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Judgment
Heard Sri Ashish Bansal, learned counsel in support of the present review application dt. 13th of April, 2011 and Shri Bharat Ji Agrawal, learned senior counsel for the Department along with Shri Ashok Kumar for the respondents. By means of the present application, the applicant/petitioner has sought the following four reliefs:
(i) to hold that the writ petitions as aforesaid are open for decision on all the issues raised therein except the right of the petitioners to look into the records related to authorisation of search;
(ii) to direct for listing of the writ petitions at an early date as is convenient to the Hon''ble Court;
(iii) in the meantime to grant stay from further proceedings that have been initiated by the respondents in the wake of search and seizure action that had commenced on 15th Sept., 2009; and
(iv) to grant such other relief as is found admissible under law and equity.
We may notice the background facts in brief.
The present writ petition has been filed challenging a search conducted by the IT Department on 15th/16th Sept., 2009. After the exchange of affidavits, the matter as to whether the petitioners are entitled to have the copy of satisfaction note for conducting the search came up for'' hearing before the Court. This point was argued by the learned counsel for the petitioner before the Bench consisting of Hon''ble Mr. Justice Yatindra Singh and one of us {Prakash Krishna, J.).
After hearing the counsel for the parties at length, the judgment was delivered on 4th of February, 2011. We have been informed that against the aforesaid judgment the Department has gone up in appeal before the Supreme Court and the matter is pending before the apex Court. It may also be placed on record that the writ petition is required to be heard and decided on other points and it is still pending consideration before this Court.
The present application with the reliefs already reproduced above, was filed on 13th April, 2011. In the application it has been stated that the order dt. 4th Feb., 2011 has been passed in the teeth of the order as recorded in the order sheet dt. 8th Dec., 2010. For the sake of convenience, the said order sheet is reproduced below in its entirety:
The officers from the Department of income tax are here. Shri Bharatji Agarwal, senior advocate, on behalf of the IT Department (the Department) states that:
The records regarding to search and seizure are with the officers. He can show the records to the Court, but not to the petitioner or their counsel.
The counsel for the petitioner submits that:
There is no relevant material for framing the reasonable belief that the search was necessary;
The Court cannot consider any document in this regard unless that is also shown to the petitioner or his counsel.
In this case no privilege has been claimed and the Court and the petitioner can always see the documents.
The submissions made by the counsel for the parties raise substantial questions.
On the request of counsel for the parties, list this case on 5th Jan., 2011. By that date, counsel for the parities may do the following things:
The parties may submit their written statements along with the photocopy of the judgments;
It will be open to the IT Department to claim privilege regarding the documents under s. 123-125 of the Evidence Act or under any other provisions of law.
The counsel for the IT Department will also obtain instructions if there is any difficulty in case all the cases are transferred to Delhi.
Till the next date of listing, the assessment proceedings under ss. 153A and 153C may go on, but the final assessment order may not be passed. The petitioner will also co-operate in the assessment proceedings.
Sri Ashish Bansal, learned counsel for the petitioner, submits that in view of the order sheet dt. 8th Dec., 2010 the subsequent order passed on 4th Feb., 2011 should be construed to the points as noted in the order sheet dt. 8th Dec., 2012. He submits to that extent, the judgment and order dt. 4th Feb., 2011 be modified and reviewed. He further submits that the above order sheet be read along with the entry in the order sheet dt. 6th Jan., 2011. The said entry is reproduced below:
Heard counsel for the parties. Orders on the point, whether the petitioner is entitled to see reasons for search, is reserved.
The interim order in this case as well as in the connected cases are extended till the next date of listing.
The submission in short is that by the order sought to be reviewed, the Court has decided other issues which were not argued by the petitioner''s counsel. Therefore, the conclusions recorded in sub-paras A and B of para 130 of the judgment sought to be reviewed are beyond the scope of the order dt. 8th Dec., 2010, vide para-14 of the review application.
Opposing the prayer, Sri Bharat Ji Agrawal, learned senior counsel for the Department, submits that the order dt. 4th Feb., 2011 was passed after hearing the arguments at full length of the learned counsel for the parties. The submission is that in the said order the Court has met and considered all the arguments which were urged by the petitioner. According to him, it is now no longer open to the petitioner to say anything otherwise. The Court was taken through the various paras of the judgment dt. 4th Feb., 2011 to show as to what were the arguments which were advanced by the petitioner.
Considered the respective submissions of the learned counsel for the parties and perused the record.
A bare perusal of the order dt. 4th Feb., 2011 will show that after hearing the counsel for the parties, this Court formulated the points for determination as mentioned in para 20 of the order. Thereafter, the Court took into consideration the points one by one. In the judgment at various places it is mentioned-"the counsel for the petitioner submitted that".
A query was put to Sri Ashish Bansal as to whether there is any affidavit by Sri S.K. Garg stating that he did not argue the points mentioned in the judgment. He could not dispute the fact that there is no such affidavit by Sri S.K. Garg, advocate, who argued the writ petition which culminated into the order dt. 4th Feb., 2011.
However, Sri Ashish Bansal submits that those points were not urged by Sri S.K. Garg, advocate. We are not prepared to accept the said statement. It was pointed out day before yesterday (the matter was taken day before yesterday) to Sri Ashish Bansal that a statement made in the judgment can be controverted, if at all, by the affidavit filed by the counsel who argued the matter. In spite of our indication, Sri S.K. Garg, advocate, could not dare to file the affidavit to controvert the statements made in the judgment.
