Supreme Court of India

TIRUPATI BALAJI DEVELOPERS PVT. LTD. AND ORS.versusSTTE OF BIHAR AND ORS.

Citation: 2004 INSC 301
Decided: 21 April 2004
Disposal: Disposed off
Bench: R C LAHOTI

Holding

The Supreme Court held that it possesses superior appellate jurisdiction over High Courts, that a communication under Article 136 must be dealt with administratively rather than as a litigant, and that derogatory observations by a High Court must be expunged to preserve the dignity of the apex court.

Summary

The Patna High Court, exercising its Article 226 jurisdiction, issued an interim order that halted construction activities on Bailey Road, prompting seven builders to seek special leave to appeal before the Supreme Court. The Supreme Court dismissed the SLP, directing the petitioners to approach the High Court, but later issued orders to ascertain whether the High Court had complied with its own directions. A communication from the Supreme Court Registrar to the High Court Registrar was treated judicially by the High Court, which made derogatory observations about the Supreme Court. The Supreme Court held that such communication should be dealt with administratively, that the High Court is not a litigant in this context, and that the adverse observations must be expunged to preserve the dignity of the apex court. Consequently, the petition was disposed of and the High Court was ordered to delete the offending passages.

Issues considered

Whether the Supreme Court, exercising appellate jurisdiction under Article 136, can direct a communication to the High Court for information and compliance.
Whether the Division Bench of the High Court was justified in making the observations recorded in its order dated 3‑12‑2003.
Whether it is proper for the High Court to issue a direction to the Registrar General of the Supreme Court to place its communication before a particular Bench.
The precise hierarchical relationship and relative jurisdiction of the Supreme Court and High Courts.
Whether adverse observations made by a High Court against the Supreme Court should be expunged from the record.

Legislation cited

Code of Civil Procedure, 1908s. Section 100, s. Section 96
Constitution of Indias. Article 124, s. Article 129, s. Article 136, s. Article 139, s. Article 139-A, s. Article 141, s. Article 144, s. Article 226, s. Article 227

Subjects

appellate jurisdictionArticle 136Supreme CourtHigh Courtjudicial hierarchycourt of recordexpungementpublic interest litigationinter‑court relationsjudicial collegiality

Judgment

A TIRUPATI BALAJI DEVELOPERS PVT. LTD. AND ORS.
,V.
STA TE OF BIHAR AND ORS.

APRIL 21, 2004

B [R.C. LAHOTI AND ASHOK BHAN, JJ.]

Constitution of India, 1950:

Articles 124 and 129-Establishment. of Supreme Court-Court of
C Record-Supreme Court and High Courts-Relati01:iship between-Held:
Supreme Court ~nd High. Courts are both courts of record and are
constitutionally independent of each other-High Court is not a court
'subordinate' to the Supreme Court-In the context of appellate jurisdiction,
High Court exercises an inferior or subordinate jurisdiction-Articles 139-
D A, 141 and .J44 give an edge, and assign a superior place in the constitutional
hierarchy, to the Supreme Court over. the High Courts-However, in the
context of Articles 226 and 227 High Courts exercise a larger jurisdiction-
Being constitutional institutions, Supreme Court and High Courts should
deal with each other observing grace and courtesy-Judges not to criticise
each other-Any departure therefrom should be corrected by the appellate
E forum with courtesy and respect and not by way of harsh criticism- While
issuing directions in exercise of its appellate jurisdiction, Supreme Court
cautiously abstains from issuing any "directions" as such and rather uses
alternate and polite expressions.
Article 136-Nature and scope of-Held: Jurisdiction under Art. 136
F is very wide and plenary-However, as a rule of prudence and self-imposed
discipline, Supreme Court refuses to exercise its jurisdiction in the first
instance if the grievance raised is capable of being taken care of by any
lower forum competent to do so-It is an extraordinary jurisdiction vested
in the Supreme Court by the Constitution with implicit trust and faith-lt is
G a discretionary jurisdiction and should be exercised with extraordinary care ·
and caution.

Article 136-Adverse observations-Against Supreme Court by High
Court-Expunction of-Held: Jn order to maintain its dignity as the Apex
Court, such adverse observations expunged from the record of the High
H Court.
494
TIRUPATI BALAJI DEVELOPERS PVT.LTD. v. STATE 495
Article 144-Nature and scope of-On the direction of the Supreme A
Court, Registrar General of Supreme Co.urt addressed a communication to
the Registrar General of the High Court seeking certain information-High
Court dealt with such communication on the judicial side-Correctness of-
Held: Such communication should have been dealt with on the administrative
side-High Court should have appraised the Supreme Court with the correct B
factual position-Such communication not derogatory to the High Court-
High Court not reduced to the_ status of a litigant merely on account of such
communication nor the High Court came to be arrayed as a party nor was
the High Court as an institution and as a court of record called upon to give
an explanation or to respond

Article SO-Separation of judiciary from executive-Independence of
c
judiciary-Held: The appellate hierarchy, examined in the correct perspective,
is a factor strongly contributing towards the independent of the judiciary by
securing finality in adjudication within the system and its insulation from
any outside interference or correction.
D
Interpretation of the Constitution-Guiding factors--Held:
Interpretation of the Constitution cannot fluctuate with the different values
in which different judges believe-Concept of the common good, therefore,
should be the guide.

Code of Civil Procedure, 1908: E
Sections 96 and JOO-Appeal-Nature and scope of-Held: Appeal
implies the removal of a cause of action from any inferior court or tribunal
to a superior one entirely subjecting the facts as well as the law to a review
and a retrial-Postulates of appellate jurisdiction are (i) existence of the
relation of superior and inferior courts-(ii) power in the former to review F
decisions of the latter-Conferral of a principal substantive jurisdiction
carries with it, as a necessary concomitant, power to exercise such other
incidental and ancillary powers without which coriferral of principal power
would be rendered redundant-Also, appeal does _not cease to be an appeal,
though irregular or incompetent-Existence of appellate jurisdiction obliges G
lower jurisdiction to render all its assistance to enable the exercise of
appellate jurisdiction fully and effectively. •

Words & Phrases:

"Appeal"-Meaning of H
496 SUPREME COURT REPORTS [2004) SUPP. I S.C.R.

A A Division Bench of the High Court was seized of a hearing in public
interest exercising its jurisdiction under Article 226 of the Constitution. The
High Court had been issuing orders in the nature of continuing mandamus
and had also been monitoring the compliance.

The High Court passed an interim order on 1-10-2001. There were a
B few builders/developers engaged in construction activity and the interim order
dated 1-10-2001 had the effect of bringing their construction activity to a
standstill substantially. On 17-9-2002, seven of them filed a petition in this
Court seeking special leave to appeal against the High Court's order dated
1-10-2001. In the cause title they had described themselves as interveners/
C petitioners. They were not parties to, nor were noticed in, those proceedings
in which the order dated 1-10-2001 came to be passed, at least they said so in
their application seeking permission to file SLP.

This Court, on 28-10-2002, dismissed the SLP and directed them to
approach the High Court putting forth their case and grievance, if any, and
D pray for vacating or modifying the interim order dated 1-10-2001 passed by
the High Court. This Court further held that the petitioners could approach
the Chief Justice of the High Court for expediting the hearing of the said
matter.

On 5-4-2003 interim applications were filed by the petitioners in this
E Court submitting that their applications praying for vacating of the interim
order dated 1-10-2001 were already filed on 16/17-7-2002 but no date had
been fixed for hearing the stay-vacate application. It was also mentioned in
the application that mentioning slips were submitted which were taken on
record to be put up when the Bench was available. It was further stated that
F after the order of this Court dated 28-10-2002 such mentioning slips were
filed before the Chief Justice of the High Court on three different days praying
for early listing of the matter but no orders were passed. The averments made
in the application were supported by affidavit and also documents which.
consisted mostly of copies of records of proceedings in the High Court.

G This Court directed issue of notice on the applications. On 3-11-2003,
a three-Judge Bench presided over by the Chief Justice of India, after hearing
the counsel for the parties appearing, and to ascertain if the averments made
by the petitioners were correct, called for a response from the High Court.
The order of this Court was communicated by the Registry of this Court to
the Registrar General of the High Court.
H
TIRUPATI BALAJI DEVELOPERS PVT. LTD. v. STATE 497
The Registrar General of the High Court prepared a note and put up A
the same before the Chief Justice of the High Court for consideration. The
note seemed to have been taken up for consideration not on the administrative
side but on the judicial side. The High Court had taken a strong exception to
the order dated 3-11-2003 of this Court forming an impression as if this Court
had 'directed' the High Court- as an institution - 'to give an explanation'.
B
The observations made by the High Court in the impugned order dated
3-12-2003 gave rise to the following questions:-

(a) Could not this Court, exercising appellate jurisdiction under
Article 136 of the Constitution, have directed a communication being
addressed to the High Court calling for information with the object C
of (i) ascertaining the facts, (ii) securing compliance with the direction
contained in the order dated 28-10-2002?

