Holding

The Court was split on the maintainability of the IA; one judge upheld it while the other dismissed it, and the issue was referred to a larger bench for final determination.

Summary

The petitioners, led by Ram Jethmalani, sought a writ directing the Union of India to recover unaccounted money of Indian citizens held in foreign banks and the Court had earlier appointed a Special Investigation Team (SIT) headed by two retired Supreme Court judges. The Union of India filed Interlocutory Application No.8 of 2011 seeking modification of the July 4, 2011 order appointing the SIT, arguing that the Court had overstepped its jurisdiction and that the application was essentially a review. The petitioners opposed, contending that the Court’s inherent powers under Article 142 and Order 47 Rule 6 allowed it to correct its own orders in the interest of justice. The larger bench was divided: Justice Altamas Kabir held the IA maintainable, while Justice Surinder Singh Nijjar held it non‑maintainable and dismissed it. The matter was consequently referred to the Chief Justice of India for referral to a third judge.

Issues considered

The maintainability of an interlocutory application seeking modification of a Supreme Court order under Article 142 and Order 47 Rule 6 of the Supreme Court Rules, 1966.
Whether the Supreme Court can exercise its inherent jurisdiction to modify or recall its own order without a formal review petition under Article 137.
The doctrine of separation of powers and whether appointing a SIT headed by retired judges impinges on executive functions.
The appropriate procedural route – modification/clarification application versus a review petition – for challenging a Supreme Court order.

Legislation cited

Constitution of Indias. Article 136, s. Article 137, s. Article 142, s. Article 145, s. Article 32, s. Article 42
Supreme Court Rules, 1966s. Order 47 Rule 6, s. Order XL Rule 1, s. Order XL Rule 3

Subjects

interlocutory applicationmaintainabilityArticle 142Article 137Supreme Court RulesSpecial Investigation Teamseparation of powersreview jurisdictioninherent powersblack money

Judgment

[2011] 11 S.C.R. 63

RAM JETHMALANI & ORS. A
v.
UNION OF INDIA & ORS.
(I.A. 8 of 2011 in WP No. 176 of 2009)
SEPTEMBER 23, 2011
8
[ALTAMAS KABIR AND SURINDER SINGH NIJJAR, JJ.]

CONST/TU/ON OF /NOIA, 1950:

Article 142 read with 0. 47 r. 6 of Supreme Court Rules, C
1966 - Unaccounted moneys of Indian citizens in foreign
banks - Order dated 4. 7. 2011 passed by Supreme Court
directing the High Level Committee constituted by Central
Government to be appointed as Special Investigation Team
including Director, Research and Analysis Wing therein and o
to be headed by two retired Judges of Supreme Court as its
Chairman and Vice-Chairman - I.A. filed by Union of India
seeking modification of the order dated 4. 7. 2011 -
Maintainability of - In view of difference of opinion regarding
maintainability of the I.A., the matter referred to larger Bench E
- Supreme Court Rules, 1966 - 0. 47, r6.

Saurav Chaudhary v. Union of India 2004 (2 ) Suppl.
SCR 611 = (2004) 5 SCC 618; Raja Soap Factory & Ors. v.
S.P. Shantharaj & Ors. (1965) 2 SCR 800; A. R. Antulay v.
=
R. S. Nayak & Anr. 1988 (1 ) Suppl. SCR 1 (1988) 2 SCC F
602; S. Nagaraj & Ors. v. State of Karnataka & Anr. 1993 (2)
=
Suppl. SCR 1 (1993) Supp. (4) SCC 595; Manganese
Ore (India) Ltd. v. Chandi Lal Saha 1990 ( 2 ) Suppl. SCR
533 =; Ram Chandra Singh v. Savitri Devi & Ors. 2004 (12)
SCC 713; Delhi Administration v. Gurdip Singh Uban & Ors. G
2000 ( 2 ) Suppl. SCR 496 = 2000 (7) SCC 296; Zahira
Habibul/ah Sheikh & Anr. v. State of Gujarat & Ors. 2004 (2 )
Suppl. SCR 571 ::::; 2004 (5) sec 353; A. P. SRTC & Ors.

