Dismissed

Dr Savio Pereira v. Union of India

Karnataka HC18 Jul 2018WP/25577/2018

Case brief

AI extract

What is this about?

A PIL petition challenging the appearance of retired CCI officials before adjudicatory bodies was dismissed as an abuse of process due to lack of *locus standi* categories, failure to implead respondents, and non-concern of PIL jurisdiction for professional misconduct matters.

What did the court decide?

Petition dismissed with exemplary costs of Rs. 1,00,000 to be deposited with the Deputy Commissioner, Bengaluru.

Dr Savio Pereira Vs Union of India — Constitutional and Fundamental Rights | Karnataka HC (2018)

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W.P.No.25577/2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18^th DAY OF JULY, 2018

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PRESENT

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HON’BLE MR.JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE

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AND

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HON’BLE MR.JUSTICE R.DEVDAS

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WRIT PETITION NO.25577/2018 (GM-RES-PIL)

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BETWEEN :

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Dr. SAVIO PEREIRA S/O TOMAS PEREIRA AGED ABOUT 49 YEARS R/O 573, 5^TH AVENUE TEACHERS COLONY VENKATAPURA KORAMANGALA BANGALORE-560034

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... PETITIONER

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(BY Dr. SAVIO PEREIRA, PARTY-IN-PERSON)

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AND:

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UNION OF INDIA REPRESENTED BY SECRETARY MINISTRY OF CORPORATE AFFAIRS ‘A’ WING, SHASTRI BHAWAN RAJENDRA PRASAD ROAD NEW DELHI-110001

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BAR COUNCIL OF INDIA REPRESENTED BY CHAIRMAN 21, ROUSE AVENUE INSTITUTIONAL AREA

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W.P.No.25577/2018

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NEAR BAL BHAWAN NEW DELHI-110002

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COMPETITION COMMISSION OF INDIA REPRESENTED BY CHAIRPERSON THE HINDUSTAN TIMES HOUSE 18-20, KASTURBA GANDHI MARG NEW DELHI-110001, INDIA

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COMPETITION APPELLATE TRIBUNAL (COMPAT) REPRESENTED BY CHAIRPERSON KOTA HOUSE ANNEXE, NO.1 SHAHJAHAN ROAD NEW DELHI-110011

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...RESPONDENTS

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(BY SRI UNNI KRISHNAN M, CGSC FOR R-1; SRI HARISH B N, ADVOCATE FOR R-3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT COMPETITION COMMISSION OF INDIA AND COMPETITION APPELLATE TRIBUNAL (COMPAT) TO DEBAR THE RETIRED OFFICIALS (INCLUDING VINOD DHAL AND K.K.SHARMA) FROM PRACTICING AS AN ADVOCATE DIRECTLY OR INDIRECTLY, INDIVIDUALLY OR THROUGH THEIR LAW FIRMS, IN SPIRIT OF PART-VI RULE 7 OF THE BAR COUNCIL OF INDIA RULES AND ETC.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:

W.P.No.25577/2018

ORDER

This petition has been filed, purportedly as a public interest litigation (PIL), while seeking the following reliefs:

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1. To Direct Competition Commission of India and Competition Appellate Tribunal (COMPAT) to debar the RETIRED OFFICIALS (including Vinod Dhal and K K Sharma) from practicing as an Advocate directly or indirectly, individually or through their law firms, in spirit of Part-VI Rule 7 of the Bar Council of India Rules;

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2. To Direct Bar Council of India to conduct an "suo moto" inquiry and Delete the Licence of Vinod Dhall and K K Sharma and other retired members of CCI for professional misconduct and bringing the profession into disrepute;

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3. To Direct Secretary, Ministry of Corporate Affairs to prohibit Vinod Dhall and K K Sharma and/or any other former/retired Member to practice before CCI (act/appear/plead) and/or represent any party in any way;

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4. To Direct Secretary Ministry of Corporate Affairs to take action in accordance with Sec 12 of Competition Act for removal of Chairperson and all Members of CCI in accordance with Sec 11(2)(d) and Sec 11(2)(e) and investigate the assets of each of the Members and the Chairperson and whether they are proportionate to their known sources of income;

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5. take such other steps as this Hon'ble Court may deem fit and proper to protect and preserve nobility of profession of law;

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6. allow the cost of petition to petitioner.”

