Holding

The Supreme Court forbids the practice of entertaining oral applications for consequential orders without a contemporaneous written record, deeming it contrary to the principles of open justice and a court of record.

Summary

The Calcutta High Court entertained an oral application in the judge's chambers, without any written record, and issued an interim order maintaining the status quo of a liquor shop auction. The order was made without stating facts, legal questions, or reasons, and was later extended without the parties being informed. The Supreme Court examined whether such oral applications, lacking a contemporaneous record, violate principles of open justice and the court's status as a court of record. It held that while urgent oral applications may be permitted, they must be supported by at least a skeletal written submission and be made in open court when possible. The Court condemned the Calcutta High Court's practice as unhealthy and ordered that such procedures be forbidden. Consequently, the appeal by Samarias Trading Co. was allowed, confirming the lease of the liquor shop and directing that the practice of entertaining oral applications without record be prohibited.

Issues considered

Whether an oral application made in chambers without a written record and reasons can be entertained for an interim order.
Whether such a procedure violates the principle of open justice and the court's status as a court of record.
Whether the status‑quo order issued by the Calcutta High Court was valid.
Whether the practice of granting interim orders on oral applications should be prohibited.

Legislation cited

Constitution of Indias. Article 226

Subjects

oral applicationinterim orderchamber proceedingsopen justicecourt of recordstatus quoauctionleaseprocedural fairness

Judgment

24

A
SAMARIAS TRADING CO. PVT. LTD.

v.
B
S. SAMUEL & ORS.
Norember 9, 1984 ..
(0. CHINNAPPA REDDY, A. P. SEN & E. S. VENKATARAMIAH, JJ.)
Practice and Procedure-Oral application made to a Judge in Chambers-
c No. written application fifed-Orders passed-/lleither facts nor questio1t of law '
reasons given in the order-Propriety of.
A sillill/! in Chambers-When should be held.

A single Judge of the Calcutta High Court, on an oral application made
in his chamber on behalf of a person professing to be respondent No. l, and on
D giving an oral undertaking to make a written application within 4 days, issued
"'an interim order directing maintenance of status quo in regard to an auction of
a liquor shop held in favour of the appellant. The said order did not make any
attempt to indicate even briefly the facts, the question of law, if any. raised
before the Judge and the reasons which prompted him to make such an interjrn
order. On receiving the information about the said order, the appellant contac..
ted the High Court and got the information that the subsequent writ petition
E filed by respondent No. 1 under Article 226 would be taken up for orders at
2. 30 p.m. on 3. 4. 1984. While the represent<t;tives of the appellant and their
advocate were wailing in the court, they came to know that the matter had been
mentioned in the cha1nber of the learned Judge who had earlier granted stay and
that the order of statues quo had been extended until further orders. The
appellant told the learned Single Judge that they were waiting in the Court and
were not informed that the matter was going to be mentioned in his chamber
F and in view of this they requested the learned Judge to reconsider his order.
But, t.1ie Judge declined to do so. Thereupon the appellant filed a Writ Appeal.
The Writ Petitioa filed by respondent No. 1 alongwith the Writ Appeal of the
appellant were heard together by a Division Bench which set aside the auction
and directed that a fresh auction be held on 19th April 1984. Aggrieved by the
said order, the appeHant has filed the present appeal.
G Disposing of the appeal,
HELD .: There is hardly any justification for the entertainment of an
oral application atid the issuance of an interim order with no recl>id whatever
of what was sµbmitted ~O the court of the reasons for the order rl!ade·by the
court. "'lo petiflit a procedure.. by \\fhich oral applications may be made and
interim.·.6rders :obtained without any petition in writing, without any affidavit
having ~en sv.:or.n ~ · eS p~iina facie ,pr;oof (If allegations and without any
reg,rd being kept.be(Ore th~· court may lead to very serious abuse •f the 1't'0cess
ll of the court. Therefore, this Court expresses its disapprobation and forbids tho
SAMAIUAS CO. v. S. SAMUEL 2S
practice of entertaining oral applications by any court in matters of consequence A
without any record before it. [29E-G]