63 H
64 SUPREME COURT REPORTS [2011] 11 S.C.R.

A v. Abdul Kareem 2007 (1 ) SCR 888 = 2007 (2) SCC 466 -
referred to

S. Nagaraj & Ors. v. State of Kamataka & Anr. 1993 (2)
Suppl. SCR 1 = 1993 (Supp.4) SCC 595; A. R. Antulay v.
B R. S. Nayak & Anr. 1988 (1) Suppl. SCR 1 = 1988 (2) SCC
602 - held inapplicable.
Case Law Reference:
In the order of Hon'ble Altamas Kabir, J
c 2004 (2) Suppl. SCR 611 referred to Para El
(1965) 2 SCR 800 referr.ed to Para ~t
1988 (1) Suppl. SCR 1 referred to Para 11
D 1"993 (2) Suppl. SCR 1 referred to Para 13
1990 (2) Suppl. SCR 533 referred to Para 16
In the order of Hon'ble S. S. Nijjar,J
2004 (12) sec 113 referred to Para 9
E
2000 (2) Suppl. $CR 496 referred to Para 10
2004 (2) Suppl. SCR 571 referred to Para 15
2007 (1) SCR 888 referred to Para ·17
F
1993 (2) Suppl. SCR 1 held inapplicable Para 18
1988 (1) Suppl. SCR 1 held inapplicable Para 22
CIVIL ORIGINAL JURISDICTION
,, : Under Article 32 of the
G Constitution of India.

Goolam E. Vahanvati, AG, H.P. Raval, ASG, J.S. Attri, and
Anil B. Divan, Lata Krishnamurthy, R.N. Karanjawala, Manik
Karanajawala, Sandeep Kapur, Ravi Sharma, Pranav Oeish,
S. Patnaik, Arjun Mahajan (for Karanjawala & Co.) Meenakshi
H
RAM JETHMALANI & ORS. v. UNION OF INDIA & 65
ORS.
Arora and Samir Ali Khan, Devadatt Karnath, Anoopam N. A
Prasad, Naila Jung, Nishanth Patil, Arijit Prasad, T.A. Khan,
B.V. Balaram Das, Ashok Kumar Gupta I, H.S. Parihar, Asha
Gopalan Nair (AOR), K.J. John & Co., Arti Singh, Pratap
Venugopal, Namrata Sood, Sadhna Sandhu, Anil Katiyar,
Aniradha Mutatkar, Anagha S. Desai, K.J. John & Co. Santosh B
Paul, Arti Singh, Arvind Gupta, Rajiv Nanda and Sushma Suri
for appearing parties.

The following orders of the Court was delivered

ORDER. c
ALTAMAS KABIR, J. 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 D
Enforcement and the Chairman, Central Board of Direct Taxes,
Department of 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 E
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 F
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 G
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 H
66 SUPREME COURT REPORTS [2011] 11 S.C.R.

A 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
B was divided into three parts. The first part of the order dealt
with the alleged failure of the Central 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
C 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
D 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
E 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
F different departments and the coordination of efforts betweien
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
G Finance, composed of :

(i) Secretary, Department of Revenue, as the
Chairman;

(ii) Deputy Governor, Reserve Bank of India;
H
RAM JETHMALANI & ORS. v. UNION OF INDIA & 67
ORS. [ALTAMAS KABIR, J.]
(iii) Director (IB); A
(iv) Director, Enforcement;

(v) Director, CBI;

(vi) Chairman, CBDT; B

(vii) DG, Narcotics Control Bureau;

(viii) DG, Revenue Intelligence;

(ix) Director, Financial Intelligence Unit; and c
(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 Secretary, D
Cabinet Secretariat. It was further recorded that the Union of
India had claimed that such a-multidisciplinar 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 E
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], F
(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 :- ·
G
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,
H
68 SUPREME COURT REPORTS [2011] 11 S.C.R.