(b) Whether the Division Bench of the High Coo rt was justified - in
law and on considerations of propriety - to make all those D
observations?

(c) Is it proper for the High Court to issue a direction to the Registrar
General of this Court to place its communication for consideration
before a particular Bench?

Disposing of the petitions, the Court E
HELD: 1. Under the constitutional scheme as framed for the judiciary,
the Supreme Court and the High Courts both are courts of record. The High
Court is not a court 'subordinate' to the Supreme Court. In a way the canvass
of judicial powers vesting in the High Court is wider inasmuch as it has
jurisdiction to issue all prerogative writs conferred by article 226 of the F
Constitution for the enforcement of any of the rights conferred by Part III of
the Constitution and for any other purpose while the original jurisdiction of
the Supreme Court is to is~ue prerogative writs remains confined to the
enforcement of fundamental rights and to deal with some such matters, such
as Presidential election or inter-state disputes which the Constitution does G
not envisage being heard and determined by the High Courts. The High Court
exercises power of superintendence under Article 227 of the Constitution
over all subordinate courts and tribunals; the Supreme Court has not been
conferred with any power of superintendence. If the Supreme Court and the
High Courts both were to be thought of as brothers in the administration of Hi
498 SUPREME COURT REPORTS (2004] SUPP. I S.C.R.

A justice, the High Court has larger jurisdiction but the Supreme Court still
remains the elder brother. There are a few provisions, which give an edge,
and assign a superior place in the hierarchy, to the Supreme Court over the
High Courts. So far as the appellate jurisdiction is concerned, in all civil and
criminal matters, the Supreme Court is the highest and the ultimate"cburt of
appeal. It is the final interpreter ofthe law. Under Article 139-A, the S~preme
B Court may transfer any case pending before one High Court to another High
Court or may withdraw the case to itself. Under Article 141 the law decided
by the Supreme Court shall be binding on all courts, including the High Court,
within the territory of India. Under Article 144 all authorities, civil and
judicial, in the territory oflndia-and that would include the High Courts as
C wel~hall act in aid of the Supreme Court. (510-A-El

Bharat Builder Pvt. Ltd v. Parijat Flat Owners Coop. Housing Society
Ltd, (1999) 5 SCC 622, Bharat Earth Movers v. CIT, (2000) 6 SCC 645,
Assistant Collector ofCentral Excise v. Dunlop India Ltd, (1985] 1 SCC 260,
Siliguri Municipality v. Amalendu Das, (1984) 2 SCC 436 and State ofPunjab
D v. Jagdev Singh Talwandi, (1984) 1 sec 596, relied on.

Cassell & Co. Ltd v. Broome, (197211 ALL ER 801, referred to.

2.1. In a unified hierarchical judicial system, which India has accepted
under its Constitution, vertically the Supreme Court, is placed over the High
E Courts. The very fact that the Constitution confers an appellate power on the
Supreme Court over the High Courts, certain consequences naturally flow
and follow. Appeal implies in its natural and ordinary meaning the removal of
a cause from any inferior court or tribunal to a superior one for the purpose
of testing the soundness of the decision and proceedings of the inferior court
F or tribunal. The superior forum shall have jurisdiction to r:everse, confirin,
annul or modify the decree or order of the forum appealed against and in the
event of a remand, the lower forum shall have to rehear the matter and comply
with such directions as may accompany the order of remand. The appellate
jurisdiction inherently carries with it a power to issue corrective directions
binding on the forum below and failure on the part of the latter to carry out
G such directions or show disrespect to or to question the propriety of such
directions would - it is obvious - be destructive of the hierarchical system in
administration of justice. The seekers of justice and the society would lose
faith in both. (510-E-H; 511-AI

Shankar Ramachandra Abhyankar v. Krishnaji Dattatreya Bapat, AIR
H (1970) SC 1, relied on.
TIRUPA TI BALAJI DEVELOPERS PVT.LTD. v. STA TE 499

2.2. Conferral of a principal substantive jurisdiction carries with it, as A
a necessary concomitant of that power, the power to exercise such other
incidental and ancillary powers without which the conferral of the principal
power shall be rendered redundant The appeal does not cease to be an appeal
though irregular or incompetent. (511-C-El

Nagendra Nath Dey v. Suresh Chandra Dey, AIR (1932) PC 165, B
referred to.

2.3. In spite of the Supreme Court and the High Courts being both
constitutionally independent of each other and both being the Courts of record,
to the extent of exercise of appellate jurisdiction, certainly the Supreme Court C
exercises a superior jurisdiction and hence is a superior Court than the High
Courts which exercise in that context an inferior or slabordinate jurisdiction.
' [512-A-B)

Shankar Ramachandra Abhyankar v. Krishnaji Dattatreya Bapat, AIR
(1970) SC 1 and Nagendra Nath Dey v. Suresh Chandra Dey, AIR (1932) PC D
165, relied on.

Chappan v. Moidin Kutti, (1899) 22 ILR 22 Mad. 66, approved.

Wharton's Law lexicon, Story: Commentaries on the Constitution ofthe
United States, Section 1761 and Shimon Shetreet: Judges on Trial, pp. 201- E
202, referred to.

3. The role of the Court of Appeal in checking judicial conduct and in
securing high standards of judicial behavior in courts is manifold. The Court
of Appeal censures and criticizes judicial misconduct in particular cases and
corrects injustices resulting from such misconduct Whether it reverses the F
judgment, quashes the conviction, reduces the sentence, or changes the
judgment in any manner, the disapproval and condemnation of the misconduct
restores the public confidence in the courts, which might otherwise have been
impaired. The party offended or prejudiced, and the public at large, might be
tempted to attribute misconduct of a particular judge to the judiciary as a
whole. The disapproval and criticism of the appellate court, even without G
amending the judgment, eliminates such danger and restores the scales of
justice to their proper balance. (512-E-G)

4. In Chapter IV of the Constitution of India, bearing the heading - the
Union Judiciary - Articles 132 to 136 deal with the appellate jurisdiction of H
500 SUPREME COURT REPORTS [2004] SUPP. 1 S.C.R.

A the Supreme Court. Of all these Articles, it is Article 136, which is worded,
in the widest possible terms. A plenary jurisdiction exercisable on assuming
appellate jurisdiction subject to grant of special leave against any kind of
judgment or order made by any Court or Tribunal and in a cause or matter
has been embodied and vested in the Supreme Court. It is an extraordinary
B jurisdiction vested by the Constitution in the Court with implicit trust and
faith and extraordinary care and caution bas to be observed in the exercise of
this jurisdiction. Article 136 does not confer a right of appeal on a party but
vests a vast discretion in the Supreme Court meant to be exercised by the
considerations of justice, call of duty and eradicating injustice.
[512-G-H; 513-A-B)
c Dhakeswari Cotton Mills v. CIT, AIR (1955) SC 65, relied on.

Moti/al C. Setalvad: Centenary· Lecture Series on Centenary Celebration
of the Advocates. Association of Western India, Centenary Souvenir, p. 134,
referred to.
D
5. The founding Fathers of the Constitution devised a justice delivery
system in the country as one homogenous in .content, taking care of.
independence and hierarchy both, and holding the scales of balance even while
doing so. The Union judiciary and the State .judiciary are undoubtedly
independent of each other except for a few areas relating to jurisdiction as
E indicated above. However, at the same time, emphasis must be laid on the
appellate hierarchy which, examined in the correct perspective, is a factor
strongly contributing towards the independence of the judiciary and securing
finality in adjudication within the system and its insulation from any outside
interference or correction. The delicate balance has been carefully crafted
F and sought to be achieved by independence and interconnection - both existing
simultaneously - of the Supreme Court and the High Courts. These are
'relatiOnships of tension as well as those of cooperation'. [513-F-H; 514-A)

Frank M Coffin: On Appea/:___courts, lawyering, and Judging, pp. 52-
53, referred to.
G
6.1. The framers of the Constituti9n did not think it necessary to
specifically confer power on the Supreme Court to give a command to the
High Court for they were men ofvision and foresight They knew that all the
constitutional functionaries and institutions would act in the best interest of
norms and traditions consistent with democracy and constitutionalism, set
H
TIRUPATI BALAJI DEVELOPERS PVT. LTD. v. ST ATE 501
down in and discernible from the Constitution and as handed down by history A
and generations of judges. Everyone would, it was expected, keep within its
bounds and would not overstep its limits so that ideals and the values remain
a living reality and do not become either an intrusion or an illusion. The
constitutional and democratic institutions, complementing and supplementing
each other, would lend strength to these handed down traditions and would
also contribute to developing such rich traditions as would be respected and B
hailed by posterity. This would result in strengthening the working of the
Constitution. [514-E-G)