(2) This Court does not mean to suggest that oral application may never
be made. Often during the course of the hearing of a case it becomes necessary
to make applications of a formal oature and such application are permitted by
the Presiding Judge. But in all such cases the court is already seised of the
principal matter or dispute and there is a record pertaining to it before the
court. Again, this Court does not mean to suggest that other urgent oral appli·
cations may never be made. If urgent interim orders are imperative, at least
skeletal applications setting out the bare facts and the questions invoh·ed should
be insisted upon. A detailed application could be pennitted to be filed later.
If the matter is so urgent as not even to brook any insistence upon a written
application, the judge should at least take the trouble and the care to record in
his order the facts mentioned to him and the submissions made to him. It is c
' essential that there be a contemporaneous record. Otherwise the court ceases
to be a court of record. [29G-H; 30A-BJ

(3) A sitting in chambers could be held when both sides are represented
and the sittings are held openly so that members of the public, if they desire to
attend, may have access even in the chamber. To grant interim orders on oral O
applications in chambers when the judge is otherwise sitting in ope11 court for
other matters would seriously reflect on the fairness of the procedure adopted
by the courts and may have the unpleasant effect of undermining public confi-
dence in courts. A public hearing is one of the great attributes of a court, and
courts of this country are therefore required to administer justice in public.
Otherwise, there is a risk that justice may even be undone. It is not 'as a
matter of policy but as a matter of Jaw' that the hearing of a cause be public E
except in the limited class of cases. That rule was violated by the learned Sjngle
Judge in this case. (3IE;H; 32A-B]

Naresh Shridhar Mirajkar &: Ors. v. State of Maharashtra & Anr. [1966]
3 SCR 744. & McPHERSON v. McPHERSON AIR 1936 PC 246 referred to.

(4) Jn the instant case the Court allowed the reauction to be held on 19th
April 1984. Since the highest bidder in the reauction did not deposit the neces~
sary amount in time as required under the Rules the Court set aside the reauc-
tion. As the appellant offered to take the shop on lease for a sum of Rs. 30
lacs and the A. dditional Solicitor General appearing for the administration of
Andaman and Nicobar Islands accepted the offer. The Court sanctioned the lease
in favour of the appellant on the condition of making the necessary deposit
within 10 days from that day. [36B; F-GJ

CtvIL APPELLATE JURISDICTION: Civil Appeal No. 4416 of 1984

Appeal by Special leave from the Judgment and Order dated
4th April, 1984 of the Calcutta High Court in F. M.A. T. No. 992
of 1983 H
26 SUPREME COURT REPORTS [1985) 2 S.C.R.

*"i\ Vasanta Pai, Ms. S. Vaidalingam and P. J. George for the
Appellant.
Bina Gupta for the respondent.

K. G. Bhagat' Addl Sol. General. /l. N. Poddar and M. N.
Kris/uwmani, for the Respondent.
B
R. Karanjawala and Miss M. Karanjawa/a for the applicant in
Intervention appln.
K. Parasaran, Atty. General and D. N. Sinha at request of
Court.
c The Judgment of the Court was delivered by
'
CHINNAPPA REDDY, J. "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 affai is but the inevitable consequence of a most curious
D procedure sai 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
E
and our precept will reveal themselves as we proceed to state the
facts. We inay mention at the Cutset Act in responee to our invi-
tation the learned Attorney General very graciously addressed us
and indeed made forceful submissions. We are grateful to him to
his valuable assistance.
F
An auction of the right to sell liquor at Rangat, Andaman
Islands was held on 15. 2. 84 by the Deputy Commissioner, Port
Blair. One B. K. Hariwat was the highest bidder. Mfs Samarais
Trading Co. Pvt. Ltd. having an office at Port Blair, the petitioner
before us in the Special Leave Petition, was one of the participants
G in the auction but not S. Samual, Sfo Swami Das Pillai, 12, Cathral
Road, Madras, who figures before us as the first respondent. As
B. K. Hariwat did not d~posit fifty per cent of the licence fee as
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
B Trading Co. Pvt. Ltd. was the highest bidder. The bid was for a
SAMARIAS co. v. s. SAMUEL (Chinnappa Reddy, J.) 27

