In the High Court of Judicature at Bombay Ordinary Original Civil Jurisdiction
CHAMBER SUMMONS (LODGING) NO.214 OF 2018
IN WRIT PETITION (LODGING) NO.1180 OF 2018
Bombay Bar Association ..Applicant
In the matter of: Mathews J. Nedumpara … Petitioner Versus Hon’ble Shri Justice S.J. Kathawalla ..Respondent
AFFIDAVIT IN REPLY
I, Mathews Nedumpara, S/o. Joseph, aged 59, Advocate, residing at 12-F, Harbour Heights, “A” Wing, 12th Floor, Sassoon Dock, Colaba, Mumbai – 400005, do hereby solemnly affirm and state as follows:
1. I am the Petitioner in the above Writ Petition and respondent in the above Chamber Summons. I know the facts of the case and am competent to swear this affidavit.
2. I am a bit taken aback to come across the above Chamber Summons seeking leave of this Hon’ble Court to allow the Applicant to intervene in the above proceedings. I am taken aback because the Applicant, the Bombay Bar Association, has sought to intervene in the above Writ Petition not to support the plea which I have made which I believe every right-thinking person is duty bound to support, my plea being that if fundamental rights of a citizen are violated by an Act of Parliament or an Executive action, a judicial review will lie and the same principle will equally apply where fundamental rights of a citizen are violated by a judicial order. To put it pithily, Article 13(2) of the Constitution is all pervasive; it makes no distinction between actions of the legislature, executive and judiciary where it is violative of the fundamental rights.
3. I instituted the above Writ Petition seeking a declaration that fundamental rights are inalienable, transcendental and primordial, which cannot be taken away or abridged except by a procedure which is just, fair and reasonable, no matter whether such violation is at the hands of the legislature, executive or judiciary. In the light of certain observations of Hon’ble Shri Justice S.J. Kathawalla in Commercial Suit No. 614 OF 2017 that I am a most unethical lawyer as I represented the Defendant No.1 therein, one Shri Gaokar, which received wide publicity in the print and electronic media, I was left with no option but to institute the above Writ Petition for a declaration that judiciary also is a “State” within the meaning of Article 12 and a judicial review will lie under Article 226 even where a judgment is at the hands of a co-ordinate Bench or of a superior Court. Seeking such a declaration became necessary for the reason that in the judgment of the Nine-Judge Constitution of the Supreme Court in Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, wherein certain obiter dicta were made that no certiorari will lie against orders of a co-ordinate Court or of a superior Court, for, certiorari will lie against orders of subordinate Courts and Tribunals. Though in the said case the Court did not enter into any authoritative pronouncement as to whether distinct from a certiorari a declaration that an order of a superior Court (Supreme Court) or of a co-ordinate Bench of a High Court or another High Court will not lie, in many subsequent judgments the decision in Naresh Shridhar Mirajkar was relied upon and it was said that the Supreme Court in the said judgment held that no writ will lie against judicial orders of superior Courts and such orders cannot be corrected except by direct proceedings, namely, an appeal or review, if the statute provides one, and not collaterally. If the High Courts and Supreme Court have no jurisdiction under Article 226 or Article 32 to grant a declaration that a judgment or order of a superior Court, nay, a High Court or Supreme Court where such order is null and void, then such a remedy can be granted only by a Civil Court in its Ordinary Original Civil Jurisdiction. I am more than glad to accept the said proposition, but I come across literally every day Acts of Parliament and statutory instruments being declared as unconstitutional and void by the High Courts and the Supreme Court under Articles 226 and 32, respectively. The declaration in the NJAC judgment that the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 are unconstitutional in a proceeding under Article 32 is a classic example that a declaratory relief can be granted under Article 32 and, by extending the same principle, under Article 226 of the Constitution.
4. The issue before this Hon’ble Court in the instant case is not merely concerning me and Hon’ble Shri Justice S.J. Kathawalla; it is of much wider ramification. If this Hon’ble Court were to hold that no writ will lie where my fundamental rights are infringed by a judicial order and Hon’ble Shri Justice S.J. Kathawalla enjoys absolute immunity, I may make myself mentally prepared to accept the same. But the ramification of such a scenario is unthinkable. A citizen will have no remedy or forum for the enforcement of his rights where he is injured by a judicial order which is rendered void ab initio – a proposition which was found unacceptable by the Seven-Judge Constitution Bench in A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 wherein the Court held that where a citizen’s fundamental rights are infringed even by a judicial order, such an order, even at the hands of a Five-Judge Constitution Bench, such an order is a nullity; it never ever existed in the eye of law and it could be challenged whenever and wherever it is sought to be enforced. (See also Kiran Singh v. Chaman Paswan, AIR 1954 SC 340).
5. I am amused by the affidavit in support of the above Chamber Summons under reply. I do not wish to cast any aspersions on the Applicant Bombay Bar Association, though much could be said about it in poor light. Without even being a legal entity, as it is an unregistered organization, the Applicant has allowed itself to be reduced to a protégé of a few elite lawyers. The first generation lawyers who constitute to be a vast majority of the legal fraternity are given a step-motherly treatment, while the kith and kin, nephews and juniors of sitting and former Judges of the Supreme Court and High Courts, so too of celebrated lawyers, Chief Ministers, Governors et al, and a few first generation lawyers who are all politically connected or are close to big industrial houses are given preferential treatment.
6. It does not behove me to ridicule my fraternity but I cannot avoid feeling pity at the suggestion that if I am aggrieved by the observations of Hon’ble Shri Justice S.J. Kathawalla, which are per se defamatory and false, I should seek correction thereof by virtue of an appeal instead of instituting the above Writ Petition. The said suggestion, nay, unsolicited advice, though offered in spite, reveals the Applicant’s diminishing passion for law. This is not amusing, this is quite disturbing. Although it is needless to mention, but, to enable the Applicant to gain some knowledge, I must mention that an Appeal is the continuation of an original proceeding; neither I nor Hon’ble Shri Justice S.J. Kathawalla is a party in Suit No. 614 OF 2017. I was the counsel and His Lordship the Judge in the said lis. Instituting an appeal making Hon’ble Shri Justice S.J. Kathawalla a Respondent for enforcement of a nominal compensation of Re.1/-, which I seek, would mean a procedure against the first principle of jurisprudence unheard of in the legal history. The course of action suggested by the Applicant in its affidavit is nothing but very poor knowledge of law. I wonder what assistance would they give this Hon’ble Court should the Applicant be allowed to intervene!
7. In the instant Writ Petition I am the person aggrieved and the relief which I seek is a nominal compensation of Re.1/- for being defiled in an unjust manner by certain observations made by Hon’ble Shri Justice S.J. Kathawalla behind my back, while it is a fundamental principle that no such observations could have ever been made without notice to me and without affording me an opportunity of being heard. The Applicant has no locus to be a party to the instant case. If it supports my cause, then it should seek its impleadment as a co-Petitioner. Since no such application is instituted by the Applicant Bombay Bar Association, it is not necessary for me to comment upon such a scenario. The application for intervention is wholly without any merit and if it is allowed to intervene, far from the cause of justice being served, the cause of justice would be put to great jeopardy.
Would be Solemnly affirmed at Mumbai
[ this __ day of June, 2018. ] Petitioner
Advocate for Petitioner