6.2. In the realms of constitutionalism the values of mutual trust and
respect between the functionaries, nurtured by tradition, alleviate the need to C
codify the rules of the relationship. Experience shows that any rigid
codification of such delicate relationship is advantageous to those bent upon
vilification. A rigid written law makes it difficult to maintain that dignity which
is better and rightly left to be perceived by right-minded people who zealously
uphold the dignity of others as they do their own. [514-G-H; 515-A)
D
7. An institution dealing with another institution under the Constitution
shall have to observe grace and courtesy. No judge shall criticise another
judge and certainly not strongly. Any departure therefrom needs to be
corrected at the earliest and in the larger interest. It is obligatory on an
appellate forum to correct such deviation from rule brought to its notice as
having been committed by a jurisdiction subject to appeal and if it does not do E
so it fails in its duty. Undoubtedly, the corrective step too is taken carefully
with courtesy and respect and not by way of harsh criticism. [513-8-C)

David Pannick: Judges, pp. (127-128), referred to.
8. The Supreme Court, exercising its appellate jurisdiction, is called F
upon to issue directions, which are not only its privilege as appellate forum
but also often a necessity for meeting the demands of justice and effective
exercise of appellate power. Yet, it cautiously abstains from issuing any
'directions' as such and rather uses the alternative and polite expressions
like-"we request the High Court", "the High Court is expected to", "we trust G
and hope that the High Court will/shall", spelled out by courtesy and the
respect and regards which the Supreme Court has - and must have - for High
Courts. The practice has developed and gained ground as tradition. Barring
may be an instance or two, which too must have been avoidable, there has been
no occasion either for any disrespect having been shown by the Supreme Court
to the High Court or vice versa or for this Court having been called upon to H
502 SUPREME COURT REPORTS [2004] SUPP. 1 S.C.R.

A take cognizan~e of any instance of disrespect shown to it by any High Court.
(518-F-H; 519-AJ
9.1. Cooperation can be achieved and tension avoided between two judicial
institutions if only judicial collegiality is learnt, nobility prevails and Holme's
humility rules. (520-B-C]
B Benjamin N. Cardozo: "Selected Writings of Benjamin Nathan Cardozo
pp. 427-428, Harry T. Edwards: "Judicial Norms: A Judge's Perspectives",
Washington University School of Law, Oliver Wendell Holmes Jr. Extracted
and cited by J.H. Wooten, "Creativity in the Law" (1972) 4 Aust J Forensic
Sciences p. 107, referred to.
c
9.2. The interpretation of the Constitution cannot fluctuate with the
different values in which different Judges believe. It is the concept of the
common good, which ought to guide us-as institutions and as individuals--
in testing times. (520-D-E)

D H.M Seervai: "Constitutional Law of India" 4th Edn., Silver Jubilee
Edn., Vol. 3 Para 25. 481, referred to.

10. Jurisdictionally, and in the hierarchical system, so far as the
exercise of appellate jurisdiction is concerned, undoubtedly the Supreme Court
is a superior forum and the High Court an inferior forum in the sense that
E the latter is subjected to jurisdiction, called 'appellate jurisdiction', of the
former. (520-F-G)

11. The very existence of appellate jurisdiction obli~es the lower
jurisdiction to render all of its assistance to the higher jurisdiction to enable
F the exercise of appellate jurisdiction fully and effectively. The lower forum
may be called upon to certify its record of ca~ and proceedings to the superior
forum. The superior forum may stand in need of some information which,
being in the possession or knowledge of the subordinate forum, shall have to
be made available only by it. The superior forum may issue a stay order or
restraint order or may suspend, expedite or regulate the proceedings in the
G subordinate forum. During or at the end of the exercise of the appellate
jurisdiction any direction made by the higher forum shall have to be complied
with by the lower forum, otherwise the hierarchy becomes meaningless.
(520-G-H; 521-B-CJ

12. Though, the jurisdiction conferred on the Supreme Court under
H Article 136 is very wide and no technicality can prevent or hinder the effective
TIRUPATI BALAJI DEVELOPERS PVT. LTD. v. STATE 503
exercise of such jurisdiction, yet as a rule of prudence and self-imposed A
discipline the superior forum refuses to exercise its jurisdiction in the first
instance if the grievance raised is capable of being taken care of by any lower
forum competent to do so. (521-B-C)

13. On 28-10-2002, this Court exercised self-control and refused to
entertain the SLP forming an opinion as to why it should step in and why it B
should not leave it open to the High Court to freely exercise its constitutional
jurisdiction and that too in public interest in the present case. However, the
grievance raised needed to be heard early; to form such opinion and issue a
consequential direction undoubtedly were within the competence of this Court
under Article 136 of the Constitution. Later on, the order dated 3-11-2003 C
came to be passed on the petition supported by an affidavit, stating the facts
and mentioning the dates, giving rise to the occasion for filing the same, which
was, if not a complaint, at least a grievance that the High Court had failed to
comply with the order dated 28-10-2002 passed by this Court in exercise of
its jurisdiction conferred by Article 136 of the Constitution. The Court felt
that the order should have been complied with. The Court proceeded with the D
assumption that in the ordinary course it would not be persuaded to think,.
much less believe, that the High Court was not complying with the order of
this Court, if only the order has been brought to its notice. So, to ascertain
the facts this Court called for a response. The Registrar General of this Court
addressed a communication to the Registrar General of the High Court E
seeking information. The communication should have been dealt with on the
administrative side and responded to by the Registrar General of the High
Court, just apprising this Court of the correct factual position. If there was
no error, no default and nothing like non-compliance at the end of the High
Court, an appraisal in that regard contained in a communication with ~rief
.necessary facts by the Registrar General of the High Court to the Registrar F
· General of this Court, which the latter would have placed for consideration of
this Court on the judicial side, was enough. Such a procedure is followed quite
often and nobody has ever taken any exception to this practice barring the
singular instance which is reluctantly being dealt with. [521-D-H; 522-A-B]
15.1. The wrong impression created in the minds of the Division Bench G
of the High Court in this case can only be regretted. Merely on account ofan
innocuous communication by this Court addressed to the Registrar General
of the High Court, the High Court was not reduced to the status of a litigant
nor the High Court came to be arrayed as a party nor the High Court as an
institution and as a court of record was called upon to give an explanation or H

-•
I
504 SUPREME COURT REPORTS (2004] SUPP. l S.C.R.

A to respond. (522-B-C)
15.2. It is obvious that any person approaching this Court by indulging
into misadventure of suggestio fa/si or suppressio veri, would suffer the
consequences but that would be only after the facts have been ascertained.
Ordinarily, what was there to disbelieve the averments made in the petition,
B filed· before this Court detailing the facts and supported by an affidavit? Yet,
the Court did not act in haste on the petition and did not pass any order a-
parte. Acting with care, caution and circumspection - and obviously with
respect to the High Court - it held its hands back and tried to ascertain the
facts. There was absolutely no occasion for the High Court to feel annoyed
C and disturbed much less to feel perturbed and react in the manner in which
it has unfortunately done. The High Court should have known that both the
order, the order.dated 28-10-2002 as also the order. dated 3-11-2003 were
passed:by the Benches headed by the Chief Justice oflndia, the paterfamilias
of the Indian Judiciary. {522-D-F)

D 15.3. The order dated 3-12-2003, passed by the Division Bench of the
High Court, is unfortunate. This Court is not feeling too happy to pass the
present order. This Court's embarrassment stands multiplied when it is
noticed that the Division Bench of the High Court, which passed the order,
dated 3-12-2003; too w~s headed by the Chief Justice of the High Court. Ali
E this was avoidable and should have been avoided far from making a mountain
out of a .molehill {520-F-G)

16. However, this Court has to maintain the dignity of the august
institution as the Apex Court of the country and undo a mistaken assumption
of the High Court, that any order of this Court was iotended to undermine
F the High ~ourt's status as a constitutional court or court of record. Such an
order of the High Court, which has done no good either to this Court or to
the High Court itself, having been brought to the notice of this Court, 'this
Court is constitutionally obliged not to blink its eyes but to act. Therefore, it
is directed that all those passages which have been extracted and reproduced
in the earlier part of the judgment, from the order dated 3-12-2003 passed by
G the Division Bench of the High Court, be expunged and scored out as
derogatory of this Court, disparaging, totally uncalled for and making
observations in the proceedings of this Court which the High Court should
not have made. Such remarks should not continue to be retained on the record
of the High Court as a Court of record. The order shall be carried out in
H letter and spirit and the compliance reported to the Registrar General of this
TIRUPATI BALAJI DEVELOPERS PVT. LTD. v. STATE [LAHOTI, J.] 505
Court by the Registrar General of the High Court. This Court departs with A
the good hope that there would be no other occasion for it to make such an
order. [522-G-H; 523-A-B-C)

CIVIL APPELLATE JURISDICTION : S.L.P. (C) No. of2004 CC Nos.
8071-8072 of 2002.
B
From the Judgment and Order dated l. l 0.200 I of the Patna High Court.
in C.W.J.C. No. 6941and6997of1988

P.S. Mishra, Tathagat H. Vardhan, Amitabh C. Mishra, Dhruv Kumar Jha
and C.D. Singh for the Petitioners.
c
Sunil Roy, Manish Mohan, B.M. Prasad, Mrs.Anita Mohan and Ugra
Shankar Pd., for the Respondents.