sum of Rupees 25 lakhs. S. Samuel also praticipated in the auction
but his bid was just over Rupees 17 Lakhs only. The highest biddoc
A
(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 shop was awarded to M/s
Samarias Trading Co. Pvt. Ltd. The licence was to enure for the
period I. 4. 1984 to 31. 3. 1985. In the meanwhile, things moved
B
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
' accondingly Sarvashari S. D. Bane1jee, Ashoke Kumar Ganguly and c
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 cx-parte order in the
following terms :-
D
"On the oral application of Mr. S. D. Banerjee and
upon his undertaking to move application by Tuesday next
there will be an order as follows.

The respondents are directed to maintain status quo in
respect of the liquor shop at Rangat in Middle Andaman E
and not to proceed on the basis of the alleged liquor auc-
tion held on 28. 3. 1984. The order will remain in force
till Tuesday next. Let a plain copy countersigned by
Asstt. Registrar (Court) be given to the learned Advocate
to the petitioner.
Sd/R. N. Pyne." F
Ihe 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 him, the question of law, if any, raised before him and the G
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. H
'
:28 SUPREME COURT REPORtS (1985J ZS.C.R.

A 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
!Mst 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 I. 4. 1984. What was to happen to the amount already
deposited '? Who was to run the liquor shop from I. 4. 1984 ? What
B 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
c 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 appli-
D cation 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 shy
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
E of obtaining interim orders on oral applications subject to under-
taking 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
F 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. Sbri 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
G such an expression, the practice and procedure of the Calcutta High
<:;ourt and who happcn<lcd to be present before us at another stage
of the hearing of the co;o 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 .................................... .
We our selves are personally familiar with the practice followed in
H the Madras, Karnataka, Andhra Pradesh, Madhya Pradesh and
S!MARIAS co. v. s. SAMUEL (Chinnappa Reddy, J,) 29

Rajasthan High Courts and we can assert that such a practice is
not heard of in these courts. Some counsel from Bombay who A
were present before us also told us that no such practice is
followed in their High Court. We do not have the slightest doubt
that, if the practice exists any where, it is a most unwholesome
practice, likely to lead to vicious and pernicious fesults. It is a
practice to be strongly deprecated, a practice reminiscent of the
• feudal days when the French nobility could procurea Jettre de cachet
B
under the Sovereign's seal authorising a subject's imprisonment
with out trial and without mention of any reason. It is a practice
, which strikes at the very root of the system of open and even handed
justice as we know it and the sooner it is abandoned the better for
the administration of justice. We express our disapprobation and 0
forbid the practice of entertaining oral applications by any court
in matters of consequence without any record before it. We do not
mean to suggest that oral application may never be made or
entertained by a Court. Far from the contrary. For example, all
applications for adjournment are generally made orally. Often,
during the course of'the hearing of a case it becomes necessary to D
make applications of a formal .nature and such applications are
permitted by the Presiding judge. But in all such cases the court is
already seised ~·or the principal matter or dispute and there is a
record pertaining to it before the court. But we hardly see any
justification for the entertainment of an oral application and the E
issuance of an interim order with no record whatever of what was
submitted to the court or the reasons for the order made by the court.
To permit a procedure by which oral applications may be made and
interim orders obtained without any petition in writing, without
any affidavit having been sworn to as prima facie proof of allegations
and without any record being kept before the court may lead to very F
serious abuse of the process of the court. In fact, we have come
across instances in the past where the Calcutta High Court had
exercised jurisdiction in matters in which no part of the cause of
action arose within its jurisdiction, a situation which would surely
not have arisen if a written and not an oral application had .been
made. Again, we do not mean to suggest that other urgent oral G
applications may never be made. If someone is going to be
deported in a few minutes or if some grossly inenquitous act is
about to be perpetrated and any delay would result in the fait
accompli of a monstrosity, urgent oral applications may be moved
and urgent interim order issued. If urgent interim orders are
imperative, at least skeletal applications setting out the b~i:e t"al;t"
30 SUPREME COURT REPORTS [1985) l s.c.R.

