Law

Why Were Adani's Cases Listed and Heard by Justice Arun Mishra in a Tearing Hurry?

Cases with political overtones and far-reaching consequences for the nation have been systematically assigned to benches of “preference”.

The following is the text of a letter senior advocate Dushyant Dave has written to Chief Justice of India, Ranjan Gogoi, and all judges of the Supreme Court, on August 16, 2019. The Adani Group’s response to the letter has also been published below.

Respected Lordships,

1. On January 12, 2018, addressing a press conference, four honourable judges of the Supreme Court declared, “…administration of the Supreme Court is not in order and many things which are less than desirable have happened in the last few months…”.

In a seven-page letter addressed to the then Chief Justice of India, the justices had stated, “…It is too well settled in the jurisprudence of this country that the chief justice is only first amongst the equals – nothing more or nothing less”. The letter reads,

“It is with great anguish and concern that we have thought it proper to address this letter to you so as to highlight certain judicial orders passed by this court which has adversely affected the overall functioning of the justice delivering system…There have been instances where cases having far reaching consequences for the nation and the institution have been assigned by the Chief Justices of this court selectively to the benches ‘of their preference’ without any  rationale basis for such assignment. This must be guarded against at all costs.”

My Lord, the Chief Justice, even went to the extent of justifying the press conference and the letter by stating, “It is a discharge of debt to the nation which we have done.”

2) Unfortunately, far from an improved administration in the Supreme Court, the situation has worsened. Cases having far-reaching consequences for the nation and the institution, and cases involving political overtones, have been systematically assigned to the benches of “preference” without any rational basis for such assignment. Since October 2018, far from guarding against the same “at all costs”, the allocation of matters and constitution of benches have left a lot to be desired. It is not necessary to illustrate the list of such cases except to say that they are far too many.

3) But the Chief Justice of India surprised the entire legal fraternity when he constituted benches for the summer vacation for 2019 which included, besides himself, Honourable Justice Mr. Arun Mishra from amongst the senior-most of the judges. This was surprising because generally, if never, senior judges did not sit on vacation benches. Whatever, may have been the justification, it has resulted in shocking outcomes in a few matters heard during the summer vacation.

4) In one such matter, the bench comprising of Justice Arun Mishra and Justice M.R. Shah took up Civil Appeal No. 9023 of 2018 (Parsa Kenta Collieries Ltd. versus Rajasthan Rajya Vidyut Utpadan Nigam Ltd.) on May 21, 2019:

(i) Without the matter having been ordered to be heard during summer vacation by any regular bench,
(ii) Without there being any urgency in the matter whatsoever.

Parsa Kenta Collieries Ltd. is a part of the Adani Group.

The appeal arose out of SLP (C) No. 18586 of 2018 in which leave was granted only on August 24, 2018,  by a bench comprising of Justice Nariman and Justice Malhotra.

On April 8, 2019, a notice published by the registrar judicial (I) and (II), bearing No. F.05/Judl.I/2019, stated that during the summer vacation, regular hearing of matters will be taken up “as per guidelines and norms approved by the Hon’ble The Chief Justice of India”. By a circular of the additional registrar dated May 9, 2019, “cases which were to be listed during summer vacation 2019 as per directions of hon’ble court” was published.

Justice Arun Mishra. Photo: PTI

Surprisingly, this civil appeal was included at Serial No. 441 at the end, with a remark “in the month of May 2019”. Totally different from remarks in the rest of the matters. Now, it is unclear if this matter falls within “guidelines and norms approved by Hon’ble Chief Justice of India”. But one thing is clear, that it was not a matter which was directed to be listed during the summer vacation 2019 “as per directions of hon’ble court” as available on court record on the website.

In fact, an order dated March 14, 2019 of the registrar, R.K. Goel, shows the matter was not ready for hearing and was to be listed “before he hon’ble court as per rules”. So who ordered it to be listed and why is a very serious question. How was it listed on May 21, 2019 as Item No. 120 in the list issued on May 17, 2019 is another mystery.