The Judgment of the Court was delivered by

R.C. LAHOTI, J. A Division Bench of the High Court of Judicature at D
Patna is seized of a hearing in public interest exercising its jurisdiction under
Articles 226 of the Constitution. The High Court is feeling concerned over the
drainage system, the sewerage syster.;., the drinking water supply system, the
kerb on the road being in shambles and reallocating of footpaths. The High
Court seems to have chosen one road as model habitat area so as to set an
example for other roads conforming with the discipline governing urbanization E
and urban planning according to law and ensuring that future generations get
a safer city to live in, a civic city, with civic amenities, for the benefit of civic
citizens. The High Court has been issuing orders in the nature of continuing
mandamus and has also been monitoring the compliance. On 1.10.2001, the
High Court passed an interim order containing the following directions: (a) F
The street alignment is in a straight or a gentle curve natural to the road and
the set backs, from the centre of the road, as indicated in the details given
to the court in column 3, are maintained. Buildings eclipsed by a 110' (feet)
distance on either side of the road are to be identified; (b) The storm-drain
will be planned so that they run contiguous to the boundary alignment of the
s_ix properties shown and measured, reference order dated 28 September, 200 l; G
(c) The flanks/footpaths/side walks will run parallel in a straight line between
the storm-drain and the carriage width of the metal road; and (d) At any
intersection of the Bailey Road, a diameter of I00 metres from the centre of
the road will be planned as a protected area and set backs laid so that there
is no blind spot or obstruction to sight. Minimum frontage and set back off H
506 SUPREME COURT REPORTS [2004) SUPP. I S.C.R.

A this circumference is to be maintained at I IO' (feet). One of the effects of the
proceedings before the High Court and the orders passed therein was the
restraint of all construction work on the entire stretch of the public street, the
Bailey road, within I IO feet from the centre of the road on either side. The
local authorities were restrained from approving any map for construction
B within the said stretch of the area.

It appears that there were a few builders/developers engaged in
construction activity and the interim order dated l.10.2001 had the effect of
bringing their construction activity to a standstill substantially. On 17.9.2002,
seven of them filed a petition in this Court seeking special leave to appeal
C against the High Court's order dated l.10.2001. In the cause title they had
described themselves as interveners/petitioners. It appears that they were not
parties to, nor were noticed in, those proceedings in which the order dated
l.10.2001 came to be passed, at least they say so in their application seeking ·
permission to file SLP accompanying the SLP. When the matter came up for
hearing before this Court on 28.10.2002, an obvious query raised by the Court
D and put to the learned counsel for the petitioners was that if, on their own
showing, they were not parties impleaded before the High Court, then why
should they not approach the High Court putting forth their case and grievance,
if any, and pray for vacating or modifying the interim order dated l.10.2001
passed by the High Court. The learned counsel for the petitioners sefl:ms to
E have brought to the notice of this Court that the petitioners had already
applied for vacation of the interim order dated l.10.2001 before the High
Court. This Court, in its order dated 28.l 0.2002, held - "In that view of the
marier, we are not inclined to entertain these petitions .and the same are,
accordingly, dismissed. The petitioners may aplJroach the Hon'ble the Chief
Justice for expediting the hearing of the said matter. We hope and trust that :
F the matter would be decided at an early date"

On April 5, 2003, I.A. Nos. 8-9 of2003 were filed by the petitioners in
this Court submitting that their applications praying for vacating of the
interim order dated l.10.2001 were already filed on 16/i?.7.2002 but till date
no date has been fixed for hearing the stay vacate application of theirs. It is ·
G also mentioned in the application that mentioning slips were submitted which
were taken on record to be put up when the bench is available. It was further
stated that after the order of this Court dated 28.10.2002 such mentioning slips
were filed before the Hon'ble the Chief Justice on 21.11.2002, 12.12.2002 and
16.1.2003 praying for early listing of the matter but no orders were passed.
H The averments made in the application are supported by affidavit and also
TIRUPATI BALAJI DEVELOPERS PVT. LTD. v. STATE [LAHOTI. J.] 507
documents which consist mostly of the copies of records of proceedings. in A
.
High Court. The applicants had sought for recalling of the order of this Court
disposing of the SLP, the SLPs being taken up for hearing and the operation
of the interim order dated 1.10.2001 passed by the Patna High Court being
stayed. The applicants enclosed a chart (Annexure P-8) with the application
setting out the amount of monetary Joss which they had already suffered and
were continuing to suffer month by month on account of their applicatiol)s B
to vacate the stay not being taken up for hearing by the High Court.

This Court directed notice on the applications to be issued. On 3.11.2003,
a three-Judges Bench presided over by Hon'ble the Chief Justice of India,
after hearing the learned counsel for the parties appearing, and in their anxiety C
for ascertaining if the averments made by the petiti~ners were correct, called
for a response from the High Court. The Court wished to ascertain if the
petitioners had filed any applications and if the same were not listed for
hearing. Obviously the purpose of this Court in passing the order dated
3.11.2003 was to ascertain the facts, also to emphasise the need for an early .
listing of the petitioners' 'stay vacate applications' if that was not already D
done. The order of this Court was communicated by the Registry of this Court
to the Registrar General of the High Court.

It appears that the Registrar General of the High Court prepared a note
and put up the same before Hon'ble the Chief Justice of Patna High Court
for consideration. The note seems to have been taken up for consideration E
not on the administrative side but on judicial side. The High Court seems to
have taken a strong exception to the order dated 3.11.2003 of this Court
forming an impression as if this Court has 'directed' the High Court - as an
institution - 'to give an explanation'. A few excerpts from the order dated
3.12.2003 passed by the Division Bench of the High Court are as under:- p
"It is unfortunate, very unfortunate, that a dead and decided case
was revived and sent for from the record room on the application of
an intervenor, who was not even a party to the cause in any case, and
an explanation has been sought from the High Court. The High Court
has been asked to give a response to the Supreme Court on the G
complaint of a quasi-litigant, who has not filed a case himself at the
High Court but seeks certificate from the Supreme Court that the High
Court has demurred. How does the High Court respond? The Bench
providing an explanation to the Supreme Court? The Registrar General,
High Court, filing an explanatory note to the Registrar General, Supreme H
508 SUPRbME COURT REPORTS [2004) SUPP. I S.C.R.

A Court? Should the High Court engage a lawyer? Has the High Court
erred in any judgment? Is the High Court an adversary?

This Court feels constrained to point out that perjury has taken
place at the Bar of the Supreme Court. Falsehoods have been stated.
The sanctity of public justice has been defiled in two Courts, the High
B Court and the Supreme Court.

The report of the Registrar General, which details·this dishonesty,
should be an eye-opener as to how public justice has been defiled by
falsehoods. And once the stream of justice has been polluted, it is like
a poisoned river which kills rather than gives life.
c xxx xxx xxx

In this case, an intervenor has given a picture to the Supreme Court
that no proceedings in this case have been going on in the High
Court, which is untrue. Proceedings have been going on regularly.
D The Supreme Court has sought the "response" of the High Court,
fortunately observing "on the ground alleging that despite petitioners
mentioning .... for early hearing... .'T. This is the response. This Court
may have had no occasion to give its response had it not been
sought. Courts ai-e not meant to chase their orders, as they are meant
E to discharge their obligations with a total sense of detachment.
Adversary parties are meant to point out falsehoods before the Court,
but even this is an abnormality,falsehoods are not expected to be the
normalcy of Court proceedings.