A and the questions involved should be insisted upon. A detailed
application could b¢ permitted to be filed later. Surely a Court
would be in a more advantageous position with something in writing
from a party who can take responsibility for the statements made than
an oral submission based on oral instructions from "God knows
B who". If the matter is so urgent as not even to brook any insistence
upon a written application, the judge should at least take the trouble
and the care to record in his order the fact~ mentioned to him and
the submissions made to him. It is essential that there be a
contemporaneous record. Otherwise the Court ceases to be a
court of record. After all there are always two sides to a: picture.
c ln the absence of a petition in writing, in the absence of an order '
containing a narration of the facts and the reasons for the orders,
what is an affected person to do ? What allegation is he supposed
to meet? How is he to avert the mischief and damage which may
result from the order? Is he to await the pleasure of the petitioner
who having obtained an interim order is naturally interested in not
D filing his written petition till the very last minute so as to prolong
the life of the interim order and the mischief. One may very well
imagine a case where a party instructs an Advocate to move an oral
application before a Judge, obtains an interim order and disappear
from the scene without filing any regular petition. What is the
under taking worth in such an event ? The facts of this very case,
E we shall presently point out, have led to such au abuse.

To resume the Stranger-than-fiction story, on 30th March 1984
itself, Shri K.K. Bandhopadhyay, Advocate, Calcutta sent a telegram
to the Deputy Commissioner, District Andaman, Port Blair.
f informing him about the order of stay granted by the Calcutta High
Court. The Deputy Commissioner duly informed M/s Samerias
Trading Co. Pvt. Ltd. about the stay granted by the Calcutta
High Court. Immediately on receipt of the information, the
representative of M/s Samarias Trading Co. Pvt. Ltd. and their
Advocate went to Calcutta on 2.4. 1984 where they obtained
G confirmation that a learned Single Judge of the Calcutta High Court
had made an order such as claimed by Shri K.K. Bandhopadhyay
in his telegram. M/s Samarias Trading Co. Pvt. briefed a senior
Advocate, Shri Saktinath Mukherjee to appear before Shri Justice
Pyne on 3.4.1984. The information was that the writ petition would
be taken up for orders at 2.30 P.M. on 3.4.1984. While the representa-
tive of M/s. Samarias TradinlJ Co. Pvt. Ltd a11<l their advoc~tl'
SAMARIAS co. v. s. SAMULE (Chinnappa Reddy,!.) 31