A 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,
Financial Intelligence Unit; and (x) JS (FT & TR-I),
B 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;

c (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;
D and that the Special Investigation Team function
under their guid.ance and direction;
-
(iv) That the Special Investigation Team, so constituted,
shall be charged with the responsibilities and duties
of investigation, initiation of proceedings, and
E
prosecution, whether in the context of appropriate
criminal or civil proceedings of: (a) all issues
relating to the matters concerning and ~rising from
unaccounted monies of Hassan Ali Khan and the
Tapurias; (b) all other investigations already
F 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 accou~ts by Indians or other entities operating
in India; and (c) all other matters with respect to
G 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 responsibilities described above, also lie
H
RAM JETHMALANI & ORS. v. UNION OF INDIA & 69
ORS. [ALTAMAS KABIR, J.]
the responsibilities to ensure that the matters are A
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 B
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 c
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. D
(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 E
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 F
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;

(vii) That the Union of India, and where needed even the G
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 ail the
H
70 SUPREME COURT REPORTS [2011] 11 S.C.R.

A 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
B
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 investigation~ and
initiate proceedings, for the purpose of bringing
c 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
D 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.

E 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
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
F 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
G 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 l.A.No.1 of 2009. Mr.
Divan pointed out that it was the Government itself which had
H set up a High Level Committee consisting of senior officers of
RAM JETHMALANI & ORS. v. UNION Ot- INUIA & 7 r
ORS. [ALTAMAS KABIR, J.]
different departments to take steps for retrieving the black A
money which had been deposited in banks in tax havens all
over the world and, in particular, in Swiss Banks and it did not,
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 B
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 C
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 D
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 E
contention of the Respondents in I.A 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 F
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 G
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
H
72 SUPREME COURT REPORTS [2011] 11 S.C.R.

A 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 Supreme Court Rules, 1966, and not by an
interlocutory application and that too in a disposed of matter.
B
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
C 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
D 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],
E this Court could exercise its jurisdiction under Article 142 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
F 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
G 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)
H
RAM JETHMALANI & ORS. v. UNION OF INDIA & 73
ORS. [ALTAMAS KABIR, J.]
2 SCR 800], wherein it was observed that by jurisdiction what A
is meant is the extent of power which is conferred upon a Court
by its Constitution to try a matter or a cause. Such power is
not capable of being enlarged because an extraordinary
situation requires the Court to exercise it.
B
10. Mr. Naphade submitted that byvirtue 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 C
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 D ·
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, E
if subsequently questioned in another appeal instead of by way
of a Review Petition under 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 F
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 G
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
H
74 SUPREME COURT REPORTS [2011] 11 S.C.R.

A 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
B situation. The 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.
c 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
D 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
E 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 with Order 47 Rule
6 of the Supreme Court Rules, 1966 and be proceeded with
F 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
G 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 Kamataka & Anr. [(1993) Supp. (4) SCC 595], which
H was heard along with several other cases by a Bench of three
RAM JETHMALANI & ORS. v. UNION OF INDIA & 75
ORS. [ALTAMAS KABIR, J.]
Judges. In the said cases an order had been passed on oral A
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 ttie order on oral mentioning, held that
justice is a virtue which transcends all barriers and neither the B
rules of procedure nor technicalities of law can 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 c
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
0
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 E
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 unfortunate state
of affairs that should not desist the Supreme Court from revising
or reviewing the said orders which had serious consequences. F
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 V11rong or mistaken assumption of facts and that
implementation of those orders will have serious consequences. G

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 H
76 SUPREME COURT REPORTS [2011) 11 S.C.R.