Without any proper justification, the bench took up the matter on 21.05.2019 and passed the following order:

“Heard the arguments of Mr. Ranjit Kumar, Ld. Senior Counsel appearing for the appellant.

List tomorrow i.e. Wednesday, the 22nd May, 2019 for further arguments.”

On May 22, 2019, the court heard the matter and passed the following order:

“Heard Mr. Ranjit Kumar, learned senior counsel appearing on behalf of   the appellant and Mr. Tushar Mehta, learned Solicitor General appearing on behalf of the respondent.

Arguments concluded.

Judgment reserved.”

I am informed that other counsels appearing in the matter were neither informed, nor was their consent obtained for the same.

Did the bench inquire into its urgency? Seems not. Did the bench take up other matters for hearing which were older and urgent? Seems unclear.

Ultimately, by judgment and order pronounced on May 29, 2019, the civil appeal was partly allowed.

Also read: A Manifesto for Judicial Accountability in India

5) Again, on May 23, 2019, the same bench entertained mentioning of an early hearing application (I.A No. 83095) of 2019 in  C.A. No. 11133 of 2011 (M/s Adani Power (Mundra) Ltd. Versus Gujarat Electricity Regulatory Commission and Ors.) and the following order was passed:

List the main matter tomorrow i.e. 24.05.2019 for hearing”.

On May 24, 2019, the court passed the following order:

“Heard Mr. Gopal Jain, Ld. Senior Counsel appearing for the appellant and Mr. M.G. Ramachandran, learned Senior Counsel appearing for the respondent.

Hearing concluded.

Judgment reserved.”

The last time this matter came up for effective hearing was on February 1, 2017 before  Justice Chelameswar and Justice Sapre when it was adjourned with following order:

“As prayed for, list the matters next week”.

For some reasons, it was never listed thereafter, before any bench.

The application for early hearing should not have been therefore entertained during vacation, as it did not fall within the ambit of circulars dated April 29, 2019 bearing F.NO. 14/Jul./2019 and March 7, 2019 bearing F.No.4/Judl/2019 issued by the Secretary General.

I have been told by M.G. Ramachandran that request was made on behalf of the advocate-on-record for the respondent, not to take up the matter during vacation on May 23, 2019, on account of non-availability of the AOR as also the senior counsel briefed in the matter. Even on May 24, 2019, the junior advocate from the office of the AOR stood up to reiterate the request, although out of abundant caution, M.G. Ramachandran, senior advocate was briefed, but the bench did not pay any heed to the request made by the junior advocate and proceeded to hear the matter straightaway.

6) I am told that the total benefit to this corporate client from these two judgments will run into thousands of crores.

7) Clearly, hearing and disposal of these two appeals have been done in complete contravention of the settled practice of the Supreme Court as also its established procedure. Both these matters were listed, taken up and heard without any justification, and in a hurry and in an improper manner. As a result, besides causing grave injury to public interest and public revenue, it has caused immense damage to the image of the Supreme Court and the administration of justice.

It is disturbing that the Supreme Court of India should take up regular matters of a large corporate house during summer vacation in such a cavalier fashion and decide them in its favour. It raises very serious and disturbing questions as to whether the registry had sought concurrence from the Honourable Chief Justice for listing such matters and if not whether the registry became party to such listing in violation of it’s own practice and procedure. But most of all, why were the two matters listed before the bench presided by  Justice Arun Mishra when other benches were available during May 2019 vacation?

And why did this bench take up the same?

Also read: Why CJI Gogoi’s Proposal to Increase the Supreme Court’s Strength Is Misplaced

8) Surely, large corporate litigants are not entitled to justice for the asking.