were waiting in the court, they came to learn that the matter A
had been mentioned to Shri Justice Pyne in his chamber by Shri
Bhola Nath Sen the Senior Advocate representing Mr. S. Samuel
and that the order of status quo had been extended until further
orders. The representative of M/s Samarias Trading Co. Pvt. Ltd.
and their advocate and the Deputy Commissioner of Andamans,
B
all of whom were waiting in the Court were not told that the matter
was going to be mentioned in the learned Judge's chamber. As soon
as they came to know about the continuance of the order of sta/Uj
quo, they requested Mr. Justice Pyne to re-consider the order but
, the learned Judge declined to do so.
c
.Interrupting our narrative here for a momemt, we are once
again constrained to comment on the peculiar procedure that was
' adopted in the case. The reason, we are told, for moving the applica-
tion in the chamber of the learned judge instead of in.open Court was
that ]\1r. Justice Pyne was sitting on the Original Side in Court and
so the application which had to made on the Appellate Side had to D
be moved in his chamber. We are unable to understand why it
should be so .and why the application could not be moved in open
court. A sitting in chambers could be held when both sides are
represented and the sittings are held openly so that members of the
public, if they desire to attend, may have access even in the chamber.
To grant interim orders on oral application in chambers when the E
judge is otherwise sitting in open court for other.matters would seri-
ously reflect on the fairness of the procedure adopted by the courts
and may have the unpleasant effect of undermining public confidence
in courts. Sometimes when a learned judge is sitting in a Division
Bench or a Full Bench, some application may have to be made
to him individually in which case permission is always sought in F
open Court to move the application in the chamber. The Registry
then prepares a special list, puts it up on the notice board and
• before and before the Judge's chamber and also circulates a copy
to the Bar Association. This procedure is followed in some
High Coutrs and if such a procedure is followed then alone can
we keep up the high tradition of open justice. A public hearing G
is one of the great attributes of a court, and courts of this
country are therefore requir ~cl to administer justice in public.
Otherwise, there is a risk that justice may even be undone. As most
admirably expressed by Fletcher-Moulton L.J. in Scot' v. Scott
Courts of Justice, who are the guardians of civil liberties, ought
32 SUPREME COURT REPORTS (1985] 2 S.C.R.
to be doubly vigilant against encroachment by themselves. It is not
A
as a matter of policy but as a matter of law' that the hearing of a
cause be public except in the limited class of cases with which we
are not now concerned. Th 1t rule was violated by the learned
Single Judge in this case.
After all the administration of justice is a vital concern first
B of public more than any private party, The public has a right to
present in court and watch the proceeding and its conduct except
in the very rare cases where the very cause of adv.mcement of
justice requires that proceeding be held in camera. In Naresh
Shrtdhar Mirajkar & Ors. v. State of Maharashtra & Anr.(l) it was
observed i,y this Court as follows:-
c
"It is ·well-settled that in general, all cases brought
before the Courts, whether civil,"criminal or others, must be
heard in open Court. Public trail in open court is
undoubtedly essential for the healthy, objective and fair
administration of justice. Trial held subject to the public
D scrutiny and gaze naturally acts as a check against judicial
caprice or vagaries, and serves as a powerful instrument
for creating confidence of the public in the fairness,
. obj< ctivity, and impartiality of the administration of
justice. Public confidence in the administration of justice
is of such great significance that there can be no two
E opinions on the broad proposition that in discharging their
functions as judicial Tribunals, courts must generally hear
causes in open and must permit the public admission to
the court-room. As Bentham has observed :
"In the darkness of secrecy sinister interest, and evil
F in every shape, have full swing. Only in proportion as
publicity has place can any of the checks applicable to
judicial injustice operate. Where there is no publicity
there is no justice. Publicity is the very soul of justice.
It is the keenest spur to exertion, and surest of all guards "
against improbity. It keeps the Judge himself while trying
G under trial (in the sense that) the security of securities is
publicity". (Scott v. Scott)
In Mc pherson v. Mc pherson, ('J the Judicial Committee
observed :
(I) [19661 3 $.C.R. 744.
ff (2) AIR 1936 fC i4~.
SAMARIAS co. v. s. SAMUEL (Chinnappa Reddy, J.) 33

"Moreover the potential presence of the public al- A
most necessarily invests the proceedings with some degree
of formality. And formality is perhaps the only available
substitute for the solemnity by which, ideally at all events
such proceedings, ............... should be characterised. That
potential presence is at least some guarantee that there ;8
>· shall be a certain decorum of procedure ...................... ..
These are some of the considerations which have led
their Lordships to take a more serious view of the absence
of the public from the trial of this (divorce) action than
has obtained in the Courts below. Influenced by them
their Lordships have felt impelled to regard the inroad c
upon the rule of publicity made in this instance-uncon-
cious thought it was-as one not to be justified and
now that it bas been disclosed as one that must be condem-
ned so that it shall not again be permitted.''

