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REPORTABLE

IN THE SUPREME COURT OF INDIA ORIGINAL CIVIL JURISDICTION

I.A. NO.8 OF 2011 IN

WRIT PETITION (CIVIL) NO.176 OF 2009

Ram Jethmalani & Ors. … Petitioners Vs.

Union of India & Ors. … Respondents

O R D E R

1. Writ Petition (Civil) No.176 of 2009 was filed by Shri  

Ram Jethmalani and five others against the Union of India,  

the Reserve Bank of India, the Securities Exchange Board of  

India,  the  Director,  Directorate  of  Enforcement  and  the  

Chairman,  Central  Board  of  Direct  Taxes,  Department  of

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Revenue, Ministry of Finance, Government of India, against  

the  purported  inaction  of  the  Government  to  arrange  for  

recovery of large sums of money deposited by Indian citizens  

in foreign banks and, in particular, in Swiss Banks.  In  

that  context  the  Petitioners,  inter  alia, prayed  for  the  

following reliefs :-

“(a)that  this  Hon’ble  Court  may  be  pleased  to  issue  notice to all the Respondents calling upon them to  disclose  all  the  facts  which  have  come  to  their  knowledge so far pertaining to the aforementioned  issues and the steps taken by them in this regard;  

(b) to make orders from time to time to ensure that the  outcome of the investigations are not suppressed or  even unduly delayed;  

(c) the suitable directions be issued to the Respondent  No.1  to  apply  to  the  Foreign  Banks,  more  particularly the UBS Bank for freezing the amounts  in  the said  foreign banks,  particularly, the  UBS  Bank which as stated above is holding, inter alia,  the Khan and Tapurias’ assets.”  

2. On 4th July, 2011, on I.A. No.1 of 2009 in the Writ  

Petition several directions were given.  In fact, the said  

order was divided into three parts.  The first part of the  

order  dealt  with  the  alleged  failure  of  the  Central

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Government to recover the large sums of money kept in such  

foreign banks and in tax havens having strong secrecy laws  

with regard to deposits made by individuals.  The second  

part dealt with the unlawful activities allegedly funded out  

of such deposits and accounts which were a threat to the  

security and integrity of India.  The amounts deposited in  

such tax havens in respect of one Shri Hassan Ali Khan and  

Shri Kashinath Tapuria and his wife Chandrika Tapuria were  

alleged to be in billions of dollars in UBS Bank in Zurich  

alone.  Income Tax demands were made to Shri Hassan Ali Khan  

for Rs.40,000 crores and a similar demand was served on the  

Tapurias amounting to Rs.20,580 crores.  On being convinced  

that, in the absence of any known source of income, the  

large sums of money involved in the various transactions by  

Hassan Ali Khan and the Tapurias were the proceeds of crime,  

which required a thorough investigation, this Court felt the  

necessity of appointing a Special Investigation Team to act  

on behalf and at the behest of the directions of this Court.  

It was noted by this Court that the issues involved were  

complex  and  would  require  expertise  and  knowledge  of

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different  departments  and  the  coordination  of  efforts  

between  various  agencies  and  departments.   It  was  also  

recorded that on behalf of the Union of India, it had been  

submitted  that  a  High  Level  Committee  had  recently  been  

formed under the initiative of the Department of Revenue in  

the Ministry of Finance, composed of :

(i) Secretary, Department of Revenue, as the Chairman; (ii) Deputy Governor, Reserve Bank of India;  

(iii) Director (IB);

(iv) Director, Enforcement;

(v) Director, CBI;

(vi) Chairman, CBDT;

(vii) DG, Narcotics Control Bureau;

(viii) DG, Revenue Intelligence;

(ix) Director, Financial Intelligence Unit; and  

(x) JS(FT & TR-I), CBDT.

with  powers  to  co-pt,  as  necessary,  representatives  not  

below  the  rank  of  Joint  Secretary  such  as   the  Home  

Secretary,  Foreign  Secretary,  Defence  Secretary  and  the

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Secretary,  Cabinet  Secretariat.   It  was  further  recorded  

that  the  Union  of  India  had  claimed  that  such  a  multi-

disciplinary group and committee would enable the conducting  

of  an  efficient  and  a  systematic  investigation  into  the  

matters concerning allegations against Hassan Ali Khan and  

the  Tapurias  and  would  also  be  able  to  take  appropriate  

steps to bring back the monies deposited in foreign banks.  

In the light of such submission made on behalf of Union of  

India and citing the judgments of this Court in (1) Vineet  

Narain Vs.  Union of India [(1996) 2 SCC 199],(2)  NHRC Vs.  

State of Gujarat [(2004) 8 SCC 610], (3)  Sanjiv Kumar Vs.  

State of Haryana [(2005) 5 SCC 517] and (4) Centre for PIL  

Vs. Union of India [(2011) 1 SCC 560], this Court completed  

the second part of the order by directing as follows :-   

    49. In light of the above we herewith order:

(i) That the High Level Committee constituted by  the  Union  of  India,  comprising  of  (i)  Secretary, Department of Revenue; (ii) Deputy  Governor,  Reserve  Bank  of  India;  (iii)  Director  (IB);  (iv)  Director,  Enforcement;  (v)  Director,  CBI;  (vi)  Chairman,  CBDT;  (vii)DG, Narcotics Control Bureau; (vii) DG,  Revenue  Intelligence;  (ix)  Director,

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Financial Intelligence Unit; and (x) JS (FT &  TR-I),  CBDT  be  forthwith  appointed  with  immediate effect as a special Investigation  Team;

(ii) That  the  Special  Investigation  Team,  so  constituted, also include  Director, Research  and Analysis Wing;

(iii) That the above Special Investigation Team, so  constituted,  be  headed  by  and  include  the  following  former  eminent  judges  of  this  Court:  (a)  Hon'ble  Mr.  Justice  B.P.  Jeevan  Reddy  as  Chairman;  and  (b)  Hon'ble  Mr.  Justice M.B. Shah as Vice-Chairman; and that  the Special Investigation Team function under  their guidance and direction;

(iv) That  the  Special  Investigation  Team,  so  constituted,  shall  be  charged  with  the  responsibilities  and  duties    of  investigation, initiation of proceedings, and  prosecution,  whether  in  the  context  of  appropriate  criminal or civil  proceedings  of: (a) all issues relating to the matters  concerning  and  arising  from  unaccounted  monies of Hassan Ali Khan and the Tapurias;  (b)  all  other  investigations  already  commenced and are pending, or awaiting to be  initiated,  with  respect  to  any  other  known  instances   of the stashing  of unaccounted  monies in foreign bank accounts by Indians or  other entities operating   in India; and (c)  all  other    matters  with  respect  to  unaccounted monies being stashed in foreign  banks by Indians or other entities operating  in India that may   arise   in the course of  such  investigations  and  proceedings.  It  is  clarified  here  that  within  the  ambit  of

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responsibilities described  above, also lie  the  responsibilities  to    ensure  that  the  matters  are  also  investigated,  proceedings  initiated  and  prosecutions  conducted  with  regard to criminality and/or unlawfulness of  activities that may   have been the source  for  such  monies,  as  well  as  the  criminal  and/or unlawful means that are   used to take  such unaccounted   monies  out  of and/or  bring  such monies back into the country, and  use  of  such  monies  in  India  or    abroad.  The Special Investigation Team shall also be  charged with the responsibility of preparing  a  comprehensive  action  plan,  including  the  creation  of  necessary  institutional  structures that can enable and strengthen the  country's  battle  against  generation  of  unaccounted monies, and their stashing away  in  foreign  banks  or  in  various  forms  domestically.

