hyderabad in his order dated 08.05.1997.

The principles of natural justice, it is well-settled, cannot be put into a H
1190 SUPREME COURT REPORTS '[2004) 3 S.C.R.

A strait-jacket formula. Its application will depend upon the facts and
circumstances of each case. It is also well-settled that if a party after having
proper notice chose not to appear, he at later stage cannot be permitted to say
that he had not been given a fair opportunity of hearing. The question had
been considered by a Bench of this Court in Sohan Lal Gupw (Dead) through
LRs. and Ors. v, Asha Devi Gupta (Smt.) and Ors., [2003) 7 SCC 492 of
B which two of us (V.N, Khare, CJI and Sinha, J.) are parties wherein upon
noticing a large number of decisions it was held:

"29. The principles of natural justice, it is trite, cannot be put in a
straitjacket formula. In a given case the party should not only be
required to show that he did not have a proper notice resulting in
c violation of principles of natural justice but also to show that he was
seriously prejudiced thereby __ ."

The principles of natural justice, it is well-settled, must not be stretched
too far,
D In any event, it is not a case where this Court should exercise its
discretion in favour of the appellant It is trite that in a givm case, the Court
may refuse to exercise its discretionary jurisdiction under Article 136 of the
Constitution, (See Chandra Singh and Ors. v, State of Rajasthan and Anr.,
[2003] 6 SCC 545 and State of Punjab and Ors, v. Savinderjit Kaur, JT
E (2004) 3 SC 470,

The scope of public interest litigation has recently been noticed by this
Court in Guruvayoor Devaswom Managing Committee and Anr. v. C.K. Rajan
and Ors., [2003] 7 SCC 546 holding :

F " __ ,Statutory functions are assigned to the State by the Legislature and
not by the Court, The Court while exercising its jurisdiction ordinarily
must remind itself about the doctrine of separation of powers which,
however, although does not mean that the Court shall not step-in in
any circumstance whatsoever but the Court while exercising its power
must also remind itself about the rule of self-restraint The Court, as
G indicated hereinbefore, ordinarily is reluctant to assume the functions
of the statutory functionaries, It allows them to perform their duties
at the first instance.

The court steps in by Mandamus when the State fails to perform
its duty. It shall also step in when the discretion is exercised but the
H
N.K. PRASADA v. GOVERNMENT OF INDIA [SINHA, J.] 1191

same has not been done legally and validly. It steps in by way of a A '·
~.

judicial review over the orders passed. Existence of alternative remedy
albeit is no bar to exercise jurisdiction under Article 226 of the
Constitution of India but ordinarily it will not do so unless it is found
that an order has been passed wholly without jurisdiction or
contradictory to the constitutional or statutory provisions or where an B
order has been passed without comp lying with the principles of natural
justice. (See Whirlpool Corporation v. Registrar of Trade Marks,
Mumbai and Ors., [1998] 8 SCC I.

It is trite that only because floodgates of cases will be opened, by
itself may not be no ground to close the doors of courts of justice. C
The doors of the courts must be kept open but the Court cannot shut
its eyes to the ground realities while entertaining a public interest
litigation.

Exercise of self-restraint, thus, should be adhered to, subject of
course to, just exceptions."
D
(See also Maharashtra State Board ofSecondary Education v. Paritosh
Bhupesh Kumarsheth etc., AIR (1984) SC 1543).

The said decision has been followed in Chairman & MD, BPL Ltd. v.
S.P. Gururaja and Ors., [2003] 8 SCC 567, wherein it was noticed :
E
"Dawn Oliver in Constitutional Reform in the UK under the heading
'The Courts and Theories of Democracy, Citizenship, and Good
Governance' at page 105 states:

"However, this concept of democracy as rights-based
with limited governmental power, and in particular of the role F
of the courts in a democracy, carries high risks for the judges
- and for the public. Courts may interfere inadvisedly in public
administration. The case of Bromley London Borough Council
v. Greater London Council, (1983) I AC 768, HL is a classic
example. The House of Lords quashed the GLC cheap fares G
policy as being based on a misreading of the statutory provisions,
but were accused of themselves misunderstanding transport policy
in so doing. The courts are not experts in policy and public
administration - hence Jowell's point that the courts should not
step beyond their institutional capacity (Jowell, 2000).
Acceptance of this approach is reflected in the judgments of H
1192 SUPREME COURT REPORTS (2004] 3 S.C.R.

A Laws LJ in International Transport Roth GrnbH v. Secretary of
State for the Home Department, (2002) EWCA Civ 158, (2002)
3 WLR 344) and of Lord Nimmo Smith in Adams v. Lord
Advocate (Court of Session, Times, 8 August 2002) in which a
distinction was drawn between areas where the subject matter
lies within the expertise of the courts (for instance, criminal
B justice, including sentencing and detention of individuals) and
those which were more appropriate for decision by democratically
elected and accountable bodies. If the courts step outside the
area of their institutional competence, government may react by
getting Parliament to legislate to oust the jurisdiction of the
c courts altogether. Such a step would undermine the rule of law.
Government and public opinion may come to question the
legitimacy of the judges exercising judicial review against
Ministers and thus undermine the authority of the courts and the
rule of law."

D In Onkar/a/ Bajaj and Ors. v. Union of India and Anr., [2003] 2 SCC
673 it was observed:
<
"The expression 'public interest' or 'probity in governance', cannot
be put in a straitjacket. 'Public interest' takes into its fold several
factors. There cannot be any hard and fast rule to determine what is
E public interest. The circumstances in each case would determine
whether Government action was taken is in public interest or was
taken to uphold probity in governance.

The role model for governance and decision taken thereof should
manifest equity, fair play and justice. The cardinal principle of
F governance in a civilized society based on rule of law not only has
to base on transparency but must create an impression that the decision-
making was motivated on the consideration of probity. The
Government has to rise above the nexus of vested interests and
nepotism and eschew window dressing. The act of governance has to
withstand the test of judiciousness and impartiality and avoid arbitrary
G
or capricious actions. Therefore, the principle of governance has to
be tested on the touchstone of justice, equity and fair play and if the
decision is not based on justice, equity and fair play and has taken
into consideration other matters, though on the face of it, the decision
may look legitimate but as a matter of fact, the reasons are not based
H on values but to achieve popular accolade, that decision cannot be
N.K. PRASADA v. GOVERNMENT OF INDIA [SINHA, J.] 1193
allowed to operate." A
We are pained to see how the forum of public interest litigation is being
abused. This Court recently had also the occasion to notice the same. (See
Ashok Kumar Pandey v. State of West Bengal, (2003) AIR SCW 6105 and
Dr. B. Singh v. Union of India and Ors., (2004) AIR SCW 1494).
B
For the reasons aforementioned, we do not find any merit in this appeal
which is dismissed accordingly. No costs.

v.s.s. Appeal dismissed.