Rectification Of Mistake - What is a 'mistake apparent from the record'?
Once you lose a case in the Tribunal, it is very difficult to succeed in the higher courts – so normally another attempt is made to find a mistake apparent on records and file a ROM with the Tribunal. Normally Tribunals don't allow a review in the guise of ROM but what is a ‘mistake apparent from the record'?
Today we bring you a landmark judgement of the Supreme Court delivered just yesterday, on this issue.
Here are some worthy quotes from the Apex Court.
It is very difficult to define an "error apparent on the face of the record" precisely, scientifically and with certainty.
It may therefore be taken as settled that a writ of certiorari could be issued to correct an error of law. But it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record.
The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record?
An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record.
A patent, manifest and self-evident error which does not require elaborate discussion of evidence or argument to establish it, can be said to be an error apparent on the face of the record and can be corrected while exercising certiorari jurisdiction.
An error cannot be said to be apparent on the face of the record if one has to travel beyond the record to see whether the judgment is correct or not.
An error apparent on the face of the record means an error which strikes on mere looking and does not need long- drawn-out process of reasoning on points where there may conceivably be two opinions.
Such error should not require any extraneous matter to show its incorrectness. To put it differently, it should be so manifest and clear that no Court would permit it to remain on record.
If the view accepted by the Court in the original judgment is one of the possible views, the case cannot be said to be covered by an error apparent on the face of the record.
Not following High Court or Supreme Court – Error apparent? The Blackstonian theory - Judges do not make law, they only discover or find the correct law.
Can non-consideration of a decision of Jurisdictional Court or of the Supreme Court be said to be a "mistake apparent from the record"?
It is well settled that a judicial decision acts retrospectively.
According to Blackstonian theory, it is not the function of the Court to pronounce a `new rule' but to maintain and expound the `old one'. In other words, Judges do not make law; they only discover or find the correct law. The law has always been the same.
If a subsequent decision alters the earlier one, it (the later decision) does not make new law. It only discovers the correct principle of law which has to be applied retrospectively.
To put it differently, even where an earlier decision of the Court operated for quite some time, the decision rendered later on would have retrospective effect clarifying the legal position which was earlier not correctly understood.
"The theory of case law is that a judge does not make law; he merely declares it; and the overruling of a previous decision is a declaration that the supposed rule never was law. Hence any intermediate transactions made on the strength of the supposed rule are governed by the law established in the overruling decision. The overruling is retrospective, except as regards matters that are res judicata or accounts that have been settled in the meantime".
"The past cannot always be erased by a new judicial declaration". It may, however, be stated that this is an exception to the general rule of the doctrine of precedent.
This Blackstonian theory was aplied by the CESTAT in a case before it. In Commissioner of Customs, Mumbai Vs. Bharat Forge Limited [2002-TIOL-XXX-CESTAT-MUM] the Tribunal held that if the Supreme Court has opined on a meaning of a provision, then any contrary decision given by any other authority lower to this must be held to be erroneous and such error must be treated as error apparent on the record. In this case the Tribunal following a decision of the Supreme Court in Tamilnadu Newsprint & Papers Ltd Vs Appraiser [] held that benefit of project import cannot be availed if the importer has already claimed the benefit of another Notification.
Rectification of an order stems from the fundamental principle that justice is above all.
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