By N. C. Jain, Advocate
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The Word
The legal maxim ‘Actus Curiae Neminem Gravabit’
expresses the fundamental principle that Courts are to dispense justice and any
action of theirs, which is found erroneous or bad should not be allowed to
prejudice the interest of any party. Literally meaning that the act of the Court
shall prejudice nobody, it is a maxim founded upon justice and good sense and
affords a safe and certain guide for administration of law. The maxim operates
on principle of restitution by relegating the parties to the same position which
prevailed before the order causing the prejudice was passed.
2. The doctrine as explained by the Supreme Court in
Karnataka Rare Earth & Anr. v. The Sr. Geologist, Department of Mines and
Geology, (2004) 2 SCC 783 is not confined in its application to erroneous
acts only. The same is applicable to all such acts as to which it can be held
that the Court would not have so acted had it been correctly apprised of the
facts and the law. In the case before the Apex Court (supra), the mining
lease granted to the appellant was challenged in a public interest litigation
and the grant order was quashed by a Single Judge Bench of the Karnataka High
Court. The order of the Single Bench was confirmed by the Division Bench and
also by the Supreme Court. During pendency of appeal before the Supreme Court,
however, the lessees were permitted, by an interim order, to operate the
quarries and transport granite blocks after paying applicable royalty. The
lessee appellant as a result of the interim order, continued the work of
extraction and exported granite on 24-1-1996, which was after their appeal was
dismissed on 18-1-1996. The Department of Mines, by an order, demanded price of
blocks exported against which writ petition was filed by the lessees. The
lessees’ writ petition was dismissed by the High Court. In appeal, the Supreme
Court rejected the plea of absence of knowledge of the Supreme Courts’ order
dismissing the appeal. Lahoti J. speaking for the Court referred to the doctrine
of ‘Actus Curiae Neminem Gravabit’ and observed —
“When an act of the party, persuading the Court to pass an
order which at the end is held as not sustainable, has resulted in one party
gaining advantage which it would not have otherwise earned, or the other party
has suffered an impoverishment which it would not have suffered but for the
order of the Court and the act of such party, then the successful party
finally held entitled to a relief, assessable in terms of money at the end of
the litigation, is entitled to be compensated in the same manner in which the
parties would have been if the interim order of the Court would not have been
passed.”
The applicants were asked to pay the price of exported blocks
as demanded by the Department. For the purpose of the law, the Court observed,
it is enough that the appellants have enjoyed the benefit under the interim
order of the Court which has stood vacated with the dismissal of their appeal.
3. The maxim has also formed the basis for interpreting the
provisions of statutes. In Bharat Damodar Kale and Anr. v. State of A.P.,
(2003) 8 SCC 599, the issue for consideration was whether the limitation of one
year contained in Chapter XXXVI of the Code of Criminal Procedure is applicable
to the institution of prosecution or to the taking of cognizance by the Court.
Taking support form the maxim, the Court held,
“The legal phrase ‘Actus Curiae Neminem Gravabit’
which means an act of the Court shall prejudice no man, or by a delay on the
part of the Court neither party should suffer, also supports the view that the
Legislature could not have intended to put a period of limitation on the act
of the Court of taking cognizance of an offence so as to defeat the case of
the complainant.”
It was, accordingly, held that the limitation governs the
filing of complaint and the Court will not take cognizance if the complaint is
filed beyond the prescribed period of one year.
The above decision also makes it clear that taking of
cognizance is an act of the Court over which prosecuting agency or the
complainant has no control. In other words, failure to take action of such a
nature is an act of the Court and, if it causes prejudice, the maxim is
attracted.
4. The maxim is quite significant in view of the delays in
dispensation of justice, particularly in criminal matters. The following
observations of the Supreme Court of US in Parker v. Ellis, 362 US 574
(1960) are quite relevant in the context of delays on the part of the Courts in
rendering judgments :
“The rule established by the general concurrence of the
American and English Courts is, that where the delay in rendering a judgment
or a decree arises from the act of the Court, that is, where the delay has
been caused either for its convenience, or by the multiplicity or press of
business, either the intricacy of the questions involved, or of any other
cause not attributable to the laches of the parties, the judgment or the
decree may be entered retrospectively, as of a time when it should or might
have been entered up. In such cases, upon the maxim ‘Actus Curiae Neminem
Gravabit’ which has been well said to be founded in right and good sense,
and to afford a safe and certain guide for the administration of justice — it
is the duty of the Court to see that the parties shall not suffer by the
delay. A nunc protunc order should be granted or refused, as justice
may require in view of the circumstances of the particular case.”
5. In a recent case of Food Corporation of India and
Another v. SEIL Ltd. & Others, (2008) 3 SCC 440 where while ordering payment
to be made by the appellant for sugar supplied to the Central Government, the
Court omitted to give direction about payment of interest and such directions
were given in the review petition. The Supreme Court in appeal found nothing
wrong in it holding that “A clear error or omission on the part of the Court to
consider a justifiable claim on its part would be subject to review, amongst
others, on the principle of ‘Actus Curiae Neminem Gravabit’ (an act of
the court shall prejudice none)”.
6. The maxim applicable to the action of the Courts is equally applicable in administration of law. Being based on justice and good sense it provides safe guidance in legislative as well as administrative actions. In tax laws collection of taxes on the strength of erroneous order is required to be refunded with interest. Failure of authorities to pass assessment orders within the prescribed period of limitation prevents the authorities to complete the assessment resulting in no prejudice to the assessees. Provisions exist where the legislature has laid down periods for completion of proceedings or passing of orders, but legislature has desisted from providing for consequences which are adverse to the assessees in case of failure to take action or pass order within the period. For instance, S. 254(2A) expects the Income Tax Appellate Tribunal to decide appeals within a period of four years, S. 12AA(2) enjoins upon the Commissioner to pass order granting or refusing registration of trust/institution before the expiry of six months from the end of the month in which application was received, but failure to adhere to these time limits does not result in dismissal of appeal or the application.
7. One has, in this context, to consider the provision of S. 245HA(1)(iv) introduced vide Finance Act 2007 where under, an application allowed to be proceeded with by the Settlement Commission is to abate if the Commission fails to pass settlement order u/s.245D(4) within the time prescribed u/s. 245D(4A), irrespective of whether the failure to pass order is attributable to applicant or not. One may attempt to justify the provisions technically on the basis that the Settlement Commission, even though proceedings before it are judicial proceedings, is not a Court. But what constitutes guidance to the Courts in dispensation of justice should ideally not be ignored by the Legislature in making laws. In the spirit of the Supreme Court decision in Bharat Damodar Kale’s case (supra), passing or not passing an order over which the applicant has no control is an act of the Commission. In the Scheme of the Settlement mode of determining the tax liabilities, it will not be correct to say that abatement does not prejudice the interest of the applicant, particularly when the facts disclosed and additional income offered for tax is allowed to be utilised for framing assessment under the normal assessment mode.