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Having gone through the averments in the petition and the material placed on record, we have queried the petitioner, appearing in person, about his profession, to which the petitioner has pointed out, though not stated in the petition, that he is a practising Surgeon, serving in St.John’s Medical College, Koramangala, Bengaluru. The petitioner would submit that there are several illegalities and irregularities in the conduct of matters in the Competition Commission of India (‘the Commission’) and the Competition Appellate Tribunal (‘the Appellate Tribunal’), particularly by allowing the retired officials to practice before the Commission and the Appellate Tribunal.

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The material placed on record shows that the petitioner served notices dated 25.03.2018 to the Union of India, through its Secretary, Ministry of Law and Justice; to the Bar Council of India, through its Chairman; to the Competition Commission of India, through its Chairperson; and to the Competition

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Appellate Tribunal, through its Chairperson. The common features of the contents of such notices had been of the allegations against two persons named in the reliefs claimed viz., Sri Vinod Dhall and Sri K.K.Sharma for allegedly practising before the Commission and the Appellate Tribunal.

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It is also noticed that a reply to such a notice was sent on behalf of the Competition Commission of India on 22.05.2018, taking exception against the contents of the notice and while specifically maintaining that as per the reply received from Sri Vinod Dhall, he was neither appearing nor filing any vakalathnama before the Competition Commission of India; and that, the appearance of Sri K.K.Sharma was not in infringement of the Rules of the Bar Council of India.

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Significant it is to notice that in the said reply, it was also indicated that the notice attempts to re-agitate the identical issues that were raised in W.P.Nos.42223 and 43744/2017 before the High Court of Judicature at Hyderabad that was decided on 14.02.2018 and a copy of the order so passed by the High Court of Judicature at Hyderabad was enclosed with the said reply. However, such enclosure has not been

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annexed with the document filed as Annexure-B before us. The petitioner attempts to submit that he has not received any such copy; but there is no such averment in the petition.

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Going through the record, we have noticed another intriguing factor that even while seeking reliefs against the aforesaid two persons and making all the allegations against them, the petitioner has chosen not even to implead them as parties to this petition. In regard to this aspect, on being queried, the petitioner would submit that the main grievance is against the Competition Commission of India and the Competition Appellate Tribunal and the principal relief is also claimed against them. The petitioner seeks to further submit that appearance of the aforesaid persons before the Competition Commission and the Competition Appellate Tribunal is established by the orders passed by the Commission.

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The petitioner has also referred to the decision of the Hon’ble Supreme Court in the case of N.K.BAJPAI vs UNION OF INDIA AND ANOTHER; (2012)4 SCC 653 to submit that the person having connectivity with the particular Court/

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Tribunal/Authority, for having been an officer therein, is debarred from practicing before the same Court/Tribunal/ Authority.

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Having given thoughtful consideration to the submissions made and having examined the record, we are clearly of the view that the present petition is yet another example of the grossest abuse of the process of law, particularly by invoking the PIL jurisdiction of this Court wholly unnecessarily and in a rather questionable manner.

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On the core of the issues sought to be raised by the petitioner, suffice it to say as to whether any particular person is to be permitted to appear as an authorized representative or not, is essentially a matter for the Court/Tribunal/Authority concerned to examine; and we find no reason to accede the petitioner this liberty to raise the question on the appearance of any particular person before the Commission or the Appellate Tribunal and that too, by way of a PIL.