(v) That  the  Special  Investigation  Team  so  constituted report and be responsible to this  Court, and that it shall be charged with the  duty to keep this Court informed of all major  developments by the filing of periodic status  reports, and following of any special orders  that this Court may issue from time to time;

(vi) That  all  organs,  agencies,  departments  and  agents of the State, whether at the level of  the  Union    of  India,  or  the  State  Government,        including but not limited  to all statutorily formed individual bodies,  and other constitutional bodies, extend all  the cooperation   necessary for the Special  Investigation  Team  so  constituted  and  functioning;

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(vii) That  the  Union  of  India,  and  where  needed  even the State Governments, are directed to  facilitate the conduct of the investigations,  in  their  fullest  measure,  by  the  Special  Investigation  Team  so  constituted  and  functioning, by extending all the necessary  financial,  material,  legal,  diplomatic  and  intelligence  resources,  whether  such  investigations  or  portions  of  such  investigations  occur  inside  the  country  or  abroad.

(viii) That the Special Investigation Team also be  empowered to further investigate even where  charge-sheets have been previously filed; and  that    the  Special  Investigation  Team  may  register  further  cases,  and  conduct  appropriate  investigations  and  initiate  proceedings, for the purpose of bringing back  unaccounted   monies unlawfully kept in bank  accounts abroad.

3. The third part of the order deals with the disclosure of  

various  documents  referred  to  by  the  Union  of  India  in  

relation  to  the  names  and  particulars  of  various  bank  

accounts  of  Indian  citizens  in  the  Principality  of  

Liechtenstein, a small landlocked sovereign nation-state in  

Europe, which is generally acknowledged as a tax haven.   

4. The third part of the order is not of relevance at this  

stage, since an application, being IA No.8 of 2011, has been

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filed by the Union of India in the Writ Petition, purporting  

to be an application under Article 142 of the Constitution  

read with Order 47 Rule 6 of the Supreme Court Rules, 1966,  

seeking modification of the aforesaid order dated 4th July,  

2011.    

5. Before the Application could be moved by the learned  

Attorney General, Mr. Anil B. Divan, learned Senior Advocate  

appearing  for  the  Writ  Petitioners,  took  a  preliminary  

objection  that  the  interlocutory  application  was  not  

maintainable on several counts.  It was firstly urged that  

in effect, in the guise of an application for modification,  

the Respondents/Applicants were wanting either a re-hearing  

and/or  review  of  the  order  passed  on  4th July,  2011,  

disposing of I.A.No.1 of 2009.  Mr. Divan pointed out that  

it was the Government itself which had set up a High Level  

Committee  consisting  of  senior  officers  of  different  

departments  to  take  steps  for  retrieving  the  black  money  

which had been deposited in banks in tax havens all over the  

world and, in particular, in Swiss Banks  and it did not,

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therefore, lie in the mouth of the Government to take a  

different stand when the same Committee had been converted  

into a Special Investigation Team with two former Judges of  

the Supreme Court to monitor the progress of the recovery  

proceedings.

6. Mr. Divan also contended that the formation of a Special  

Investigation Team to monitor the investigation is not a new  

concept and has been resorted to on different occasions in  

order that justice is done between the parties and the rule  

of law is not obstructed either by the investigating agency  

or otherwise.  Mr. Divan urged that once the matter had been  

decided on merits and a direction had been given for the  

formation of a Special Investigation Team composed of the  

very officers who had been appointed as members of the High  

Level Committee for the very same purpose, the Government is  

not  justified  in  objecting  to  the  investigation  being  

monitored by such Committee headed by two retired Judges of  

the  Supreme  Court  with  impeccable  credentials.  Mr.  Divan  

submitted  that  the  contention  of  the  Respondents  in  I.A.

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No.8 of 2011 was as if by appointing a Special Investigation  

Team, the Supreme Court had taken over the executive powers  

of  the  Union.    It  was  submitted  that  although  a  case  

against the accused was pending since 2007, no attempt had  

been  made  to  interrogate  the  accused  in  regard  to  the  

allegations made against them.

7. Mr.  Divan  submitted  that  possibly  other  fora  were  

available to the Respondents, but the present I.A. would not  

provide any remedy to the Respondents.  Mr. Divan urged that  

it  was  on  account  of  the  complete  inertia  of  the  

investigating  authority  that  in  spite  of  huge  sums  of  

unaccounted money deposited in tax havens abroad, little or  

no action was taken to proceed with the investigation or  

even  to  interrogate  the  persons  accused  of  having  been  

involved  in  money  laundering  and  acting  against  the  

interests  of  the  country  and  its  citizens.   Mr.  Divan  

submitted that the remedy available to the Respondents lay  

in a review petition under the provisions of Order 47 of the

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Supreme  Court  Rules,  1966,  and  not  by  an  interlocutory  

application and that too in a disposed of matter.   

8. Mr.  Shekhar  Naphade,  learned  Senior  Advocate  who  

appeared for the Petitioner in Writ Petition (Civil) No.136  

of 2011, supported the submissions made by Mr. Anil Divan  

with  regard  to  the  maintainability  of  the  Interlocutory  

Application No.8 of 2011 filed by the Union of India.  It  

was contended that neither the provisions of Article 142 of  

the Constitution nor Order 47 Rule 6 of the Supreme Court  

Rules were attracted in the facts of this case, inasmuch as,  

the said provisions conferred power and not jurisdiction on  

this Court in respect of a matter which was pending before  

it.  Mr. Naphade submitted that Article 142 very clearly  

vested  the  Supreme  Court  with  jurisdiction  to  pass  such  

decree or make such order as is necessary for doing complete  

justice  in  any  case  or  matter  pending  before  it.   Mr.  