Then, in a Public Interest Litigation, a financially weak party
F bringing a cause and expecting positive action for the public good
may regret the day of approaching the Court, if proceedings are
frustrated by an outsider distorting the issues in a higher Court.

In the case in which a "response" is being sought, the matter is
connected to Urban Planning.
G ,_
xxx xxx

This Court is taking the liberty to speak frankly because a response
was sought. The Registrar General was in a quandary and asked the
Court as to how he should present the response. He is an official,
H should he give it to the Registrar General of the Supreme Court? He
TIRUPA TI BALAJI DEVELOPERS PVT. LTD. v. STATE [LAHOTI, J.] 509
wanted to know, should the judges give an explanation? The only A
answer lies on what is a Superior Court of Record. If the facts are pure
before the Constitution Court in its appellate jurisdiction, which the
Supreme Court oflndia is, all these issues will not arise. If falsehoods
are pleas at the Supreme Court, and the Supreme Court gets the
feeling that some such situation may exist, then there are inany other B
ways of finding out. Seeking an explanation from the High Court at
the instigation of an erring litigant, would be a very sad day.

xxx xxx xxx

This court is very sad to record this order. As concealment of
records and arguing untruths and false pleadings have taken place at C
the Bar of the Supreme Court, which may tantamount to offences
against public justice. It will be only appropriate, in the public interest
and the interest of justice, that a copy of this order may be sent by
the Registrar General to the Registrar General, Supreme Court of India
to be placed (a) before the Hon'ble Court which passed the or~ers D
dated 28 October 2002 and 3 November 2003 and (b) to the Attorney
General oflndia."

In view of the direction of the Patna High Court contained in the last
paragraph of the order, extracted above, and under instructions by the Hon'ble
the Chief Justice of India, the matter has been placed before this Bench uf E
ours. We have gone through the order passed by the Division Bench of Patna
High Court presided over by Hon. the Chief Justice.

A few questions arise. Could not this Court, exercising appellate
jurisdiction under Article 136 of the Constitution, have· directed a
communication be~g addressed to the High Court calling for information with F
the object of (i) ascertaining the facts, (ii) securing compliance with the
direction contained in the order dated 28. l 0.2002 ? Whether the Divi$ion
Bench of the High Court is justified - in law and on considerations of
propriety - to make all those observations as have been extracted and
reproduced hereinabove?·Is it proper for the High Court to issue a direction G
to the Registrar General of Supreme Court of India to place its communicafion
for consideration before a particular Bench of this Court ? These delicate
questions have provided us an opportunity for some consideration and in
exploring into finding out what is the relationship of Supreme Court with High
Courts as two august judicial institutions functioning under the Constitution.
H
510 SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A Under the constitutional scheme as framed for the judiciary, the Supreme
Court and the High Courts both are courts of record. The High Court is not
a court 'subordinate' to the Supreme Court. In a way the canvass of judicial
powers vesting in the High Court is wider inasmuch as it has jurisdiction to
issue all prerogative writs conferred by Article 226 of the Constitution for the
enforcement of any of the rights conferred by Part III of the Constitution and
B for any other purpose while the original jurisdiction of Supreme Court to issue
prerogative writs remains confined to the enforcement of fundamental rights
and to deal with some such matters, such as Presidential election or inter-state
disputes which the Constitution does not envisage being heard and determined
by High Courts. The High Court exercises power of superintendence under
C Article 227 of the Constitution over all subordinate courts and tribunals; the
Supreme Court has not been conferred with any power of superintendence.
If the Supreme Court and the High Courts both were to be thought of as
brothers in the administration of justice, the High Court has larger jurisdiction
but the Supreme Court still remains the elder brother. There are a few provisions
which give an edge, and assign a superior place in the hierarchy, to Supreme
D Court over High Courts. So far as the appellate jurisdiction is concerned, in
all civil and criminal matters, the Supreme Court is the highest and the ultimate
court of appeal. It is the final interpreter of the law. Under Article 139-A, the
Supreme Court may transfer any case pending before one High Court to
another High Court or may withdraw the case to itself. Under Article 141 the
E law declared by the Supreme Court shall be binding on all courts, including
High Courts, within the territory of India. Under Article 144 all authorities,
civil and judicial, in the territory of India - and that would include High Court
as well - shall act in aid of the Supreme Court.

In a unified hierarchical judicial system which India has accepted under
F its Constitution, vertically the Supreme Court is placed over the High Courts.
The very fact that the Constitution confers an appellate power on the Supreme
Court over the High Courts, certain consequences naturally flow and follow.
Appeal implies in its natural and ordinary meaning the removal of a cause
fror11 any inferior court or tribunal to a superior one for the purpose of testing
G the soundness of decision and proceedings of the inferior court or tribunal.
The superior forum shall have jurisdiction to reverse, confirm, annul or modify
the decree or order of the forum appealed against and in the event of a remand
the lower forum shall have to re-hear the matter and comply with such
directions as may accompany the order of remand. The appellate jurisdiction
inherently carries with it a power to issue corrective directions binding on the
H forum below and failure on the part of latter to carry out such directions or
TIRUPATI BALAJI DEVELOPERS PVT. LTD. v. STATE [LAHOTI, J.] 511

show disrespect to or to question the propriety of such directions would - A
it is obvious - be destructive of the hierarchical system in administration of
justice. The seekers of justice and the society would lose faith in both.

In Shan/car Ramachandra Abhyankarb v. Krishnaji Dattatraya Bapat,
AIR (1970) SC 1, this Court pointed out that appeal is the right of entering
the superior court and invoking its aid and interposition to redress the error a
of the court below. There are two important postulates of constituting the
appellate jurisdiction: (i) the existence of the relation of superior and inferior
court; and (ii) the power in the former to review decisions of the latter. Such
jurisdiction is capable of being exercised in a variety of forms. An appeal is
a process of civil law origin and removes a cause, entirely subjecting the facts C
as well as the law, to a review and a retrial.

The very conferral of appellate jurisdiction carries with it certain
consequences. Conferral of a principal substantive jurisdiction carries with it,
as a necessary concomitant of that power, the power to exercise such other
incidental and ancillary powers without which the conferral of the principal D
power shall be rendered redundant. As held. by their Lordships of the Privy
Council in Nagendra Nath Dey and Anr. v. Suresh Chandra Dey and Ors.,
AIR (1932) Privy Council 165 (Sir Dinshah Mulla speaking for the bench of
five) an appeal is an application by a party to an appellate Court asking it to
set aside or revise a decision of a subordinate Court. The appeal does not E
cease to be an appeal though irregular or incompetent. Placing on record his
opinion, Subramania Ayyar, J. as a member of Full Bench (of five judges) in
Chappan v. Moidin Kutti, (1899) 22 ILR Mad. 68 (at p.80) stated inter alia
that appeal is "the removal of a cause or a suit from an inferior to a superior
Judge or Court for re-examination or review". According to Wharton's Law
Lexicon such removal of a cause or suit is for the purpose of testing the Fi
soundness of the decision of the inferior Court. In consonance with this
particular meaning of appeal, 'appellate jurisdiction' means "the power of a
superior Court to review the decision of an inferior Court". "Here the two
things which are required to constitute appellate jurisdiction, are the existence
of the relation of superior and inferior Court and the power on the part of the
former to review decisions of the latter. This has been well put by Story:- "The G
essential criterion of "appellate jurisdiction is, that it revises and corrects the
proceedings in a cause already instituted and does not create that cause. In
reference to judicial tribunals an appellate jurisdiction, therefore, necessarily
implies that the subject-matter has been already instituted and acted upon by
some other Court, whose judgment or proceedings are to be revised," (section H
512 SUPREME COURT REPORTS [2004) SUPP. I S.C.R.

A 1761, Commentaries on the Constitution of the United States)."

Adapting the abovesaid pronouncements of authority as guiding the
resolution of the issue in our hands we may venture to say that in spite of
the Supreme Court and the High Courts being both constitutionally independent
of each other and both being the Courts of record, to the extent of exercise
B of appellate jurisdiction certainly the Supreme Court exercises a superior
jurisdiction and hence is a superior Court than the High Courts which exercise
in that context an inferior or subordinate jurisdiction,

What is the significance of creating an appellate forum?. And, what is
C sought to be achieved by creati!>n of such hierarchy in the justice
administration system ?