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Secondly, if at all there is any question as regards the conduct of an advocate as regards his appearance in any

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Forum, the same is required to be dealt with by the concerned State Bar Council and/or by the Bar Council of India in accordance with the applicable Rules. Therefore, we find hardly any reason to take up the matter for examination in PIL jurisdiction of this Court.

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Apart from the above, we find that despite sending the notices questioning the appearance of aforesaid Sri Vinod Dhall and Sri K.K.Sharma before the Competition Commission of India and the Competition Appellate Tribunal and despite seeking specific reliefs only against them, the petitioner has omitted to even implead them as parties to this petition.

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Upon our expressing serious reservations on the frame of petition and omission to implead necessary parties, the petitioner would submit that he may now be permitted to implead them as parties. We are afraid, such a prayer of the petitioner cannot be granted in the present case, particularly when it is noticed that the petitioner has consciously served several notices to different authorities and has consciously drafted the petition. It is difficult to infer that the omission to implead the necessary parties had only been an inadvertent

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mistake. On the contrary, in the given set of facts and overall circumstances, the inference, if any, could only be of a conscious omission to implead the said persons as parties to this petition.

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The petition, as framed and filed before this Court, has obviously left several things to be desired. This is apart from the fundamental fact that the issue, as sought to be raised, itself does not appear to be worth taking up in the PIL jurisdiction of this Court.

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It is also questionable that the petitioner has chosen not to annex the copy of the enclosure sent with the reply dated 22.05.2018 (Annexure-B). It was clearly pointed out in the reply that the identical issues were raised before the High Court of Judicature at Hyderabad in W.P.Nos.42223 and 43744/2017 that was decided on 14.02.2018. In the said reply, it was distinctly stated as under:

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“We, on behalf of our client, further state that it is palpable that the said legal notice re-agitates identical issues that were raised in Writ Petition Nos.42223 and 43744 of 2017. The Hon’ble High Court of Judicature at Hyderabad has passed a detailed judgment dated 14.02.2018 on these Writ Petitions. ( Copy of Judgment

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W.P.No.25577/2018

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dated 14.02.2018 enclosed). Petitioners of these Writs have appealed against the dismissal of these Writ Petitions before the Hon’ble High Court of Judicature at Hyderabad and the same is pending adjudication.

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For the reasons stated hereinabove, we on behalf of our client call upon you to withdraw your legal notice dated 25.03.2018 on receipt of present reply.

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A copy of the present reply has been retained in our office for the purpose of records.

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Enclosure:

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Judgment dated 14.02.2018 passed in Writ Petition Nos.42223 and 43744 of 2017 by Hon’ble High Court of Judicature at Hyderabad.”

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The petitioner’s submission that he has filed the documents as received does not inspire confidence because

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there is nothing stated in the petition that the said enclosure

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with the reply was not received by the petitioner.

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The decision in N.K.BAJPAI ’s case was rendered by the Hon’ble Supreme Court while dealing with the questions as regards the validity of Section 129(6) of the Customs Act, 1962, which stipulates that on demitting the office, the Members of the Customs, Excise and Service Tax Appellate Tribunal would not be entitled to appear before the said

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Tribunal and in that context, it was held that such restrictions cannot be said to be unreasonable and rather, they are intended to serve larger public interest and to uplift professional values and standards of advocacy, adding further to public confidence in the administration of justice.

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The said decision cannot be applied to the issue as sought to be raised in this petition. As to whether any particular person is subject to any particular restriction qua any particular Forum and as to whether he has violated any of the restrictions or not, are, obviously, the questions relating to certain basic facts; and, as indicated above, are required to be dealt in appropriate proceedings.

