~QUESTIONS OF LAW~

~QUESTIONS OF LAW~
(Mathews J Nedumpara)

(A) If a surgeon of a Government hospital, who conducts a cesarean operation, negligently leaves a scissor inside the belly of the patient leading to fatal consequences is liable under civil and criminal laws; so too the State, his employer, will not similar principle apply in a case, as the instant one, where the 1st Respondent, Presiding Officer, DRT-II, Mumbai, who fails to discharge his statutory function in the manner expected of him, which requires him to conduct a summary trial while adjudicating an application under Section 17 of the SARFAESI Act, which would mean the parties to the lis being afforded due opportunity of leading evidence in support of their respective case; so too adduce evidence to contradict the case appearing against them; an opportunity of hearing, instead of dismissing the case in limine while the Petitioner had moved the DRT for an ad-interim injunction against forcible dispossession?

(B) What is the extent of sovereign immunity? Could a Presiding Officer, DRT, nay, Judges and Presiding Officers enjoy absolute immunity merely because they are stricto sensu not employees of the State and the function they discharge is a sovereign one, distinct from the function which is discharged by a surgeon, as aforesaid?

(C) Is not the concept of absolute sovereign immunity in conflict with the ethos of the Constitution and in direct conflict with Part III of the Constitution and thus void within the meaning of Article 13(2) thereof?

(D) Are not Section 3 of the Judges (Protection) Act, 1985 and Section 33 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 unconstitutional and void inasmuch as the said Sections afford absolute immunity not merely to Judges/Presiding Officers, but even to the State in the discharge of their sovereign function, no matter by negligent discharge thereof, and they could cause irreparable injury to the rights and remedies of a subject or even the life and liberties of a person who is put on trial in a criminal case?

(E) Between two legislations, namely, Multi-State Co-operative Societies Act, 2002 and the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002, the former one being a special legislation and the latter being a general legislation, which would prevail? If the principle specialia generalibus derogant is applicable, are the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 applicable to the Respondent Bank so far as the recovery as against the Petitioner is concerned?

(F) Could the learned Magistrate pass an order under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 without notice to and without hearing the Petitioner? Is not obligation to observe the principles of natural justice be read into Section 14 of the said Act?

(G) Was it competent for the Hon’ble High Court to delete Respondent No.1 from the parties arraigned in the Writ Petition when without his presence the reliefs sought for therein cannot be granted? Was it competent for the Hon’ble High Court to do so suo motu?

(H) Could the Hon’ble High Court have ordered that in case the Petitioner fails to pay 50% of the amount claimed to be due within three weeks, subject to which the interim injunction was granted, the very Writ Petition before it shall stand dismissed without reference to the Court inasmuch as the consequence of non-compliance with the condition subject to which interim injunction was granted could only be vacation of the interim protection and not dismissal of the Writ Petition?

(I) Is not the Hon’ble High Court duty bound to hear the Petitioner’s case on merits and dispose it of even if the Petitioner were to default in complying with the conditions subject to which the interim injunction was granted?

These interesting questions of law were raised by Sri Mathews Nedumpara, President, NLC.