9) It may not be out of place to mention that the same group’s two earlier matters have been allowed by judgments rendered by Justice Arun Mishra speaking for the court. On January 29, 2019, C.A. No. 1261 of 2019 (Adani Gas Limited & Anr. Versus Union of India), arising from SLP (C) No. 21986 of 2015 was decided. This Special Leave Petition first came up before the court on August 10, 2015 and after that it appeared before diverse benches on innumerable occasions between 2017 and 2018 and ultimately was listed before Justice Arun Mishra and Justice Navin Sinha on July 4, 2018, although coram members of the previous benches including Justice Abhay Manohar Sapre were available.

The roster of the work for cases published on July 2, 2018 discloses that “Appeals against orders of statutory bodies” (which the above matter was) were assigned to the bench of  Justice A.K. Sikri and the bench presided by Justice Arun Mishra did not have the subject category anywhere near the said matter.

So, how did the matter reach there is another serious question to be looked into.

10) On May 29, 2018, C.A. No 415 of 2007 (Tata Power Company Ltd. Versus Adani Electricity Mumbai Ltd.), was decided, dismissing appeals of Tata Power by directing that “the amount which is payable to Reliance Energy Ltd., deposited or secured by way of bank guarantee by TPC as per order dated 07.02.2007 along with interest lying with the registrar of this court as per agreement of the counsel for Reliance Energy Limited and Adani Electricity Mumbai Limited be paid to Adani Electricity Mumbai Limited”. Incidentally, it was only in August 2018 that Adani Limited had completed acquisition of Reliance Infra’s Power Business.

The Handbook of Practice and Procedure published by the Supreme Court shows that matters ought to have been listed before the available coram judge from previous benches. Why this practice was not followed is a mystery. Did the registry play foul in this regard?

11) My Lords, I am not in any manner commenting on the merits or otherwise of the judgments referred to above. Nor am I suggesting anything other than procedural violations which resulted in these matters being taken up by the benches presided by Justice Arun Mishra. To say the least, such listings appear to be extremely unjustified as per established practice and procedure followed by this honourable court. As a matter of fact, in SMW (C) No. 1 of 2019 (“In Re: Matter of Great Public Importance Touching upon the Independence of Judiciary), the bench presided by Justice Arun Mishra passed an order on April 24, 2019, observing;

“Considering the seriousness of the allegations as the system has absolutely no place for such fixers, we cannot leave the matter at that. It becomes our responsibility to keep this Institution clean as well as to ensure that the image of this Institution is not tarnished by such allegations to undertake the probe in the matter. ….”

What should a citizen make out of all these?

Also read: On Allegations Against CJI Gogoi, There Are Many Questions the SC Needs to Answer

12) In the past too, during the tenure of Chief Justice K.N. Singh, several matters of a corporate house were heard and decided by the bench presided by him in a questionable manner, giving relief to it. Following outcry from the bar and the then Attorney General, the then Chief Justice of India, H.J. Kania, acted swiftly and decisively to recall those judgments. This restored the image and reputation of the Supreme Court, besides serving the rule of law.

13) My Lords, being an officer of the court, I deem it my duty to draw your lordships’ attention to the above happenings. I do hope and trust that you would look into the matter and take corrective steps as deemed appropriate to protect this institution.

With respect,

Dushyant Dave
Senior Advocate
Supreme Court of India

DISCLAIMER: I must inform your Lordships that I have appeared as a lawyer for Adani group companies over the years including before Rajasthan high court in Parsa Kenta Collieries Ltd. versus Rajasthan Rajya Vidyut Utpadan Nigam Ltd.

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A spokesperson of the Adani Group responded to the letter with the following statement:

“The letter by Mr Dave has come to our notice. It is unfortunate that misconceived and malicious statements against the honourable apex court and our company are made without proper verification. The arbitration matter was in the list of vacation matters and came for hearing in normal course. It was as per the procedure prescribed for listing in vacation.

“It was prescribed that arbitration matters which require to be adjudicated expeditiously can be listed with consent of parties to the case – which was done. Mr Dave had in this matter himself appeared for us before Hon’ble Rajasthan high court. The power matter was listed pursuant to application for urgent hearing after due notice to the opposite side’s advocates.

“The insinuations made regarding the four matters of Adani group are wholly unwarranted.”