To resume the narrative M/s Samarias Trading Co. Pvt. D
Ltd. immediately filed a Writ Appeal under the Letters Patent
before the Division Bench consisting of Mr. Justice M.M. Dutt
and Mr. Justice Ajit Kumar Sen Gupta. The matter was men-
tioned before the Division Bench at 3.45 P.M. By consent of
parties the Writ Appeal filed by M/s Samarias Trading Co. Pvt.
E
Ltd. and the Writ Petition filed by Samuel were both directed to
be listed for hearing bt fore them on 4. 4. 1984. With great di-
fficulty M/s Samarias Trading Co. Pvt. Ltd. were able to get a
copy of the writ petition at that stage, The Division Bench
disposed of both the writ petition and writ appeal finally on
4. 4. 1984 itself. The order of Division Bench was in the fo- :.F
llowing terms :

"By consent of parties, we treat the appeal as on
day's list. As prayed for by the learned Advocates for
the parties, we also treat the Writ Petition as on day's
I~. G

After hearing the learned Advocates for the parties
and after considering the facts and circumstances of the
case, we are of the view that the . auction for vending of
liquor that has been held should be set aside. Accordingly,
we set aside the aµction and direct the Deputy Commis- !#
34 SUPREME COURT REPORTS [1985) 2 s.c.R.

A sioner of Andaman and Nicobu Islands to hold a fresh
auction on the basis of the new t<rms and conditions that
have already been circulated, being annexure F to the
Writ Petition. The auction will be held on the 19th, ).-

April, 1984 at 11 A. M. at the Conference Hall,
Deputy Commissioner's office, at Port Blair. The reserved
B
price for the auction of the liquor shop is fixed at Rs.
30,00000 (thirty lacs). It must be made clear that the
period for which the auction of the liquor shop will
be held will be from 22nd April,1984 till 31st of March,
1985. '
c
The auction will be advertised once in the Stateman in
Calcutta and once in the Indian Express in Madras at
least five days before the auction.

In the event the reserved price of rupees thirty lacs is
'l> not bid; in that case, the writ petitioner undertakes· to ·.this
Court that he will take the licence at the reserved price or·
rupees thirty lacs and in that event the appellant under-
takes tb this Court not to carry on the business of liquor
after the 21st of April, 1984.

The· participants in the bid will be at liberty to take
with them their respective Advocates. ·

The appellant shall be liable to pay to the Administra-
. tion the proportionate licence fee for the days in the month
IF of April U]lto 21st of April, 1984 during which he will carry
on the business of liquor on the basis of his offer already
made, that is, Rs. 25,00000 (Twentyfive lacs} for one
year. The Deputy Commissioner'is diricted to refund to
to the appellant the amount of the deposit which he ,has
made in respect of the disputed auction loss the propor-
G tionate licence fee for the days for which he will carry on
business in the month of April upto 2 lst April, 1984
immediately the day on which the appellant starts vending
liquor. Further, the Deputy Commissioner shall issue
necessary orders enabling the appellant to carry on.the
liquor business till 21st April, 1984.
H
SAMARIAS co v. s. SAMUEL (Chinnappa Reddy, J.) 35

The appeal and the writ appeal are disposed of as A
above. There will be no order for costs.

The appellant does not admit the allegations made in
the writ petition.
8
Let plain copies of !bis order countersigned by the Ass-
istant Ragistrar (Court) be given to the learned Advocates
for the parties".
;

On the next day, the order was modified as follows :-
c
"This matter has been mentioned by both the parties
for the purpose of rectifying one clerical mistake. It is
directed in modification of our order dated April, 4 1984
that in the event the reserve price of Rs. 30,00000 (thirty
lacs) is not bid, in that case, the writ petitioner undertakes
to this Court that ,he will take the licence at the reserved D
price of 30, 00000 and, in that case, the appellant under-
takes to this Court not to carry on the business of liquor
at Rangat, Middle Andmans, pursuant to the existing
licence after the 21st April, 1984. If, however, any new
licence is granted to the appellant pursuant to the auction
that will be held on the 19th April, 1984, the appellant E
will, of course, be able to carry on the business of liquor at
that place upto 31st March, 1985.

