Prescribed procedure must be followed

2015 (3) SCC 624

Para 22: Procedural norms, technicalities and processal law evolve after years of empirical experience, and to ignore them or give them short shrift inevitably defeats justice. ……..Laws of procedure have picturesquely been referred to as handmaidens to justice, but this does not mean that they can be wantonly ignored because, if so done, a miscarriage of justice inevitably and inexorably ensues. Statutory law and processal law are two sides of the judicial drachma, each being the obverse of the other. In the case in hand, had the Tenant diligently filed an appeal against the decree at least in respect of O.S. 5/78, the legal conundrum that has manifested itself and exhausted so much judicial time, would not have arisen at all.

2014 (2) SCC 401

Para 34: There is yet an uncontroverted legal principle that when the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same. In other words, where a statute requires to do a certain thing in a certain way, the thing must be done in that way and not contrary to it at all. Other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid settled legal proposition is based on a legal maxim "Expressio unius est exclusio alterius", meaning thereby that if a statute provides for a thing to be done in a particular way, then it has to be done in that manner and in no other manner and following any other course is not permissible.

In State of Uttar Pradesh V/s. Singhara Singh & Ors., AIR 1964 SC 358, this court held as under:

"8. The rule adopted in Taylor V/s. Taylor (1876) 1 Ch D 426 is well recognized and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted."

(See also: Accountant General, State of Madhya Pradesh V/s. S.K. Dubey & Anr., (2012) 4 SCC 578)

AIR 1999 SC 2378

Para 55: That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair;

2005 (1) SCC 625

Para 10: Where a particular mode is prescribed for doing an act and there is no impediment in adopting the procedure, the deviation to act in different manner which does not disclose any discernible principle which is reasonable itself shall be labelled as arbitrary. Every State action must be informed by reason and it follows that an act uninformed by reason is per se arbitrary.

2015 (3) SCC 605

Para 26: In our considered opinion, there lies a distinction between non- service of notice and a notice though served but with some kind of procedural irregularities in serving. In the case of former category of cases, all consequential action, if taken would be rendered bad in law once the fact of non-service is proved whereas in the case of later category of cases, the consequential action, if taken would be sustained. It is for the reason that in the case of former, since the notice was not served on the person concerned he was completely unaware of the proceedings which were held behind his back thereby rendering the action "illegal" whereas in the case of later, he was otherwise aware of the proceedings having received the notice though with procedural irregularity committed in making service of such notice on him. If a person has a knowledge of the action proposed in the notice, then the action taken thereon cannot be held as being bad in law by finding fault in the manner of effecting service unless he is able to show substantial prejudice caused to him due to procedural lapse in making service on him. It, however, depends upon individual case to case to find out the nature of procedural lapse complained of and the resultant prejudice caused. The case in hand falls in former category of case.

Para 27: In our considered opinion, therefore, it is mandatory on the part of the State to serve a proper notice to a person, who is liable to pay any kind of State's dues strictly in the manner prescribed in the Regulation. It is equally mandatory on the part of the State to give prior notice to the defaulter for recovery of dues before his properties (moveable or/and immoveable) are put to sale in the manner prescribed in the Regulation.

Procedure – where Statute lays down a procedure – has to be followed – CIC versus State of Manipur – 2012 (1) All MR 948 (SC) – Paras 35, 8, 11, 17, 20, 30, 31, 32, 42, 45, 36, 37

Gujrat Urja Vikas Nigam Ltd versus Essar Power Ltd – 2008 (4) SCC 755.

No one has a vested right in the procedural laws – Anant Gopal versus State of Bombay – AIR 1958 SC 915 – Para 4.

Shamlal Alias Kuldip versus Sanjeev Kumar – (2009) 12 SCC 454 – Para 22.

Rajesh Bhalchnadra Chalke versus State of Maharashtra – Para 31, 32 – Evidence.

Conflict of Statutory provisions and Bye laws – 2012 (2) All MR 910 – Para 22

2012 (2) All MR 656 – Paras 14, 16

Procedural and Substantive law

(2011) 6 SCC 321, Paras 16, 29, 31 to 37;

“Hearing by the Court” – Civil and Criminal

(2011) 6 SCC 321, Paras 39 to 42

Failure of Justice

AIR 1956 SC 116, Para 45

Where there is right there is remedy

(2009) 5 SCC 162, Para 47;

Rights of the parties should be determined on the basis of the rights existing on the date of the institution of the Suit or proceedings. Ye the Court is empowered to take into account subsequent events – (2004) 8 SCC 76, Para 16.

Presumption of Service by Regd Post – Section 114(f) of Evidence Act

(2011) 3 SCC 545, Paras 17, 19

Administering of Oath – Purpose of – (2012) 5 SCC 789, Paras 24, 26 to 30

Sandeep Jalan

Advocate

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