Naphade also contended that, as had been held by this Court,  

in Saurav Chaudhary Vs. Union of India [(2004) 5 SCC 618],  

this Court could exercise its jurisdiction under Article 142

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of the Constitution at the time of rendition of the judgment  

and  not  thereafter.   It  was  further  observed  that  once  

judgment  had  been  delivered  by  the  Court,  it  could  not  

recall the same and could only exercise its power of review  

in case it intended to take a different view from the one  

rendered in the main judgment.  Mr. Naphade also urged that  

even the provisions of Order 47 Rule 6 of the Supreme Court  

Rules were of no assistance to the Union of India.  It was  

submitted that the Rules framed under Article 145(1) of the  

Constitution only empowered the Supreme Court to frame Rules  

to regulate its practice and procedure and does not take in  

its  sweep  the  power  to  create  a  new  jurisdiction  to  

entertain a cause or matter.

9. Reference was also made to the decision of this Court in  

Raja Soap Factory & Ors. Vs. S.P. Shantharaj & Ors.[(1965) 2  

SCR 800], wherein it was observed that by jurisdiction what  

is meant is the extent of power which is conferred upon a  

Court by its Constitution to try a matter or a cause.  Such

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power  is  not  capable  of  being  enlarged  because  an  

extraordinary situation requires the Court to exercise it.   

10. Mr.  Naphade  submitted  that  by  virtue  of  this  

application,  the  Union  of  India  was  seeking  to  review  a  

final order passed by this Court, treating the same to be an  

application for recalling the order.  Mr. Naphade repeated  

and reiterated his submissions that the application filed on  

behalf of the Union of India and its authorities was not  

maintainable and could only be dismissed.

11. Replying to the submissions made by Mr. Divan and Mr.  

Naphade,  the  learned  Attorney  General  submitted  that  in  

earlier  cases  also  this  question  had  been  raised  and  

considered by this Court.  Referring to the decision of a  

Bench of Seven Judges in the case of A.R. Antulay Vs. R.S.  

Nayak  &  Anr. [(1988)  2  SCC  602],  the  learned  Attorney  

General  submitted  that  by  a  majority  judgment  this  Court  

held  that  directions,  if  given  in  violation  of  the  

principles of natural justice, if subsequently questioned in  

another appeal instead of by way of a Review Petition under

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Article 137, the same could be set aside by another Bench of  

the Court  ex debito justitiae  in exercise of its inherent  

powers.  The majority amongst the Judges held that the want  

of  jurisdiction  could  be  addressed  solely  by  a  superior  

Court  and,  in  practice,  no  decision  could  be  reviewed  

collaterally by any inferior Court, but the superior Court  

could always correct its error either by way of a petition  

or ex debito justitiae.  In fact, it was also observed that  

in certain situations, the Supreme Court could always invoke  

its power of review in exercise of its inherent jurisdiction  

in any proceeding pending before it, without insisting on  

the  formalities  of  a  review  application.  The  learned  

Attorney General submitted that by appointing two retired  

Judges of the Supreme Court, Justice B.P. Jeevan Reddy as  

the Chairman and Justice M.B. Shah as the Vice-Chairman, and  

directing that the Special Investigation Team would function  

under  their  guidance  and  directions,  would  amount  to  

interference with the executive authority of the different  

officials  representing  different  sections  of  the  

administration which would lead to a chaotic situation.  The

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direction given to include the Director, Research & Analysis  

Wing, was also improper, since the said authority functioned  

under strict rules of secrecy, which could be jeopardized if  

its  Director  were  to  be  included  in  the  Special  

Investigation Team.

12. The  learned  Attorney  General  submitted  that,  in  the  

event there was any doubt as to whether the powers of the  

Supreme Court under Article 142 of the Constitution could be  

invoked for doing complete justice in a matter which was not  

pending before it, the present application could always be  

treated  as  a  Review  Petition  under  Article  137  of  the  

Constitution read with Order 47 Rule 6 of the Supreme Court  

Rules, 1966.  The learned Attorney General submitted that in  

view of the magnitude of the transactions involved and that  

too without any accounting of the monies used, this Court  

should  cut  across  technicalities  and  consider  the  matter  

pragmatically. The learned Attorney General submitted that  

the  present  application  may,  therefore,  be  treated  as  a  

Review Petition under Article 137 of the Constitution read

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with Order 47 Rule 6 of the Supreme Court Rules, 1966 and be  

proceeded  with  accordingly,  notwithstanding  the  objection  

taken  on  behalf  of  the  Petitioners  in  regard  to  the  

different procedure to be adopted in respect of a review  

application.  It was also submitted that as indicated in  

A.R.  Antulay’s  case  (supra),  the  Supreme  Court  can  grant  

relief in exercise of its inherent powers as the guardian of  

the Constitution.   

13. Reference was also made by the learned Attorney General  

to the decision of this Court in S. Nagaraj & Ors. Vs. State  

of Karnataka & Anr. [(1993) Supp. (4) SCC 595], which was  

heard along with several other cases by a Bench of three  

Judges.  In the said cases an order had been passed on oral  

mentioning  which  ultimately  resulted  in  several  contempt  

petitions being filed.  Two of the Hon’ble Judges, after  

considering the anomalous circumstances which had resulted  

from the passing of the order on oral mentioning, held that  

justice  is  a  virtue  which  transcends  all  barriers  and  

neither the rules of procedure nor technicalities of law can

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stand in its way.  It was further observed that the order of  

the Court should not be prejudicial to anyone and if the  

Court found that the order was passed under a mistake and it  

would  not  have  exercised  the  jurisdiction,  but  for  the  

erroneous assumption which in fact did not exist, and its  

perpetration would result in miscarriage of justice, then it  

would not on any principle be precluded from rectifying the  

order.  Mistake is accepted as a valid reason to recall an  

order.   Their  Lordships  emphasized  the  fact  that  

rectification  of  an  order  stems  from  the  fundamental  

principles that justice is above all.  It is exercised to  

remove the error and not for disturbing finality.  In the  

judgment it was also observed that the Supreme Court has the  

inherent power to make such orders as may be necessary for  

the interest of justice or to prevent the abuse of process  

of  Court.  The  Court  is,  therefore,  not  precluded  from  

recalling or reviewing its own order, if it is satisfied  

that it is necessary to do so for the sake of justice.  It  

was pointed out that even the learned third Judge held that  

while  the  Government  was  mainly  responsible  for  the

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unfortunate  state  of  affairs  that  should  not  desist  the  

Supreme  Court  from  revising  or  reviewing  the  said  orders  

which  had  serious  consequences.   The  learned  third  Judge  

also observed that it is the duty of the Court to rectify,  

revise and recall its orders as and when it is brought to  

its notice that certain of its orders were passed on a wrong  

or mistaken assumption of facts and that implementation of  

those orders will have serious consequences.   

14. On a careful consideration of the submissions made on  

behalf  of  the  respective  parties  in  regard  to  the  

maintainability of I.A. No.8 of 2011 filed on behalf of the  

Union of India, wherein, inter alia, a prayer has been made  

to modify the order dated 4th July, 2011 and to delete the  

directions  relating  to  the  Special  Investigation  Team  in  

paragraphs 49 and 50 of the said order, it appears that the  

I.A. is maintainable.  In view of the preliminary objection  

relating  to  the  maintainability  of  the  interlocutory  

application filed on behalf of the Union of India, the said

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issue regarding the maintainability of I.A. No.8 of 2011 has  

been taken up first.   