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For what has been observed and found hereinabove, it is but clear that by way of this petition, as framed and filed, the petitioner has unnecessarily approached this Court and that too, in a seriously questionable manner. From the reply dated 22.05.2018, as received by him, the petitioner was precisely made aware of the denial by the respondent Commission as also the denial by the persons against whom allegations were levelled. The petitioner was also made aware of the judgment

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delivered by the High Court of Judicature at Hyderabad on 14.02.2018. The petitioner, though has filed this PIL petition with several other annexures, but has chosen not to place before us the said order dated 14.02.2018. Although we are not persuaded to accept the submission that such copy was not received by the petitioner as enclosure with the reply dated 22.05.2018, but if these submissions are taken on their face value, the question still remains that the present PIL petitioner, by the very nature of the jurisdiction sought to be invoked, whether carried out necessary research before approaching the Court?

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For all the factors and circumstances noticed above, we are clearly of the view that the present one is yet another petition abusing the process of this Court in the PIL jurisdiction. The Hon’ble Supreme Court in the case of State of Uttaranchal v. Balwant Singh Chaufal and Others: (2010) 3 SCC 402 , with reference to several of the past decisions, and while reiterating that the PIL jurisdiction is required to be dealt with consciously and only for genuine public causes; and while issuing several directions to curb the unnecessary approach to

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the Constitutional Courts in the name of PIL so as to maintain the purity and sanctity of PIL jurisdiction, has observed, inter alia, as under :

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“143. Unfortunately, of late, it has been noticed that such an important jurisdiction which has been carefully carved out, created and nurtured with great care and caution by the courts, is being blatantly abused by filing some petitions with oblique motives. We think time has come when genuine and bona fide public interest litigation must be encouraged whereas frivolous public interest litigation should be discouraged. In our considered opinion, we have to protect and preserve this important jurisdiction in the larger interest of the people of this country but we must take effective steps to prevent and cure its abuse on the basis of monetary and non-monetary directions by the courts.

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144. In BALCO Employees' Union v. Union of India this Court recognized that there have been, in recent times, increasing instances of abuse of public interest litigation. Accordingly, the Court has devised a number of strategies to ensure that the attractive brand name of public interest litigation should not be allowed to be used for suspicious products of mischief. Firstly, the Supreme Court has limited standing in PIL to individuals "acting bona fide." Secondly, the Supreme Court has sanctioned the imposition of "exemplary costs" as a deterrent against frivolous and vexatious public interest litigations. Thirdly, the Supreme Court has instructed the High Courts to be more selective in entertaining the public interest litigations.

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145. In S.P. Gupta case this Court has found that this liberal standard makes it critical to limit standing to individuals "acting bona fide”. To avoid entertaining frivolous and vexatious petitions under the guise of PIL, the Court has excluded two groups of persons from obtaining standing in PIL petitions. First, the Supreme Court has rejected awarding standing to "meddlesome interlopers". Second, the Court has denied standing to interveners bringing public interest litigation for personal gain.

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146. In Chhetriya Pardushan Mukti Sangharsh Samiti the Court withheld standing from the applicant on grounds that the applicant brought the suit motivated by enmity between the parties.

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147. Thus, the Supreme Court has attempted to create a body of jurisprudence that accords broad enough standing to admit genuine PIL petitions, but nonetheless limits standing to thwart frivolous and vexations petitions. The Supreme Court broadly tried to curtail the frivolous public interest litigation petitions by two methodsone monetary and second, non-monetary.

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148. The first category of cases is that where the Court on the filing of frivolous public interest litigation petitions, dismissed the petitions with exemplary costs. In Neetu v. State of Punjab, the Court concluded that it is necessary to impose exemplary costs to ensure that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the courts.

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149. In S.P. Anand v. H.D. Deve Gowda the Court warned that (SCC p. 745, para 18) it is of utmost importance that those who invoke the jurisdiction of this Court “seeking a waiver of the

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locus standi rule must exercise restraint in moving the Court by not plunging in areas wherein they are not well-versed”.

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150. In Sanjeev Bhatnagar v. Union of India this Court went a step further by imposing a monetary penalty against an Advocate for filing a frivolous and vexatious PIL petition. The Court found that the petition was devoid of public interest, and instead labelled it as "publicity interest litigation". Thus, the Court dismissed the petition with costs of Rs.10,000.

