Common Cause v. Union Of India & Others

1. This is an application styled as one seeking "clarifications, reconsiderations and modifications" in the judgment dated 8-10-2003, Common Cause v. Union of India, (2003 (8) SCC 250 [LQ/SC/2003/1005] ) delivered by this Court.

2. We have heard the learned counsel for the applicant. We are satisfied that the application does not seek any clarifications. It is an application seeking in substance a review of the judgment. By disguising the application as one for "clarification", the attempt is to seek a hearing in the open court avoiding the procedure governing the review petitions which, as per the rules of this Court, are to be dealt with in chambers. Such an attempt on the part of the applicant has to be deprecated.

3. Learned counsel for the petitioner has invited our attention to the following observation contained in the opinion of the third Judge in the High Court:

"Before parting, I would like to mention something which has troubled me a bit. S.1(3) of the is not in force. On what authority can the Central Government issue notification under S.1(3) of the"

4. We do not think that the abovesaid is a finding recorded by the learned Judge. Be that as it may, this was not a point argued before the Court when the civil appeal was taken up for hearing. A point not argued will be deemed to have been given up and cannot be permitted to be raised now by filing of such a petition.

5. Another submission made by the learned counsel for the applicant is that this Court can issue a writ of mandamus directing the Union of India to issue notification for enforcement of an enactment already passed by Parliament. For this purpose, reliance is placed on the dissenting opinion contained in Para.111 and 112 of a Constitution Bench decision of this Court in A.K. Roy v. Union of India, (1982 (1) SCC 271 [LQ/SC/1981/462] : 1982 SCC (Cri) 152). The view taken by the minority cannot be cited as the law laid down by the Constitution Bench nor can it be followed in the face of the opinion of the majority to the contrary.

6. Reliance is also placed on the observations contained in Para.5 of Supreme Court Legal Aid Committee v. Union of India, (1998 (5) SCC 762 [LQ/SC/1997/1540] ). Such observations, or simply what was done in a given case, without laying down the law cannot be read as a ratio of the judgment and certainly not as a precedent. Whether a writ of mandamus of the nature which was prayed for before the Court can be issued or not - was not a point argued and decided by the Court.

7. The applications are wholly devoid of any merit and are therefore dismissed.