A 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
s India, the said 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
C 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
D 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),
E such a power was not only in herentin 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. Justice transcends all barriers and neither rules
of procedure nor technicalities can stand in its way, particularly
F if its implementation would result ininjustice. 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
G 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
H [(1991) Supp. 2 SCC 465), wherein this Court extended the
RAM JETHMALANI & ORS. v. UNION OF INDIA & 77
ORS.
benefit of its judgment to persons who were not even in appeal A
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,
8
it would not preclude the Applicants from filing an 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 C
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 D
include threats to the security of the country.

18. The objections raised by Mr. Anil 8. Divan and
supported by Mr. Shekhar Naphade, regarding the
maintainability of I.A. No.8 of 2011, are, therefore, rejected and E
the said application may therefore be pro_ceeded with for
hearing.

ORDER

SURINDER SINGH NIJJAR, J. 1. I have had the F
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 view taken by my Learned Brother. My Learned Brother has
rejected the preliminary objections raised by Mr. Anil Divan and G
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 H
78 SUPREME COURT REPORTS (2011] 11 S.C.R.

A 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
B 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
c information about the alleged money lying deposited in the
foreign accounts and highlighting steps 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
0
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
E 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
F 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 tabulate the efforts to create
G 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
H
RAM JETHMALANI & ORS. v. UNION OF INDIA & 79
ORS. [SURINDER SINGH NIJJAR, J.
success not only in getting information on illicit money parked A
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
8
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 C
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 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 D
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 E
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 F
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 G
separation of powers. This, 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 Ill and for no other
purpose. It is further submitted that the judgment proceeds on H
80 SUPREME COURT REPORTS (2011] 11 S C.R

A admissions, concessions, submissions and acknowledgments
attributed to the counsel appearing for the Union of India. It 1s
pointed out that such concessions and admissions do not
appear to have been marle. On the basis of the facts pleaded.
the prayer is made for modification of the order dated 4th July,
s 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
c 6 The aforesaid facts have been stated merely to indicate
that the appl1cat1on would not be maintainable, in its present
form. as in substance. 11 is more in the nature of a Memorandum
of Appeal In my op1n1on, the application seeks to reopen the
whole matter on merits which would not be permissible in an
D 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
E 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
F 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
G statutory provisions. This view of mine will find support from a
number of earlier decisions of this Court. It would, at this stage,
be appropriate to make a reference to some of the
observations made.

H 9. In the case of Ram Chandra Singh Vs. S avitri Devi &
RAM JETHMALANI & ORS. v. UNION OF INDIA & 81
ORS. [SURINDER SINGH NIJJAR, J.
Ors. 1 this Court considered the issue as to whether an A
· 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:-
B
"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 C
as also Article 1~7 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 D
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
the parties. Such a course of action, in our opinion, is not
contemplated in law. If there exist errors apparent on the E
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 F
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 G
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 wot.:ld be relevant to notice the

1 ?004 112\ sec 713 H
82 SUPREME COURT REPORTS [2011) 11 S.C.R.

A observations made by this Court in paragraph 1E5 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
B
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
c review are a mere reproduction of the grounds of 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
D 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
E 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/
F judgment. Since the application herein has bee.n 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:-

G "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 Court Rules,
1966 a review application has first to go before the learned
H 2. 2000 m sec 296
RAM JETHMALANI & ORS. v. UNION OF INDIA & 83
ORS. [SURINDER SINGH NIJJAR, J.
Judges in circulation and it will be for the Court to consider A
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 B
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 .... " C

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. D
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
E
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 F
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 G
cannot be permitted 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.)
H
84 SUPREME COURT REPORTS [2011] 11 S.C.R.

A 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
B 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
C 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,

D 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 Memorandum of Appeal. At
best, it could be said to be in substance an Application for
E 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. S fate of Gujarat & Ors. 3 this Court, faced with a similar
F 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
G 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
H 3. c2004 <5l sec 353.
RAM JETHMALANI & ORS. v. UNION OF INDIA & 85
ORS. [SURINDER SINGH NIJJAR, J.

is unjustified, and could not be countenanced also either A
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 B
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 c
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
0
. 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.
E
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 F
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 G
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
4. 2007 (2) sec 466. H
86 SUPREME COURT REPORTS [2011) 11 S.C.R.