15. From the arguments advanced on behalf of the respective  

parties, it appears at first blush that Mr. Anil B. Divan is  

technically correct in submitting that since there was no  

matter pending before this Court, the provisions of Article  

142 of the Constitution would not be attracted and that even  

the inherent powers of this Court preserved under Order 47  

Rule 6 of the Rules framed by the Supreme Court in exercise  

of its powers under Article 145 of the Constitution would  

not be applicable.  However, this Court has preserved its  

inherent powers to make such orders as may be necessary for  

the ends of justice in Order 47 Rule 6 of the Supreme Court  

Rules, 1966, framed under Article 145 of the Constitution.  

As has been held in  A.R. Antulay’s case (supra) and in  S.  

Nagaraj’s case (supra), such a power was not only inherent  

in  the  Supreme  Court,  but  the  Supreme  Court  was  also  

entitled  to  and  under  an  obligation  to  do  justice  to  

exercise such powers as the guardian of the Constitution.

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Justice  transcends  all  barriers  and  neither  rules  of  

procedure  nor  technicalities  can  stand  in  its  way,  

particularly  if  its  implementation  would  result  in  

injustice.  In addition to the decision rendered by this  

Court in  A.R. Antulay’s case (supra) and in  S. Nagaraj’s  

case (supra), reference may also be made to another equally  

important  pronouncement  of  this  Court  in  Vineet  Narain’s  

case (supra), wherein the concept of continuing mandamus was  

introduced  in  order  to  maintain  the  credibility  of  the  

investigation being conducted.   

16. Reference may also be made to the decision of this Court  

in  Manganese Ore (India) Ltd. Vs.  Chandi Lal Saha [(1991)  

Supp. 2 SCC 465], wherein this Court extended the benefit of  

its judgment to persons who were not even in appeal before  

it.

17. Even if the present application was to be dismissed as  

being not maintainable under Article 142 of the Constitution  

read with Order 47 Rule 6 of the Supreme Court Rules, 1966,  

it  would  not  preclude  the  Applicants  from  filing  an

22

application  for  review  under  Article  137  of  the  

Constitution.   As  the  very  working  of  the  Special  

Investigation Team appointed under the order of 4th July,  

2011, is in question, it is necessary to cut across the  

technical  tapes  sought  to  be  invoked  on  behalf  of  the  

Petitioners and hold that in view of the inherent powers  

vested in the Supreme Court of India, preserved in Order 47  

Rule 6 of the Supreme Court Rules, 1966, and having regard  

to the fact that the Supreme Court is the guardian of the  

Constitution, I.A. No.8 of 2011, even in its present form is  

maintainable  in  the  facts  and  circumstances  of  the  case,  

which include threats to the security of the country.   

18. The objections raised by Mr. Anil B. Divan and supported  

by  Mr.  Shekhar  Naphade,  regarding  the  maintainability  of  

I.A. No.8 of 2011, are, therefore, rejected and the said  

application may therefore be proceeded with for hearing.

……………………………………………………J.               (ALTAMAS KABIR)

New Delhi, Dated: 23.09.2011.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

I.A. NO.8 OF 2011

IN

WRIT PETITION (CIVIL) NO.176 OF 2009

RAM JETHMALANI & ORS.        ….PETITIONERS

VERSUS

UNION OF INDIA & ORS.              .…RESPONDENTS

O R D E R  

1. I have had the opportunity, and the benefit of reading, in draft, the  

learned opinion of Hon’ble Mr. Justice Altamas Kabir.  However, with  

all humility and with due respect, I would not be able to concur with the  

23

view taken by my Learned Brother.   My Learned Brother has rejected  

the preliminary objections raised by Mr. Anil Divan and Mr. Shekhar  

Naphade, appearing for the writ petitioners and directed the application  

to  proceed  for  hearing.   In  my  opinion,  the  application  is  not  

maintainable for a number of reasons.   

2. The application clearly states that the order passed by this Court in  

I.A. No. 1 on 4th July, 2011 impinges upon the doctrine of separation of  

powers.  The application thereafter sets out the facts leading to the filing  

of the writ petition invoking Article 32 of the Constitution of India.  The  

application sets out the prayers made in the writ petition.  Thereafter, it is  

stated that the writ petition, as originally filed, did not contain any prayer  

for appointment of a Special Investigation Team.  The application also  

points out that in the counter affidavit filed on behalf of the Union of  

India, it had been clearly stated that the Central Government had been  

alive to the need to be able  to retrieve  information about  the alleged  

money lying deposited  in  the  foreign accounts  and highlighting steps  

24

taken by it in his behalf.  It further points out that it was on account of  

such  an  initiative,  tax  haven  countries,  including  countries  like  

Switzerland,  made  solemn  attempts  to  enter  into  effective  tax  

information  exchange  agreements  with  various  countries.   The  

application  proceeds  to  delineate  the  steps  taken  and  the  strategy  

formulated to eradicate the menace of “Black Money”.  It states that the  

Government had joined the global crusade against Black Money.  It had  

decided to create an appropriate legislative framework by incorporating  

various  tax  evasion  measures  in  existing  Acts.   Thereafter,  the  

application  gives  the  details  of  the  proposed  new  legislation  for  

unearthing Black Money.  After enumerating all the efforts made by the  

Government at national and international level, it is stated that above all  

the Government has constituted a Committee on 27th May, 2011 under  

the Chairman, C.B.D.T. to examine ways to strengthen laws to stop the  

generation of Black Money in the country, its legal transfer abroad and  

its recovery.  The Committee also examined various other issues which  

are enumerated in the application.  The application further proceeds to  

25

tabulate  the  efforts  to  create  further  legislative  and  administrative  

framework to obtain information about illicit money of Indian citizens  

already parked outside the country.  Thereafter, the application sets out  

the efforts already made and the results thereof.  On the basis of that, it is  

stated that the Government has achieved substantial success not only in  

getting information on illicit money parked outside the country but also  

in stopping the transfer of illicit money outside the country.  Thereafter,  

the details are given of the illicit money detected.   

3. It is stated that in the order dated 4th July, 2011, these efforts have  

neither been adverted to nor evaluated before rendering the finding in  

Paragraph 46 of the judgment.   