Our order dated 4th April, 1984 is modified to the
above extent and the rest of the said order will stand".
F
Aggrieved by the order of the Calcutta High Court M/s
Samarias Trading Co. Pvt. Ltd. filed the special leave petition out
of which the present appeal arises on 11. 4. 1984. One George
Joseph claiming to be "working for gain with Respondent No. I,
Shri Samuel" filed a counter-affidavit purporting to be on behelf of G
Respondent No. 1. At the first l:icaring of the special leave petition
on 17. 4. 1984, Shri S. S. Ray, Senior Advocate, appeared for the
respondent No. I. On that day, the learned counsel appearing for
tbe M/s Samarias Trading Co. Pvt. Ltd. produced before us an affi-
davit dated 16. 4. 1984 purporting to be that of S. Samuel in which
he disclaimed that he ever instructed any one to file any writ peti· H
36 SUPREME COURT REPORTS (1985] 2 S.C.R

A tion in the Calcutta High Court on his behalf. This affidavit
appeared to destroy the very foundation of the order of the Calcutta
High Court. The genuineness of the affidavit was however, dispu-
ted by Shri George Joseph, who was present in court and S. S. Ray,
senior advocate appearing on behalf of S. Samuel. In that situation
we directed the issue of notice to all parties and bound over George
B Joseph to appear before us at the next hearing. We directed that
S. Samnel should be present before us at the next hearing. We
also directed that the re-auction, as ordered by the Calcutta High
Court, should be held on April 19, 1984, but that the sale should
not be confiirmed. The matter came before us again on April 26, '
1984. We were told that the re-auction had fetched a bid of Rs. 36
c lakhs and 80 thousand . We were· also told that because of our
direction that the sale should not be confirmed, the amount required
to be deposited within 48 hours could not be deposited. We, there-
fore, directed the highest bidder to deposit the amount .required to
be deposited under the rules on or before April 30, 1984. Fresh
notices were issued to S. Samuel and we instructed the Registry to
mentionin the notice that if Samuel failed to appear at the next
hearing, a non-bailable warrant would be issued for his arrest. We
also issued a notice to Dr. D. K. B rnerjee, Advocate who prepared
the afliidavit filed by Mr. S. Samuel, in the Calcutta High 1Court to
appear. before us on may 3, 1984. George Joseph was bound over
E to appear before us. He was also directed to file an affidavit selling
out the full facts of the case which were within his knowledge. At
the next hearing on May 3, 1984, we were informed that
Subramaniam had breached the undertaking given to us on April
26, J984, that he would deposit the amount required to be deposited
by the rules before April 30, 1984. We, therefore, had no option k
F but t.o set aside the auction ...... Fortunately the petitioner, M/s.
Samarias Trading Co. Pvt. Ltd. offered to take the shop on lease
for a sum of Rs. 30 lakhs and the Additional Solicitor General
appearing for the administration of the A!idaman and Nicobar
Islandi accepted the offer. The lease was sanctioned by us subject
to the petitioner making the necessary deposit within 10 days from
~G
that day.

On August 7, 1984, George Joseph failed to appear before us
notwithstanding that he had executed a bond undertaking to. be
present before us. We therefore, directed the issue of a non-bailable
warrant against him for hi~ production before us on August 23, 1984.
H Mr. Samuel was also bound over to appear before us on August
SAMARIA$ co. v. s. SAMUEL (Chinnappa Reddy, J J.) 37