"The Appellate Court plays an important r91e in securing high standards
of judicial behaviour in court ................... Bearing. this in mind, the role of the
Court of Appeal in checking judges should not be u1.1derestimated..................The
D Court of Appeal regards itself as fulfilling a disciplinary function ....................The
Court of Appeal carefully phrases its criticism. The Court usually makes clear
that they do not doubt that "the judge was actuated by the best motives"
or that "in a strong desire to do justice a judge may make mistakes'', but they
use a language clear enough to ensure that the judge to whom the criticism
is addressed, as well as other judges, get their message." (See - Judges on ·
E Trial, Shimon Shetreet, pp.201-202). "The role of the Court of Appeal in
checking judicial conduct and in securing high standards of judicial behaviour
in court is manifold. The Court of Appeal censures and criticizes judicial
misconduct in particular cases and corrects injustices resulting from such
misconduct. Whether it reverses the judgment, quashes the conviction, reduces
the sentence, or changes the judgment in any·manner, the disapproval and
F condemnation of the misconduct restores the public confidence in the courts
which might otherwise have been impaired. The prufy offended or prejudiced,
and the public at large, might be tempted to attribute misconduct of a particular
judge to the judiciary as a whole. The disapproval and criticism of the
appellate court, even without amending the judgment, eliminates such danger
G and restores the scales of justice to their proper balance." (ibid, pp.203-204).

In Chapter IV of the Constitution of India, bearing the heading - the
Union Judiciary, Articles 132 to 136 deal with appellate jurisdiction of the
Supreme Court. Of all these Articles, it is Article 136 which is wotded in the
widest possible tenns. A plenary jurisdiction exercisable on assuming appellate
H jurisdiction subject to grant of special leave against any kind of judgment or
TIRUPATI BALAJI DEVELOPERS PVT. LTD. v. STATE [LAHOTI, J.] 513
order made by any Court or Tribunal and in ariy cause or matter has been A
embodied and vested in the Supreme Court. It is an extraordinary jurisdiction
vested by the Constitution in the Court with implicit trust and faith and
extraordinary care and caution has to be observed in the exercise of this
jurisdiction. Article 136 does not confer a right of appeal on a party but vests
a vast discretion in the Supreme Court meant to be exercised by the B
considerations of justice, call of duty and eradicating injustice.

The extent and dimension of jurisdiction conferred on the Supreme
Court was well brought out by Chief Justice M.C. Mahajan in the case of
Dhakeswari Cotton Mills v. Commissioner of Income-tax, West Bengal, AIR
(1955) SC 65 wherein he said - "It is not possible to define with any precision C
the limitations on the exercise of the discretionary jurisdiction vested in this
Court by the constitutional provision made in Article 136. The limitations,
whatever they be, are implicit in the nature and character of the power itself.
It being an exceptional and overriding power, naturally it has to be exercised
sparingly and with caution and only in special and extraordinary situations.
Beyond that it is not possible to fetter the exercise of this power by any set D
formula or rule ................... It is, however, plain that when the Court reaches
the conclusion that a person has been dealt with arbitrarily or th~t a court
or tribunal within the territory of India has not given a fair deal to a litigant,
then no technical hurdles of any kind like the finality of finding of facts or
otherwise can stand in the way of the exercise of this power because the E
whole intent and purpose of this Article is that it is the duty of the Court to
see that injustice is not perpetuated or perpetrated by decisions of courts and
tribunals because certain laws have made the decisions of these courts or
tribunals final and conclusive."

The Founding Fathers of the Constitution devised a justice delivery F
system in the country as one homogenous in content, taking care of
independence and hierarchy both, and holding the scales of balance even
while doing so. The Union judiciary and the State judiciary are undoubtedly
independent of each other except for a few areas relating to jurisdiction as
we have very briefly indicated hereinbefore. However, at the same time, we
cannot resist laying emphasis on the appellate hierarchy which, examined in G
the correct perspective, is a factor strongly contributing towards the
independence of the judiciary and securing finality in adjudication within the
system and its insulation from any outside interference or correction. The
delicate balance has been carefully crafted and sought to be achieved by
independence .and interconnection - both existing simultaneously - of the H
514 SUPREME COURT REPORTS [2004) SUPP. I S.C.R.

A Supreme Court and the High Courts. There are 'relationships of tension as
well as those of cooperation', to borrow the expression employed by Frank
M. Coffin in his work 'On Appeal - Courts, Lawyering, and Judging'. He says,
"on the sensitive and sophisticated application of the various doctrines
governing these relationships depends in largl! part the effective functioning
B of our unique form of federalism." (at pp.52-53)

Delivering a lecture on 25.7.1963, in Centenary Lecture Serie~ organised
on the occasion of Centenary Celebration of the Advocates Association of
Western India, Motilal C. Setalvad - the great Indian jurist dealt with the role
of the Supreme Court under the Constitution and said - "the exercise by the
C court of its jurisdiction under article 136 bears witness to the wisdom and
foresight of the court. That article confers on the court an overriding power
to examine the decision of all courts and tribunals in the country, a power
which is larger than the Crown prerogative exercised by the Privy Council and
which is not capable of being restricted by ordinary legislation. The court has
refused to define the limitations on the power under that article and laid down
D that these were inherent in its exceptional and overriding nature." (Centenary
Souvenir, p.134).

How the Supreme Court and the High Court have to deal with each
other specially when the Supreme Court is exercising its appellate jurisdiction
over a decision by, or proceedings - concluded. or pending - in the High
E Court? The Constitution has clearly divided the jurisdiction between the two
institutions and while doing so these institutidns have to have mutual respect
for each other. The framers of the Constitution did not think it necessary to
specifically confer power on the Supreme Court to give a command to the
High Court for they were the men of vision and foresight. They knew that
F all the constitutional functionaries and institutions would· act in the best
interest of norms and traditions consistent with democracy and
constitutionalism, set down in and discernible from the Constitution and as
handed down by history and generations of judges. Everyone would, it was
expected, keep within its bounds and would not over-step its limits so that
the ideals and the values remain a living reality and do not become either an
G intrusion or an illusion. The constitutional and democratic institutions,
complementing and supplementing each other, would lend strength to these
handed down traditions and would also contribute to developing· such rich
traditions as would be respected and hailed by posterity. This would result
in strengthening the working of the Constitution. In the realms of
H constitutionalism the values of mutual trust and respect between the
TIRUPATI BALAJI DEVELOPERS PVT. LTD. v. STATE [LAHOTI ,J.) 515
functionaries, nurtured by tradition, alleviate the need to codify the rules of A
the relationship. Experience shows that any rigid codification of such delicate
relationship is advantageous to those bent upon vilification. A rigid written
law makes it difficult to maintain that dignity which is better and rightly left
to be perceived by right-minded people who zealously uphold the dignity of
others as they do their own.
B
An institution dealing with another institution under the Constitution
shall have to observe grace and counesy. No judge shall criticize another
judge and certainly not strongly. Any departure therefrom needs to be
corrected at the earliest and in the larger interest. It is obligatory on an
appellate forum to correct such deviation from rule brought to its notice as C
having been committed by a jurisdiction subject to appeal and if it does not
do so it fails in its duty. Undoubtedly, the corrective step too is taken
carefully with courtesy and respect and not by way of harsh criticism. An
~stance quoted by David Pannick is worthy of reference and reverence. In
a 1971 case Mr.Justice Lawson gave his reasons for doubting the correctness
of an earlier decision of the Court of Appeal. Nevertheless, he concluded, 'I D
am bound by the decision in [the earlier case], although I am compelled to
say, again with the greatest respect, that I believe it to have been wrongly
decided'. The Court of Appeal was very unhappy. Lord Justice Davies replied,
'with the greatest respe.ct to Lawson J', that he thought that 'those
observations were out of place. It is unusual, and, I am bound to say, E
undesirable, in my opinion, for a judge sitting at first instance ..... to express
the opinion, although accepting that he is bound by it, that a decision, and
a fairly recent decision, of this court was wrong.' (Judges, pp. 127-1'.:lJ).

A great judge and jurist Benjamin N. Cardozo has a little bitter truth to
describe. Cautioning the judges against the official-in-judge being permitted F
to swallow up the man-in-him, Benjamin Cardozo says that there have been
judges in the past who suffered that disaster. However, what Cardozo has in
mind is something more than "the egotism that displays itself in harsh and
!>verbearing manners, in explosive vigour of voice etc. Exuberances such as
these are at times the result of infirmities of temper not unknown altogether
to the bench though happily uncommon; more often they are the defensive G
appliances of weakness or incapacity, conscious of its failings, and hopeful
to divert attention by what seems to be a manifestation of its strength". "The
slumbering beast is in us, and may be waked to life and fury if we feed him
overmuch. The ravening official will seek to swallow up the man. I interpret
the invitation to be with you today as an expression of your judgment that H
516 SUPREME COURT REPORTS [2004] SUPP. l S.C.R.