4. The  application  thereafter  sets  out  various  efforts  made  in  the  

matter  of  investigation of the case of Hasan Ali  Khan and Kashinath  

Tapuriah.  The application thereafter reproduces the directions sought in  

I.A. No.1 of 2009, which was filed on 8th September, 2009.  Thereafter, it  

is  submitted  that  even  in  this  application,  no  prayer  was  made  for  

26

appointment  of  a  Special  Investigation  Team  [SIT].   It  is  further  

submitted that such a prayer ought not to have been granted on the basis  

of written submissions of the learned counsel for the petitioners in the  

absence of requisite pleadings in the writ petition or in the absence of a  

formal prayer.  The application further proceeds to state that it is filed  

invoking the inherent power of this Court under Article 142(1) of the  

Constitution of India for doing complete justice in any case or matter  

pending before it.   

5. In the grounds of the application, it is stated that this Court while  

exercising its jurisdiction would not be pleased to attain to itself, the task  

entrusted to the executive.  It is emphatically submitted in the application  

that the order is without jurisdiction since the constitution of the High  

Level Committee is within the realm of a decision on policy matters. It is  

also submitted that formation of a SIT headed by two former Judges of  

this Court not only impinges on the policy decision of the Government  

but  also  impinges  upon  the  doctrine  of  separation  of  powers.   This,  

27

according to the application, would be beyond the jurisdiction conferred  

on this Court under    Article 32 of the Constitution of India, which can  

be exercised for the enforcement of the rights conferred by Part III and  

for no other purpose.  It is further submitted that the judgment proceeds  

on  admissions,  concessions,  submissions  and  acknowledgments  

attributed to the counsel appearing for the Union of India.  It is pointed  

out that such concessions and admissions do not appear to have been  

made.   On  the  basis  of  the  facts  pleaded,  the  prayer  is  made  for  

modification  of  the  order  dated  4th July,  2011  and  deletion  of  the  

directions relating to SIT in Paragraphs 49 and 50.  Since the directions  

given  in  these  paragraphs  have  been  reproduced  verbatim  by  His  

Lordship,  Justice  Kabir,  the same are not  necessary to be reproduced  

herein again.  

6. The aforesaid facts  have been stated merely to indicate  that  the  

application  would  not  be  maintainable,  in  its  present  form,  as  in  

substance, it is more in the nature of a Memorandum of Appeal.  In my  

28

opinion,  the  application  seeks  to  reopen  the  whole  matter  on  merits  

which  would  not  be  permissible  in  an  application  for  modification.  

Therefore, in my opinion, the application deserves to be dismissed at the  

threshold.  

7. As the submissions made by the learned counsel  for the parties  

have been succinctly noticed by my Learned Brother Altamas Kabir, J.  

in His Lordship’s order, the same need not be repeated herein.

8. In  my  opinion,  an  application  for  clarification/modification  

touching the  merits  of  the  matter  is  not  maintainable.  The  Court  can  

consider the matter, if at all, only upon a review application on limited  

grounds.  In considering the application for review, the procedure laid  

down under  Order  XL of  the  Supreme  Court  Rules,  1966  read  with  

Article  137  would  have  to  be  followed.  Review  of  a  judgment  is  a  

serious matter and is, therefore, governed by constitutional and statutory  

provisions. This view of mine will find support from a number of earlier  

29

decisions of this Court. It would, at this stage, be appropriate to make a  

reference to some of the observations made.  

9. In the case of Ram Chandra Singh Vs. Savitri Devi & Ors.  1   this  

Court  considered  the  issue  as  to  whether  an  application  for  

clarification/modification  would  be  maintainable  in  the  face  of  the  

provisions contained in Article 137 and Order XL Rule 1 of Supreme  

Court Rules. Upon consideration of the entire issue, it was observed as  

follows:-  

“It  is  now  well  settled  that  an  application  for   clarification  or  modification  touching  the  merit  of  the  matter would not be maintainable. A Court can rehear   the matter upon review of its judgment but, therefore, the  procedure laid down in Order 40 Rules 3 and 5 of the   Supreme Court  Rules,  1966 as also Article  137 of  the   Constitution are required to be complied with as review  of a judgment is governed by the constitutional as well as   statutory provisions.

………………………………………………………………… ………………………………………………...  “ The prayer   of the applicant is that apart from the corrections which  are  required  to  be  made  in  the  judgment,  as  noticed   hereinbefore,  the  merit  of  the  matter  may  also  be   considered, inter alia, with reference to the pleadings of   

1  2004 (12) SCC 713

30

the parties. Such a course of action, in our opinion, is   not contemplated in law. If there exist errors apparent on   the face of the record, an application for review would  be  maintainable  but  an  application  for  clarification  and/or  modification  cannot  be  entertained  unless  it  is   shown  that  the  same  is  necessary  in  the  interest  of   justice. An application which is in effect and substance   an application for review cannot be entertained dehors   the statutory embargo contained in Order 40 Rules 3 and  5 of the Supreme Court Rules, 1966.”

10. I am of the considered opinion that the present application would  

be an abuse of the process of the Court as it  seeks to camouflage an  

application  for  Review  as  an  application  for  modification.   In  my  

opinion, such a course ought not to be encouraged. It would be relevant  

to notice the observations made by this  Court  in paragraph 16 of the  

judgment in the case of Delhi Administration Vs. Gurdip Singh Uban  

& Ors.  2  .    

“16. At the outset, we have to refer to the practice of filing   review applications in large numbers in undeserving cases   without  properly  examining  whether  the  cases  strictly   come  within  the  narrow  confines  of  Rule  XL  of  the   Supreme  Court  Rules.  In  several  cases,  it  has  become  almost everyday experience that  review applications are   filed mechanically as a matter of routine and the grounds   for  review  are  a  mere  reproduction  of  the  grounds  of   

2  2000 (7) SCC 296

31

special leave and there is no indication as to which ground   strictly  falls  within  the  narrow limits  of  Rule  XL of  the   Rules. We seriously deprecate this practice. If parties file   review petitions indiscriminately, the time of the Court is   unnecessarily  wasted,  even it  be in chambers where the   review petitions are listed. Greater care, seriousness and  restraint is needed in filing review applications.”

11. In my opinion, ten years down the line, the situation is even worst  

than what is depicted by the aforesaid observations. Now we are facing  

an  almost  daily  practice  of  having  to  consider  applications  for  

“modification and clarification”.  

12. In the aforesaid  judgment,  this  Court  also considered the nature  

and scope of the jurisdiction to review its own order/judgment. Since the  

application  herein  has  been  described  as  an  application  for  

“modification”, it would be necessary to notice the observations made by  

this Court in Paragraph 17   and 18 of the judgment.  The observations of  

this Court are as under:-

“17. We  next  come  to  applications  described  as  applications  for  “clarification”,  “modification”  or  “recall” of judgments or orders finally passed. We may  point out that under the relevant Rule XL of the Supreme  

32

Court  Rules,  1966  a  review  application  has  first  to  go  before the learned Judges in circulation and it will be for   the  Court  to  consider  whether  the  application  is  to  be   rejected without giving an oral hearing or whether notice   is to be issued.