A 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
8 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 appearrng for the Union of India had relied on a
number of judgments in support of his submissions that the
C 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
D 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 had passed an
order having far reaching consequences and pre-judicially
affecting the rights of other groups of employees under Articles
E 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
F 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
G brought to the notice of the Court that it would be in the interest
ofjustice 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:-
H 5. 1993 (Supp. 4) sec 595.
RAM JETHMALANI & ORS. v. UNION OF INDIA & 87
ORS. [SURINDER SINGH NIJJAR, J.

"18. Justice is a virtue which. transcends all barriers. A

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 for
consistency but it is not as inflexible in Administrative Law B
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 C
which in fact did not exist and its perpetration shall result
in miscarriage of justice then it cannot on a?Y 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
0
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 E
its orde~. 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 F
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 reexamination G
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 H
88 SUPREME COURT REPORTS [2011] 11 S.C.R.

A out to correct accidental 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
B 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
c 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
D 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
E 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
F 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
G
decision as under:

"ft is impossible to doubt that the indulgence
extended in such cases is mainly owing to the
natural desire prevailing to prevent irremediable
H
RAM JETHMALANI & ORS. v. UNION OF INDIA & 89
ORS. [SURINDER SINGH NIJJAR, J.

injustice being done by a Court of last resort, where A
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 B
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 C
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. D
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 XLVll Rule 1
of the Civil Procedure Code. The expression, 'for any other
sufficient reason' in the clause has been given an E
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 F
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.
G
36. There is yet another circumstance. The question is,
whether this Court should enforce the 1982 Rules as
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
H
90 SUPREME COURT REPORTS [2011] 11 S.C.R.

A 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
B 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
c 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
D 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
E
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 acc9rdance with the 1982 Rules as originally
framed (i.e., without reference to the 1987 amendments)
F 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
G advisable. All those S.Gs. who have not so far been
absorbed in group 'C' service shall 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
H
RAM JETHMALANI & ORS. v. UNION OF INDIA & 91
ORS. [SURINDER SINGH NIJJAR, J.
amendments." A

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 8
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 C
(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 D
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 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 E
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:-
F-
"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 G
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 c annot be unjust to other
employees." (emphasis supplied)
H
92 SUPREME COURT REPORTS [2011] 11 S.C.R.

A 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
B this unique situation, it would have refused to modify tine order
dated 30th October, 1991. In Paragraph 18, 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,
c 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.

D 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
E the judgment in S. Nagaraj's case (supra) and would not
advance the cause of the applicant or Union of India any further.

22. The judgment in Gurdip Singh Uban's case (supra)
rather supports the writ petitioner as noticed in the earlier part
. F 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
G justitiae. In support of the submission, the learned Attorney
general has relied on judgment of this Court in the case of AR
Antulay Vs. R .S. Nayak & Anr. 6

23. In my opinion, the aforesaid judgment was also

H 6. 1988 (2) sec 602
RAM JETHMALANI & ORS. v. UNION OF INDIA & 93
ORS. [SURINDER SINGH NIJJAR, J.
delivered in view of the peculiar circumstances of the case. The A
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 :
B
"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
that this Court is not powerless to correct its error which
has the effect of depriving a citizen of his fundamental C
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 D
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."
E
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 in~ividual, who had
been deprived of his fundamental rights by an order dated 4th
July, 2011. The application is filed by the Union of India F
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 G
for the parties at length and on numerous dates. These
directions, in my opinion, cannot be recalled 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.
H
94 SUPREME COURT REPORTS [2011] 11 S.C.R.

A 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
8 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.

ORDER
c
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.
D
R.P. Matter referred to Larger Bench.