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151. Similarly, in Dattaraj Nathuji Thaware v. State of Maharashtra the Supreme Court affirmed the High Court's monetary penalty against a member of the Bar for filing a frivolous and vexatious PIL petition. This Court found that the petition was nothing but a camouflage to foster personal dispute. Observing that no one should be permitted to bring disgrace to the noble profession, the Court concluded that the imposition of the penalty of Rs. 25,000 by the High Court was appropriate. Evidently, the Supreme Court has set clear precedent validating the imposition of monetary penalties against frivolous and vexatious PIL petitions, especially when filed by advocates.

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152. This Court, in the second category of cases, even passed harsher orders. In Charan Lal Sahu v. Zail Singh the Supreme Court observed that (SCC p. 400, para 17), "we would have been justified in passing a heavy order of costs against the two petitioners" for filing a "light-hearted and indifferent" PIL petition. However, to prevent "nipping in the bud a well-founded claim on a future occasion", the Court opted against imposing monetary costs on the petitioners. In that case, this Court concluded that the petition was careless, meaningless, clumsy and against

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public interest. Therefore, the Court ordered the Registry to initiate prosecution proceedings against the petitioner under the Contempt of Courts Act. Additionally, the court forbade the Registry from entertaining any future PIL petitions filed by the petitioner, who was an advocate in that case.

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153. In J. Jayalalitha v. Govt. of T.N. this court laid down that public interest litigation can be filed by any person challenging the misuse or improper use of any public property including the political party in power for the reason that interest of individuals cannot be placed above or preferred to a larger public interest.

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154. This court has been quite conscious that the forum of this court should not be abused by any one for personal gain or for any oblique motive. In BALCO this court held that the jurisdiction is being abused by unscrupulous persons for their personal gain. Therefore, the court must take care that the forum be not abused by any person for personal gain.

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155. In Dattaraj Nathuji Thaware this court expressed its anguish on misuse of the forum of the court under the garb of public interest litigation and observed (SCC p. 595, para 12) that the

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“[p]ublic interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest, an ugly private malice, vested interest and/or publicity-seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering social justice to the citizens. ... The court must not allow its process to be abused for oblique considerations...”

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156. In Thaware case the Court encouraged the imposition of a non-monetary penalty against a PIL petition filed by a member of the bar. The Court directed the Bar Councils and Bar Associations to ensure that no member of the Bar becomes party as petitioner or in aiding and/or abetting files frivolous petitions carrying the attractive brand name of Public Interest Litigation. This direction impels the Bar Councils and Bar Associations to disbar members found guilty of filing frivolous and vexatious PIL petitions.”

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Several of the features which are indicative of the questionable character of a petition, which is filed ostensibly as a PIL, but is not espousing any public cause are, obviously, available in the present petition. This petition could only be said to be an unwarranted and meddlesome interloping attempt and that too, while withholding certain relevant facts; while not even impleading the relevant persons as parties; and on a cause that is required to be taken up in different forum. Therefore, we are constrained to observe that this petition is required to be dismissed with exemplary costs.

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Accordingly, and in view of the above, this petition is dismissed with costs in the sum of �1,00,000/- (Rupees one lakh), to be deposited by the petitioner within 30 days from today with the Deputy Commissioner, Bengaluru. If this

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amount of costs is not deposited by the petitioner within 30 days from today, the Deputy Commissioner concerned shall ensure its recovery from the petitioner in accordance with law.

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On being deposited/recovered, the Deputy Commissioner concerned shall remit the amount aforesaid to the Karnataka State Legal Services Authority, who shall utilize the same for Victim Compensation Scheme cases.

Sd/-

CHIEF JUSTICE

Sd/JUDGE

bkv

Dr Savio Pereira v. Union of India

Case brief

What is this about?

What did the court decide?

Dr Savio Pereira v. Union of India

Case brief

What is this about?

What did the court decide?

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