Order XL Rule 3 states as follows: “3. Unless otherwise ordered by the Court, an application   for review shall be disposed of by circulation without any   oral  arguments,  but  the  petitioner  may  supplement  his  petition by additional written arguments. The Court may  either dismiss the petition or direct notice to the opposite   party....”

In case notice is issued, the review petition will be listed   for hearing, after notice is served. This procedure is meant   to  save  the  time of  the  Court  and to  preclude frivolous   review  petitions  being  filed  and  heard  in  open  court.   However,  with  a  view  to  avoid  this  procedure  of  “no  hearing”, we find that sometimes applications are filed for   “clarification”,  “modification”  or  “recall”  etc.  not   because  any  such  clarification,  modification  is  indeed  necessary  but  because  the  applicant  in  reality  wants  a  review and also wants a hearing, thus avoiding listing of   the  same  in  chambers  by  way  of  circulation.  Such  applications, if they are in substance review applications,   deserve  to  be  rejected  straight  away  inasmuch  as  the   attempt is obviously to bypass Order XL Rule 3 relating to   circulation  of  the  application  in  chambers  for   consideration  without  oral  hearing.  By  describing  an   application as one for “clarification” or “modification”,   — though it is really one of review — a party cannot be  permitted  to  circumvent  or  bypass  the  circulation   procedure  and  indirectly  obtain  a  hearing  in  the  open   Court. What cannot be done directly cannot be permitted   

33

to be done indirectly.  (See in this  connection a detailed  order of the then Registrar of this  Court in  Sone Lal v.   State of U.P deprecating a similar practice.)

18. We,  therefore,  agree  with  the  learned  Solicitor  General that the Court should not permit hearing of such  an  application  for  “clarification”,  “modification”  or  “recall” if the application is in substance one for review.   In that event, the Court could either reject the application   straight away with or without costs or permit withdrawal  with leave to file a review application to be listed initially   in chambers.”

13. These observations leave no manner of doubt that the Court should  

not  permit  hearing  of  such  an  application  for  “clarification”,  

“modification”  or  “recall”  if  the  application  is  in  substance  one  for  

review. It is clearly indicated that in those circumstances the Court could  

either  reject  the  application  straight  away  or  permit  withdrawal  with  

leave to file a review application to be listed initially in chambers.

14.  Examined on the touch stone of the observations made above, I am  

of the considered opinion that the application herein though described as  

an application for modification is in substance more in the nature of a  

34

Memorandum of Appeal.  At best, it could be said to be in substance an  

Application for Review. It certainly does not lie within the very narrow  

limits  within  which  this  Court  would  entertain  an  application  for  

modification.

15. In yet  another  case  of  Zahira  Habibullah Sheikh & Anr. Vs.  

State of Gujarat & Ors.  3   this Court, faced with a similar situation, had  

this to say :   

“The petition is in essence and substance seeking for a   review  under  the  guise  of  making  an  application  for   direction and modification apparently being fully aware   of  the  normal  procedure  that  such  applications  for   review are not, unless the Court directs, listed for open  hearing  in  Court,  at  the  initial  stage  at  least,  before  ordering notice to the other side and could be summarily   rejected, if found to be of no prima facie merit. The move   adopted  in  itself  is  unjustified,  and  could  not  be   countenanced also either by way of review or in the form  of the present application as well.  The nature of relief   sought,  and  the  reasons  assigned  are  such  that  even  under  the  pretext  of  filing  a  review  such  an  exercise   cannot  be  undertaken,  virtually  for  rehearing  and  alteration of the judgment because it is not to the liking   of the party, when there is no apparent error on record  whatsoever to call for even a review. The said move is   clearly  misconceived  and  nothing  but  sheer  abuse  of   process,  which of  late  is  found to  be on the  increase,   more for selfish reasons than to further or strengthen the   

3  (2004 (5) SCC 353)

35

cause  of  justice.  The  device  thus  adopted,  being   otherwise  an  impermissible  move  by  mere  change  in  nomenclature  of  the  applications  does  not  change  the   basic  nature  of  the  petition.  Wishful  thinking  virtually   based on surmises too, at any rate is no justification to   adopt such undesirable practices. If at all, it should be  for weighty and substantial reasons and not to exhibit the   might  or  weight  or  even  the  affluence  of  the  party   concerned or those who represent such parties when they   happen to be public authorities and institutions.

16. This Court approved the observations made in the case of Gurdip  

Singh Uban (supra)  and  observed  that  what  cannot  be  done  directly  

cannot be permitted to be done indirectly. The Court should not permit  

hearing  of  such  an  application  for  “clarification”,  “modification”  or  

“recall” if the application is in substance a clever move for review.  

17. These observations were reiterated in the case of  A.P. SRTC &  

Ors.  Vs. Abdul Kareem 4. This Court observed that the petition was in  

essence and substance seeking for a review under the guise of making an  

application for direction and modification apparently being fully aware  

of the normal procedure that such applications for review are not, unless  

4   2007 (2) SCC 466

36

the Court directs, listed for open hearing in Court, at the initial stage at  

least, before ordering notice to the other side and could be summarily  

rejected,  if  found  to  be  of  no  prima  facie  merit.   The  Court  further  

observed that such a move ought not to be countenanced. The move was  

clearly misconceived and nothing but sheer abuse of process, which of  

late  is  found to  be  on  the  increase,  more  for  selfish  reasons  than  to  

further or strengthen the cause of justice.

18. To be fair,  it  must be noticed that the learned Attorney General  

appearing for the Union of India had relied on a number of judgments in  

support of his submissions that the Court would have inherent powers to  

modify its own order/judgment. The primary judgment relied upon by  

the learned Attorney General is in the case of  S. Nagaraj & Ors. Vs.  

State of Karnataka & Anr.5.     I am of the considered opinion that the  

aforesaid judgment would be of no assistance to the submissions made  

by the learned Attorney General. The aforesaid judgment was rendered  

in the background of very peculiar facts. It would appear that this Court  5   1993 (Supp.4) SCC 595

37

had passed an order having far reaching consequences and pre-judicially  

affecting the rights of other groups of employees under     Articles 14  

and 16 of the Constitution of India. The order had permitted backdoor  

entry of thousands of stipendiary graduates because of the negligence of  

the  State  in  putting  correct  facts  before  the  Court.  The  Government  

seemed to have woken up after considerable damage had already been  

done and moved an application for modification/clarification of the order  

dated 30th October, 1991.  The learned Attorney General placed strong  

reliance on the observations made by this Court in Paragraph 18, 19 and  

36 of the judgment in support of the submission that the Court should not  

decline to review its orders when it is brought to the notice of the Court  

that it would be in the interest of justice to modify the same.  In order to  

appreciate  the  submission  of  learned  Attorney  General,  it  would  be  

appropriate to notice the observations made by this Court in Paragraphs  

18, 19 and 36 of the judgment, which are as under:-

“18. Justice  is  a  virtue  which  transcends  all  barriers.   Neither the rules of procedure nor technicalities of law  can stand in its way. The order of the Court should not   be prejudicial to anyone. Rule of stare decisis is adhered   