It is interesting to note that the affidavit filed in support of the review application has been sworn by one Sri Satish Bansal. In the said affidavit it has not been stated that the deponent of the said affidavit was present when the case was argued; nor it has been stated that the case was argued in his presence.
The learned counsel for the petitioner could submit only this much that in view of the two entries referred to above in the order sheet, the controversy was limited. The order sheet records the proceedings in brief. But it does not mean, what the petitioner now wants to urge is correct. It is duty of the Court to deal with all the arguments/points raised by the learned counsel for the parties. If the petitioner has chosen to take a stand during the course of the argument, we are of the opinion that the petitioner cannot take a ''U'' turn and say that the judgment may be reviewed as the points for determination were limited.
At this stage, we may consider the few decisions relied upon by the learned senior counsel for the respondents.
Reference was made to Associated Tubewells Ltd. Vs. R.B. Gujarmal Modi, wherein the apex Court while dismissing the review application has observed as follows:
We cannot help saying that this was wholly improper. We are not saying that a judge is infallible. It is possible that a view which ultimately appeals to a Judge in coming to his conclusion is erroneous. That by itself can afford no ground for review. But what is improper is to assume and assert as to what a judge''s view is in making a particular order when the order pronounced does not set it out and to make references to what judges say in course of arguments and make that a ground for rehearing.
Judges of this Court cannot be dragged into a controversy as to whether the statements ascribed to them are correct, or express correctly and fully what they had in view. What may have been said or expressed may often enough be in the course of tentative loud-thinking and may reflect only very partially what the judges had in view. What ultimately weighs with the Judges in pronouncing the order, when doing so without giving reasons, may often be not reflected in what is tentatively and openly expressed.
Judges cannot be drawn into controversy over such matters. It is not consistent with the dignity of the Court and the decorum of the Bar that any course should be permitted which may lead to controversy as to what a judge stated in Court and what view he held. Such matters are to be determined only by what is stated in the record of the Court. That which is not so recorded cannot be allowed to be relied upon giving scope to controversy. To permit the atmosphere of the Court to be vitiated by such controversy would be detrimental to the very foundation of the administration of justice.
It is regrettable that the learned advocate in spite of a hint from one of the members of the Court at the early stages of this hearing did not see the impropriety of the course he has adopted and has persisted in it before us.
In the case of State of Maharashtra Vs. Ramdas Shrinivas Nayak and Another, the Supreme Court has laid down the manner for deciding the review application in such matters. The Supreme Court has noted that the matters of judicial record are unquestionable. They are not open to doubt. The judgments cannot be dragged into arena. The judgments cannot be treated as mere counters in the game of litigation. Therein it has noticed an earlier judgment of the Privy Council in the case of AIR 1926 136 (Privy Council) . It has been ruled that the Courts are bound to accept the statements of the judges recorded in their judgments, as to what transpired in the Court. The Court cannot allow the statements of Judges to be contradicted by the statements at Bar or by affidavit or other evidence. If the Judges say in their judgments that something was said or admitted before them that has to he the last word on the subject. The relevant para from the judgment of State of Maharashtra v. Ramdas Shriniwas Nayak (supra) is reproduced below:
Judgments cannot be treated as mere counters in the game of litigation.'' (Per Lord Atkinson in Somasundaram Chetty v. Subramanian Chetty). We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in Court. We cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error (Per Lord Buckmaster in Madhu Sudan Chowdhri v. Chandrabati Chowdhrain). That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment.
(Emphasis, italicised in print, supplied)
The principle is well settled that the statement that a fact as to what transpired at the hearing recorded in the judgment of the Court, are conclusive of the fact so stated and no one can contradict such statement by affidavit or other evidence.
Similar view has been taken by the apex Court in the Ex-Constable Ramvir Singh Vs. Union of India (UOI) and Others, . For the sake of convenience para 11 from the report is reproduced below:
This Court is bound by the Judge''s record. If the High Court, as contended by Mr. Pandey, despite raising a contention in that behalf did not deal therewith, the only remedy available to him was to move the High Court drawing its attention thereto. Apart from the fact that the said procedure was not adopted by appellant, even before us, neither the counsel appearing in the High Court nor the appellant, affirmed any affidavit that such a contention, in fact, had been raised before the High Court. It is, therefore, not possible for us to accept that the contention as regards the discrimination against the appellant vis-�-vis the said Kalipada Mandal was raised.
The aforesaid judgment has been followed in State of Assam Vs. Union of India (UOI) and Others, .
Viewed as above, we are of the view that no case for reviewing the judgment dt. 4th Feb., 2011 has been made out. Before parting with the case, we may note that the above review application was filed on 15th April, 2011 and the writ petition was listed before the different Benches of this Court from time to time. The case was adjourned for one reason or the other on account of the non-availability of Sri S.K. Garg, advocate, as is apparent from the order sheet. At no point of time, Sri S.K. Garg, advocate, who had argued the matter originally, invited attention of the Court to decide the review application. In the meantime, Hon''ble Mr. Justice Yatindra Singh who delivered the judgment of the Division Bench has been transferred as Chief Justice to Chhattisgarh High Court and after his Lordship''s transfer, it appears that the present application is being pressed. Why the attention of the Court towards the present application was not drawn, when the said Bench, which passed the order in question, was available and it is now being pressed at this distance of time, by the petitioner, could not be answered by the petitioner. It is not necessary for us to say anything as to why the matter was not pressed earlier as the intention of the petitioner is writ large. Suffice it to say that the application is not bona fide one.
We are of the opinion that the filing of the present application is nothing but an abuse of the process of Court and we cannot sit like a mute spectator.
The application is dismissed with cost of Rs. 10,000.