23, 1984. On that day, Shri K.K. Bandopadhyay filed a statement A
before us seeking to explain the circumstances under which he appea-
red before Mr. Justice Pyne to assist Shri Ashok Kumar Ganguly.
He is a junior advocate working in the chambers of Shri Mahitosh
Majumdar at whose instance it was that he was asked to assist S h.ri
A.K. Ganguly. He was told that Shri S.D. Benerjee, senior advocate,
would make an oral application. He met a group of people, one of B
whom claimed to be S. Samuel. A consultation was held by Shri
A.K. Ganguly and the gentleman holding himself out as Samuel with
Shri S.D. Banerjee in his presence in the court premises at about
3. t 5 p.m. on the same day. Thereafter Shri S. D. Banerjee entered
the court room of Mr. Justice Pyne and moved an unlisted motion c
before the hon'ble judge.at 4.00 p.m. when the court was about to
rise. Shri S. D. Banerjee sought the permission of the hon 'ble judge
to move the matter in the chamber of the hon 'ble judge by way of an
oral application. Leave was granted and the application was moved
before the learned judge in his chamber at 4.10 p.m. Shri A.K.
Ganguty and Shri K.K. Bandyopadhyay appeared along with Shri
S D. Banerjee. That evening the gentleman who held himself
out as S. Samuel and two or three others met Shri K.K. Bandy-
opadhyay and the latter requested Shri M. Lahiri, advocate to draft a
writ petition. The two of them prepared the writ petition and got it
ready for filing on April J,1984. S. Samuel also handed over a
Vakalatnama to him. On 3rd, the said gentleman appeared before E
the Oath Commissioner and the papers were duly lodged as Mr.
Justice Pyne was sitting on the original side on April 3,1984 accord-
ing to Shri Bandyopadhyay. The oral application had to be moved
in the chamber of the learned judge. Accordingly, Shri B.N.Sen,
senior counsel, moved the application assisted by Shri Lahiri and
Shri Bandyopadhyay. Later the matter was mentioned in court on F
• behalf of M/s. Samarias Trading Co. Pvt. Ltd. before the Division
Bench and an oral prayer was made for suspending the order of Mr.
Justice Pyne. Both the writ petition and the appeal were directed to
be listed on the next day.
G
As we thought it imperative that George Joseph should be
present before us, we adjourned the matter to August 23,1984 for
his production. On August 2'.l,1984, when the matter was next taken
up, George Joseph continued to be absent and a non-bailable·
warrant was issued for his arrest and production on September 11,
,1 984. Mr. Samuel was also bound over to be present in the court H
38 fSUPREMll COUR t REPORTS [1985) 2 S.C.R.
A on September 11, 1984. We also now have before us the affidavits
of S/Shri S. D. Banerjee, B. N. Sen, M. Mazumdar and A. K.
Ganguly of the Calcutta Bar explaining the facts and circumstances
pertaining to the proceedings that took place in the Calcutta High
Court. Their affidavits while confirming the facts already narrated
by us, disclose that none of them personally knew Samuel, as indeed
B
one may not expect an advocate to know every client of his persona-
lly. They were like others, taken for a ride, if one may be permi-
ted to use so common an expression. Their affidavits only empha-
sise what we have already said about the undesirability of making
oral applications of consequence before courts with nothing placed
c in the court's record to vouch for the auti)enticity of tbe facts for-
ming the basis of the representations made to the court, etc. So far
as this appeal is concerned, there is nothing further to be done by us
•
we have now sanctioned the lease of the liquor shop in favour of the
appellants for the year April I, 1984 to March 31, 1985. We are,
however, informed by the petitioner that though the lease has been
D confirmed in their favour from April 1, 1984 to March 31, 1985 for
a sum of Rs. 30 lakhs, the administration of the Andaman Nicobar
Islands, is demanding from them a sum of Rs. One lakh and odd
towards the lease for the few days that they ran the liquor shop
after April 1, 1984 under the orders of Calutta High Court, cal-
culated at the rate of Rs. 25 lakhs per year. We are unable to see
E any justification for the demand since the lease as sanctioned and as
confirmed is admittedly for the entire period Aprill, 1984 to March
31, 1985 for Rs. 30 lakhs. The demand is directed to be withdrawn.
The appeal is allowed in the terms indicated. A notice will however
issue to George Joseph to show cause why he should not be commit-
ted for contempt of court for breaching the undertaking given by
him. A non bailable warrant will also issue for his production before
us. Since tht real Samuel has dis.laimed all responsibility in the
matter and since we do not know who was the person who represen-
ted himself as Samuel before the Calcutta High Court, we are unable
to award costs against anyone.
G

M.,L.A- Appeal disposed of ac;cordiagly.