38

for  consistency  but  it  is  not  as  inflexible  in   Administrative  Law  as  in  Public  Law.  Even  the  law  bends before justice. Entire concept of writ jurisdiction   exercised by the higher courts is founded on equity and  fairness.  If  the  Court  finds  that  the  order  was  passed  under  a  mistake  and  it  would  not  have  exercised  the  jurisdiction but for the erroneous assumption which in   fact  did  not  exist  and  its  perpetration  shall  result  in   miscarriage of justice then it cannot on any principle be  precluded from rectifying the error. Mistake is accepted  as valid reason to recall an order. Difference lies in the   nature of mistake and scope of rectification, depending   on if  it  is  of  fact or law. But the root from which the   power flows is the anxiety to avoid injustice. It is either   statutory or inherent. The latter is available where the   mistake is of the Court. In Administrative Law the scope  is still wider. Technicalities apart if the Court is satisfied   of  the  injustice  then  it  is  its  constitutional  and  legal   obligation to set it right by recalling its order. Here as   explained, the Bench of which one of us (Sahai, J.) was a   member  did  commit  an  error  in  placing  all  the   stipendiary  graduates  in  the  scale  of  First  Division  Assistants due to State's failure to bring correct facts on  record. But that obviously cannot stand in the way of the  Court  correcting  its  mistake.  Such  inequitable   consequences  as  have  surfaced  now  due  to  vague  affidavit  filed  by  the  State  cannot  be  permitted  to   continue.

19. Review  literally  and  even  judicially  means  re- examination  or  re-consideration.  Basic  philosophy  inherent  in  it  is  the  universal  acceptance  of  human  fallibility. Yet in the realm of law the courts and even the  statutes  lean  strongly  in  favour  of  finality  of  decision   legally  and properly  made.  Exceptions  both statutorily   and judicially have been carved out to correct accidental   

39

mistakes or miscarriage of justice. Even when there was  no statutory provision and no rules were framed by the   highest  court  indicating  the  circumstances  in  which  it   could rectify its order the courts culled out such power to   avoid abuse of process or miscarriage of justice. In Raja  Prithwi Chand Lal Choudhury v.  Sukhraj Rai the Court   observed  that  even  though  no  rules  had  been  framed   permitting the highest Court to review its order yet it was   available on the limited and narrow ground developed  by the Privy Council and the House of Lords. The Court   approved the principle laid down by the Privy Council in  Rajunder Narain Rae v. Bijai Govind Singh that an order   made by the Court was final and could not be altered:

“...  nevertheless,  if  by  misprision  in   embodying  the  judgments,  by  errors  have  been  introduced,  these  Courts  possess,  by  Common  law,  the  same  power  which  the  Courts  of  record  and  statute  have  of   rectifying the mistakes which have crept in ....   The House of Lords exercises a similar power  of rectifying mistakes made in drawing up its   own judgments, and this Court must possess   the same authority. The Lords have however   gone  a  step  further,  and  have  corrected  mistakes introduced through inadvertence in   the  details  of  judgments;  or  have  supplied   manifest  defects  in  order  to  enable  the  decrees  to  be  enforced,  or  have  added  explanatory  matter,  or  have  reconciled  inconsistencies.”

Basis for exercise of the power was stated in the same  decision as under:

“It is impossible to doubt that the indulgence   extended in such cases is mainly owing to the   natural  desire  prevailing  to  prevent   

40

irremediable injustice being done by a Court   of  last  resort,  where  by  some  accident,   without  any  blame,  the  party  has  not  been  heard  and  an  order  has  been  inadvertently   made as if the party had been heard.”

Rectification  of  an  order  thus  stems  from  the   fundamental  principle  that  justice  is  above  all.  It  is   exercised  to  remove  the  error  and  not  for  disturbing   finality.  When  the  Constitution  was  framed  the   substantive power to rectify or recall the order passed by  this Court was specifically provided by Article 137 of the   Constitution.  Our  Constitution-makers  who  had  the   practical  wisdom  to  visualise  the  efficacy  of  such  provision expressly  conferred the substantive power to  review  any  judgment  or  order  by  Article  137  of  the   Constitution. And clause (c) of Article 145 permitted this   Court to frame rules as to the conditions subject to which   any judgment or order may be reviewed. In exercise of   this power Order XL had been framed empowering this   Court to review an order in civil proceedings on grounds  analogous to Order XLVII Rule 1 of the Civil Procedure   Code. The expression, ‘for any other sufficient reason’ in   the clause has been given an expanded meaning and a   decree or order passed under misapprehension of true   state  of  circumstances  has  been  held  to  be  sufficient   ground to exercise the power. Apart from Order XL Rule   1 of the Supreme Court Rules this Court has the inherent   power to make such orders as may be necessary in the   interest of justice or to prevent the abuse of process of   Court. The Court is thus not precluded from recalling or   reviewing  its  own  order  if  it  is  satisfied  that  it  is   necessary to do so for sake of justice.

36. There is yet another circumstance. The question is,   whether  this  Court  should  enforce  the  1982  Rules  as   

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amended in 1987. The 1987 amendments have the effect   of smuggling in thousands of persons into Government   service  by  a  back-door  — without  complying  with  the   requirements of Articles 14 and 16. One can understand  the rules as framed in 1982, but it is extremely difficult to   appreciate or understand the reasons for which the 1987  amendment was brought in. The question, to repeat, is   whether  this  Court  should  extend  its  arm  —  its   discretionary power under Articles 136 and 32, as the   case  may be,  to implement  such unconstitutional  rules   and help these persons to gain a back-door entry into   Government  service  — that  too at  the  highest  level  in   group ‘C’ services straightaway. It  is true that no one   has questioned the 1987 amendments. The petitioners do  not  question  them  because  they  are  advantageous  to   them;  they  want  them  to  be  implemented.  The  Government cannot and does not question them because   it  has  itself  made  them.  The  parties  who  are  affected   namely  the  persons  awaiting  employment  under  the  Government  probably  do  not  even  know  what  is   happening.  But  where an unconstitutional  provision of   such vast impact is brought to the notice of this Court   and it is asked to enforce it, it is the constitutional duty of   this Court to refuse to do so. I am, therefore, of the firm  opinion that this Court should refuse to make any orders  directing  implementation  of  the  rules  as  amended  in   1987.  The  proper  direction  would  be  to  direct  the   absorption  of  the  S.Gs.  in  accordance  with  the  1982  Rules as originally framed (i.e., without reference to the   1987 amendments) and to the extent provided therein. Of   course those S.Gs. who have been absorbed already into   group ‘C’ service in accordance with the said rules will   remain unaffected since disturbing them, without notice   to them and in view  of all  the circumstances of this   case, may not be advisable. All those S.Gs. who have   not so far been absorbed in group ‘C’ service shall   

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continue in the present status, drawing Rs 960 per   month. They will be entitled for absorption in group  ‘C’ posts  only  in accordance with the 1982 Rules,   without reference to the 1987 amendments.”