A whatever mistakes I may have made - and I know that they have been more
than I like to figure or remember - I have at least avoided this one, I have not
allowed the official to swallow up the man. I don't mean that I am entitled to
a great deal of credit for so modest an achievement. In a court where the
tradition of courtesy and equity is so ingrained and inveterate as it is in the
Court of Appeals, one would have to be a pretty hardened sort of sinner to
B be guilty of the particular form of wrongdoing that has its origin in the pride
of office. But then, when you come to think of it, virtues are important in the
inverse order to the credit that is due to those who cultivate and practice
them. No one of us struts about with satisfaction for the self-restraint' involved
in refraining from the crime of homicide, yet if the importance of the virtue
C were the measure of the credit we should all be crowing and cawing with the
pride of moral excellence. So I don't assume to pride myself on the very
modest virtue of being merely a human being." (Selected Writings of Benjamin
Nathan Cardozo, pp.427-428).

Just two or three instances of Indian judiciary available in Law Reports
D deserve a reference and would suffice too. In Bharat Builder Pvt.Ltd and
Ors. v. Parijat FlatOwners Coop. Housing Society Ltd., (1999) 5 SCC 622
while disposing of an earlier SLP the Supreme Court desired the High Court
to decide a plea by the convenient means of a review petition expecting the
High Court "that the questions shall be addressed", "regardless of the technical
E limitations of the review petition". The High Court dismissed the review
application and observed inter alia - "the issue posed to be examined as
directed by the Supreme Court is not the issue which was raised in the trial
court or the appellate court and it is not permissible for us to go into such
a fresh.. issue in this review application, first time. In view of this we do not
find any merit in the contentions of the applicant and review application is,
F therefore, liable to be rejected". This Court referred to Article 144 of the
Constitution and observed that it was imperative for the High Court to have
decided the questions that it was required to be decided by the earlier order
of this Court. The order of the High Court was set aside and the review
petition was directed to be restored on the file of the High Court by this Court :.~

G once again ·stating - "the High Court shall scrupulously follow the requirementS
of the (earlier) order of this Court." In Bharat Earth Movers v. Commission
of Income Tax, Karnataka, (2000] 6 SCC 645 the Supreme Court seized of a
hearing in a matter had issued a direction to the Income-tax Appellate Tribunal
to frame a supplementary statement of case so as to enable this Court to
appreciate the facts correctly and in that light to settle the law. The Tribunal
H was remiss in compliance. On this being brought to the notice of the Court,
TIRUPA TI BALAJI DEVELOPERS PVT.LTD. v. STA TE [LAHOTI, J.] 517

this Court observed - "Article 144 of the Constitution obliges all authorities, A
civil and judicial, in the territory of India to act in aid of the Supreme Court.
Failure to comply with the directions of this Court by the Tribunal has to be
deplored. We expect the Tribunal to be more responsive and more sensitive
to the directions of this Court. We leave this aspect in this case by making
only this observation."
B
In Assistant Collector of Central Excise, Chandan Nagar, West Bengaf
v. Dunlop India Ltd. and Ors., [1985] 1 SCC 260 this Court reiterated a few
observations from an earlier case Siliguri Municipality v. Amalendu Das,
(1984) 2 SCC 436 which read as - "We mean no disrespect to the High Court
in emphasizing the necessity for self-imposed discipline in such matters in C
obeisance to such weighty institutional considerations like the need to maintain
decorum and comity. So also we mean no disrespect to the High Court in
stressing the need for self-discipline on the part of the High Court in passing
interim orders without entering into the question of amplitude and width of
the powers of the High Court to grant interim relief." Referring to what was
said in Cassell Co. Ltd v. Broome, ( 1972) 1 All England Reports 801 the Court D
said - We hope it will never be necessary for us to say so again that "in the
hierarchical system of courts" which exists in our country, "it is necessary for
each lower tier", including the High Court, "to accept loyally the decisions
of the higher tiers':. "It is inevitable in hierarchical system of courts that there
are decisions of the Supreme Appellate Tribunal which do not attract the
unanimous approval of all members of the judiciary......But the judicial system E
only works if someone is allowed to have the last word and that last word,
once spoken, is loyally accepted." The better wisdom of the court below must
yield to the higher wisdom of the court above. That is the strengtlt of the
hierarchical judicial system." Though qualifying its statement by the expression
"it is needless to add"; yet the court felt the need of adding in its judgment F
that under Article 144 all authorities, civil and judicial (High Courts included)
in the territory of India shall act in aid of the Supreme Court.

We are inclined to extract and reproduce a very instructive passage,
apposite to the context, from the judgment by a Constitution Bench headed
by Chief Justice Chandrachud in State of Punjab and Ors. v. Jagdev Singh G
Talwandi, (1984] 1 SCC 596. The excerpt is self explanatory of factual backdrop
and is as under -

"We would like to take this opportunity to point out that serious
difficulties arise on account of the practice increasingly adopted by
the High Courts, of pronouncing the final order without a reasoned H
518 SUPREME COURT REPORTS (2004] SUPP. I S.C.R.

A judgment. It is desirable that the final order which the High Court
intends to pass should not be. announced until a reasoned judgment
is ready for pronouncement. Suppose, for example, that a final order
without a reasoned judgment is announced by the High Court that a
house shall be demolished, or that the custody of a child shall be
handed over to one parent as against the other, or that a person
B accused of a serious charge is acquitted, or that a statute is
unconstitutional or, as in the instant case, that a detenu be released
from detention. If the object of passing such orders is to ensure
speedy compliance with them, that object is more often defeated by
the aggrieved party filing a special leave petition in this Court against
c the order passed by the High Court. That places this Court· in a
predicament because, without the benefit of the ~easoning of the
High Court, it is difficult for this Court to allow the bare order to be
implemented. The result inevitably is that the operation of the order,
passed by the High Court has to be stayed pending delivery of the
reasoned judgment. 1•
D
It may be thought that such orders are passed by this Court and
therefore this is no reason why the High Courts should not do the
same. We would like to point out respectfully that the orders passed
by this Court are final and no appeal lies against them. The Supreme
Court is the final court in the hierarchy of our courts. Besides, order
E without a reasoned judgment are passed by this Court very rarely,
under exceptional circumstances. Orders passed by the High Cou_rt
are subject to the appellate jurisdiction of this Court under Article
136 of the Constitution and the other provisions of the concerned
statues. We thought it necessary to make these observations in order
F that a practice which is not very desirable and which achieves no
useful purpose may not grow out of its present infancy." (emphasis
supplied)

The Supreme Court, exercising its appellate jurisdiction, is called upon
to issue direct.ions which is not only its privilege as appellate forum but often
·G a necessity for meeting the demands of justice and effective exercise of
appellate power. Yet, it cautiously abstains from issuing any 'directions' as
such and rather uses the alternative and polite expressions like - "we request
the High Court", "the High Court is expected to", "we trust and hope that
the High Court will/shall", spelled out by courtesy and the respect and
H regards which the Supreme Court has - and must have - for High Courts. The
TIRUPATI BALAJI DEVELOPERS PVT. LTD. v. STATE [LAHOTI, J.] 519
practice has developed and gained ground as tradition. Barring may be an A
instance or two, which too must have been avoidable, there has been no
occasion either for any disrespect having been shown by the Supreme Court
to the High Court or vice versa or for this Court having been called upon to
take cognizance of any instance of disrespect shown to it by any High Court.

Harry T. Edwards, Chief Judge, U.S. Court of Appeals for the D.C. B
Circuit emphasises self-restraint as helping build up the Courts constitutional
legitimacy overtime inasmuch as judicial self-restraint helps both to generate
and to preserve judicial independence. In the context of dealing of judges by
judges, he uses the term 'collegiality' and then he mentions the relationship
between collegiality and independence by saying - " ........ an aspect of judicial C
practice that has seemed increasingly important to me over the last decade:
the practice of collegiality. By collegiality I mean an attitude among judges
that says, we may disagree on some substantive issues, but we all have a
common interest and goal in getting the Jaw right. ...... We are, in a word, one
another's colleagues. An attitude of collegiality means, in practice, that we
respect one another's views, listen to one another, and, where possible, aim D
to identify areas of agreement........ Collegiality does mean, however, that,
even when I disagree with another judge, I recognize that we are part of a
common endeavor, and that each of us is, almost always, acting in good faith
according to his or her own view of what the law requires ........ Because I see
myself as engaged in a common endeavor with my judicial colleagues, it E
follows that I have the interests of the judiciary as a whole at heart........ .
When there is little or no judicial collegiality, there is less incentive for judges
to exercise self-restraint ........ collegiality is important not only for working
together effectively, but also at a deeper structural level. An attitude of
judicial collegiality helps reinforce judges' incentives to behave in a principled
and responsible fashion. I think that any discussion of judicial independence, F
either at the level of institutions or individuals, should take this practice of
collegiality into account." (See - Judicial Norms: A Judge's Perspectives -
Washington University School of Law).