Relying on these observations,  learned Attorney General,  submits that  

the Court should regardless of any technical objections proceed to hear  

the present application without insisting that the applicant should seek its  

relief in an application for review.  

19. I am of the considered opinion that  the facts  and circumstances  

highlighted in the present application would not enable the applicant to  

satisfy  the  conditions  under  which  this  Court  exercised  its  inherent  

jurisdiction in the S. Nagaraj’s case (supra).  A perusal of the judgment  

would clearly show that the Court was anxious to “even the balance”.  

On the one side, there were orders of the Court passed on vague and  

incomplete affidavit, creating rights and hopes in favour of five thousand  

stipendiary graduates to be absorbed as First Division Assistant, and on  

the other hand, there were others, the likely injustice to whom had been  

highlighted  in  the  affidavit  filed  by  the  Government  and  in  the  writ  

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petition filed by different sections of the employees. The Court in fact  

emphasised  the  principle  of  finality  of  orders  and  binding  nature  of  

directions issued by the Court which could only be overridden, if there is  

injustice inherent in the situation (see Page 615, Para 14 e & f).    A little  

later in the judgment, in Paragraph 16, the Court observed as follows:-

“16. “Mere  eligibility  was  not  sufficient  unless   availability of posts was also established. In absence of   posts  and  due  to  equitable  considerations  arising  in  favour  of  other  employees  the  practical  difficulty  in   appointing all the five thousand stipendiary graduates as   First Division Assistants appears to be insurmountable.   Even so we have no hesitation in saying that we would   have  refused  to  modify  our  order  dated  October  30,   1991 at the instance of the Government but the Court   cannot  be  unjust  to  other  employees.”   (emphasis    supplied)

20. These observations make it  abundantly clear  that  the Court  was  

dealing with a particularly unsavory situation created by the Government  

which had led  to  insurmountable  difficulties  and possible  injustice  to  

both  the  stipendiary  Magistrates  and  other  employees.   The  Court,  

therefore,  observed  that  but  for  this  unique  situation,  it  would  have  

refused to modify the order   dated 30th October, 1991.  In Paragraph 18,  

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the Court makes it clear that the order was passed under a mistake.  The  

Court  would  not  have  exercised  its  jurisdiction  but  for  the  erroneous  

assumption, which in fact did not exist.   In Paragraph 36, again, it  is  

reiterated by the Court that it would be the duty of the Court to rectify,  

revise and recall its orders as and when it is brought to its notice and  

certain of its  orders were based on wrong or mistaken assumption of  

facts  and  that  implementation  of  those  orders  would  have  serious  

consequences.   

21. In my opinion, in the present case, there is no question of mistaken  

facts, being presented by anyone to the Court.  The application also fails  

to indicate any miscarriage of justice or injustice which would be caused  

to  any  particular  class.    The  other  authorities  cited  by  the  learned  

Attorney General followed the judgment in  S. Nagaraj’s case  (supra)  

and would not advance the cause of the applicant or Union of India any  

further.  

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22. The  judgment  in  Gurdip  Singh  Uban’s  case  (supra)  rather  

supports the writ petitioner as noticed in the earlier part of this order.  

The learned Attorney General further submitted that this Court would be  

fully justified in passing the orders in exercise of its inherent jurisdiction  

under Article 142 of the Constitution of India. It can always correct its  

non errors brought to its notice either by way of a review petition or ex  

debito justitiae. In  support  of  the  submission,  the  learned  Attorney  

general has relied on judgment of this Court in the case of A.R. Antulay  

Vs. R.S. Nayak & Anr.  6   

23. In my opinion, the aforesaid judgment was also delivered in view  

of the peculiar circumstances of the case.  The Court therein set out the  

circumstances  in  which  this  Court  can  pass  the  appropriate  orders  

unhindered by technical rules.  The observations made in paragraph 48,  

which are of relevance, are as under :

“48. According  to  Shri  Jethmalani,  the  doctrine  of  per  incuriam has no application in the same proceedings. We   are unable to accept this contention. We are of the opinion   

6  1988 (2) SCC 602

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that this Court is not powerless to correct its error which   has  the  effect  of  depriving  a  citizen  of  his  fundamental   rights and more so, the right to life and liberty. It can do  so in exercise of its inherent jurisdiction in any proceeding  pending before it without insisting on the formalities of a   review application. Powers of review can be exercised in a   petition filed under Article 136 or Article 32 or under any   other provision of the Constitution if the court is satisfied   that its directions have resulted in the deprivation of the  fundamental rights of a citizen or any legal right of the   petitioner.  See the observations in  Prem Chand Garg v.   Excise Commissioner.”

24. In my opinion, the aforesaid observations would not be applicable  

in the facts and circumstances of the present case. The application herein  

is  not  moved  by  an  individual,  who  had  been  deprived  of  his  

fundamental rights by an order dated 4th July, 2011. The application is  

filed by the Union of India challenging the order on various legal and  

factual issues. In Antulay’s case (supra), one of the grounds taken was  

that the directions have been issued by the Court without following the  

principle of audi alteram partem. In the present case, the directions had  

been issued after hearing the learned counsel for the parties at length and  

on numerous dates. These directions, in my opinion, cannot be recalled  

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in an application seeking only modification of the order. At this stage, it  

would  also  not  be  possible  to  treat  the  present  application  for  

modification as an application for review.

25. In view of the above, with utmost respect, it would not be possible  

to agree with the order passed by Hon’ble  Mr. Justice Altamas Kabir.  In  

my opinion, the applicant Union of India has failed to make out a case to  

enable this Court to treat the modification application as application for  

review and proceed to hear the same in open Court.  In my opinion, the  

present application is wholly misconceived.  It is, therefore, dismissed.  

Union of India is, however, at liberty to take recourse to any other legal  

remedy that may be available to it.  

……………………………..J.      [Surinder Singh Nijjar]

New Delhi; September 23, 2011.

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49

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

I.A. NO.8 OF 2011

IN

  WRIT PETITION (CIVIL) NO.176 OF 2009

RAM JETHMALANI & ORS.                         Petitioner(s)

                VERSUS

UNION OF INDIA & ORS.                         Respondent(s)

 O R D E R  

Since  we  have  differed  in  our  views  regarding  the  

maintainability of I.A. No.8 of 2011 filed in W.P. No.176  

of 2009, let the matter be placed before Hon'ble the Chief  

Justice of India, for reference to a third Judge.

      ......................J.  

       (ALTAMAS KABIR)

......................J.  (SURINDER SINGH NIJJAR)

New Delhi; September 23, 2011.