We would end our this discussion by quoting what Oliver Wendell
Holmes Jr. nearing his 60th birthday, and unaware that he was shortly to be G
elevated from the office of Chief Justice of Massachusetts to the Supreme
Court of the United States said - "I ask myself, what is there to show for this
half lifetime that has passed? I look into my book in which I keep a docket
of the decisions of the full court which falls to me to write, and find about
a thousand cases. A thousand cases, many of them upon trifling or transitory H
520 SUPREME COURT REPORTS [2004] SUPP. 1 S.C.R.

A matters, to represent nearly a half a lifetime. A thousand cases when one
would have liked to study to the bottom and·say his say on every question
which the law has ·presented ... I often imagine Shakespeare or Napoleon
summing himselfup and thinking: 'Yes, I have written 5,000 lines of solid gold
and a good deal of padding, who would have covered the Milky Way with
B words that outshone the stars'. We are lucky enough if we can give a sample
of our best and if in our hearts we can feel that it has been nobly done."
[Extracted and cited by J.H. Wootten, "Creativity in the Law"·{l972) 4 Aust
J Forensic Sciences, at 107]

Cooperation can be achieved and tension avoided between two judicial
C institutions if only judicial collegiality is learnt, nobility prevails and Holmes'
humility rules.

The constitutional jurist H.M. Seervai in his work 'Constitutional Law
oflndia, Fourth Edition, Silver Jubilee Edition, Vol.3, in para 25.481) refers to
the "values" of our Constitution and says -"the word 'values' in plural means
D one's principles or standard, one's judgment and what is available as important
in life". However, the interpretation of the provisions of our Constitution
cannot fluctuate with the different values in which different Judges believe.
Seervai quotes B.N. Rau, the eminent constitutional advisor and states - "the
only values which can be said to underlie our Constitution is best expressed
in the Preamble to the draft Constitution presented to the Constituent Assembly
E by Sir B.N. Rau, its eminent Constitutional Adviser. It ran: "We, the people
of India, seeking to promote the common good, do hereby, through our
chosen representatives, enact, adopt and give to ourselves this Constitution".
In our opinion, it is the concept of the common good which ought to guide
us - as institutions and as individuals - in testing times.
F
While quoting the several authorities and references as hereinabove we
should not be misunderstood as calling 'the Supreme Court a superior Court
and the High Court an inferior court'; all that we wish to say is that
jurisdictionally, and in the hierarchical system, so far as the exercise of
appellate jurisdiction is concerned, undoubtedly. the Supreme Court is a
G superior forum and the High Court an inferior forum in the sense that the latter
is subjected to jurisdiction, called 'appellate jurisdiction', of the former.

The very existence of appellate jurisdiction obliges the lower jurisdiction
to render all of its assistance to the higher jurisdiction to enable the exercise
of appellate jurisdiction fully and effectively. The lower forum may be called
H upon to certify its record of case and proceedings to the superior forum. The
TIRUPATI BALAJIDEVELOPERS PVT. LTD. v. STATE [LAHOTI ,J.] 521
superior forum may stand in need of some information which being in the A
possession or knowledge of the subordinate forum, shall have to be made
available only by it. The superior forum may issue a stay order or restraint
order or may suspend, expedite or regulate the proceedings in the subordinate
forum. During or at the end of exercise of the appellate jurisdiction any
direction made by the higher forum shall have to be complied with by the B
lower forum, otherwise the hierarchy becomes meaningless.

Though, the jurisdiction conferred on the Supreme Court under Article
136 is very wide and no technicality can ·prevent or hinder the effective
exercise of such jurisdiction yet as a rule of prudence and self-imposed
discipline the superior forum refuses to exercise its jurisdiction in the first C
instance ifthe grievance raised is capable of being taken care of by any lower
forum competent to do so.

Having recalled and recapitulated a few of the golden principles,
fundamental and basic, we now revert back to the facts of the present case.
D
After all, what was done by this Court? On 28.10.2002, this Court
exercised self-control and refused to entertain the SLP forming an opinion as
to why it should step in and why it should not leave it open to the High Court
to freely exercise its constitutional jurisdiction and that too in public interest
in the present case. However, the grievance raised by the then petitioners
needed to be heard early; to form such opinion and issue a consequential : E
direction undoubtedly were within the competence of this Court under Article
136 of the Constitution. Later on, the order dated 3.11.2003 came to be passed
on the petition supported by an affidavit, stating the facts and mentioning
the dates, giving rise to the occasion for filing the same, which was, if not
a complaint, at least a grievance that the High Court had failed to comply with F
the order dated 28.10.2002 passed by this Court in exercise of its jurisdiction
conferred by Article 136 of the Constitution. The Court felt that the order
should have been complied with. The Court proceeded with the assumption
that in ordinary course it would not be persuaded to think, much less believe,
that the High Court was not complying with the order of this Court, if only
the order has been brought to its notice. So, to ascertain the facts this Court G
called for a response. The Registrar General of this Court addressed a
communication to the Registrar General of the High Court seeking information.
i The communication should have been dealt with on administrative side and
responded to by the Registrar General of the High Court, just apprising this
Court of the correct factual position. If there was no error, no default and H
522 SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A nothing like non-compliance at the end of the High Court, an appraisal in that
regard contained in a communication with briefnecessary facts by the Registrar
General of the High Court to the Registrar General of this Court, which the
latter would have placed for the consideration of this Court on the judicial
side, wa8 enough. Such procedure is followed quite often and nobody ~as
B ever taken any exception to this practice barring the singular instance with
which we are reluctantly dealing with.

We can only regret the wrong impression created in the minds of the
Division Bench of the High Court in this case. Merely on account of an
innocuous communication by this Court addressed to the Registrar General
C of High Court, the High Court was not reduced to the status of a litigant nor
the High Court came to be arrayed as a party nor the High Court as an
institution and as a court of record was called upon to give an explanation
or to respond. How does the need arise for the High Court to engage a lawyer
of its own ? All these impressions, if created, are an outcome of
misunderstanding and misapprehension or 'exuberance' as Benjamin Cardozo
D calls it. It is obvious that any person approaching this Court by indulging into
misadventure of suggestio falsi or suppressio veri, would suffer the
consequences but that would be only after the facts have been ascertained.
Ordinarily, what was there to disbelieve the averments made in the petition,
filed before this court detailing the facts and supported by an affidavit? Yet,
E the Court did not act in haste on the petition and did not pass any order ex-
parte. Acting with care, caution and circumspection - and obviously with
respect to the High Court - it held its hands back and tried to ascertain the
facts. There was absolutely no occasion for the Hjgh Court to feel annoyed
and disturbed much less to feel perturbed and react in the manner in which
it has unfortunately done. The High Court should have known· that both the
F orders, the order dated 28.10.2002 as also the order dated 3.11.2003 were
passed by the Benches headed by Hon. the Chief Justice of India, the pater
familias of Indian Judiciary. In our considered opinion, the order dated
3.12.2003, passed by the Division Bench of the High Court, is unfortunate.
We too are not feeling too happy to pass the present order. Our embarrassment
G stands multiplied when we notice that the Division Bench of the High Court
which passed the order dated 3. 12.2003 too was headed by the Chief Justice
of the High Court. All this was avoidable and should have been avoided far
from making mountain out of a mole hill.

Be that as it may, we have to maintain the dignity of this august
H institution as the Apex Court of the country and undo a mistaken assumption
TIRUPATI BALAJI DEVELOPERS PVT. LTD. v. STATE [LAHOTI, J.] 523
of the High Court, that any order of this Court was intended to undermine A
the High Court's status as a constitutional court or Court of Record. Such an
order of the High Court, which has done no good either to this Court or to
the High Court itself, having been brought to our notice, we are constitutionally
obliged not to blink our eyes but to act and so we do. We direct all those
passages which have been extracted and reproduced in the earlier part of the B
judgment, from the order dated 3.12.20~3 passed by the Division Bench of the
High Court, to be expunged and scored out as derogatory of this Court,
disparaging, totally uncalled for and making observation$ on the proceedings
'of this Court which the High Court should not have made. Such remarks
should not continue to be retained on the record of the High Court as a Court
of record. The order shall be carried out in letter and spirit and the compliance C
reported to the Registrar General of this Court by the Registrar General of the
High Court. We depart with the good hope that there would be no other
occasion for this Court to make such an order.

v.s.s. Petition disposed of.

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