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CASE NO.: Appeal (civil)  6707 of 1999

PETITIONER: Tarak Singh & Anr.                                    

RESPONDENT: Jyoti Basu & Ors.                                            

DATE OF JUDGMENT: 19/11/2004

BENCH: S.N. VARIAVA & H.K. SEMA

JUDGMENT: J U D G M E N T

WITH

WRIT PETITION ( C ) NO. 216 OF 1999

Dipak K. Ghosh                                                     

Versus

State of West Bengal & Ors.                  

SEMA,J.

PREFACE

1.      "My son, do not forget my law, but let your heart keep my  commands.  Let not justice and truth forsake you, bind them  around  your neck, write them on the tablet of your heart."  

2.      Writ Petition No. 216/1999 has been filed by a public spirited  person in the form of Public Interest Litigation (PIL) inter-alia  challenging the allotment of Government land in Salt Lake City,  Calcutta from the discretionary quota of the Chief Minister.  A writ  in the nature of mandamus was specifically prayed for quashing of  the allotments of Government Land, stated to be made  unconstitutionally, illegally, arbitrarily, whimsically, capriciously  with malafide motive and in clandestine manner and/or in colourable  and arrogant exercise of power, being violative of Article 14 of the  Constitution.   3.      In the original petition, the allottees of the land were not  arrayed as party respondents.  I.A. No. 2 was filed for impleadment  of respondent Nos. 8 to 38.  However, by our order dated  13.11.2003, we allowed only the impleadment of respondent No. 24  \026 Justice B.P. Banerjee as party respondent.  The order reads:  "Mr. A.K. Ganguli, learned senior counsel  started his arguments at 10.35 A.M. and  concluded at 11.15 A.M.  

Application to join Justice B.P. Banerjee (retired)  as a party respondent to the Writ Petition is  allowed.  Reply, if any, be filed within six weeks  from the date of service.  I.A. No. 2 stands  disposed of with no further or other order.  

The High Court of Calcutta to forward to this  Court papers and proceedings in CO No.

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7553(W) of 1986 titled Bidhannagar (Salt Lake)  Welfare Association and Ors. Vs. State of West  Bengal and Others including all order sheets.   The High Court to also inform this Court whether  CO No. 15381 of 1984 has been disposed of and  if not at what stage it is.  The Government to  produce all relevant files pertaining to the  allotment of a plot to Justice B.P. Banerjee  (retired) and to state on affidavit whether there is  any policy decision regarding allotment of plots  to Judges, if so, to produce that policy decision.   

List these matters after eight weeks"

4.          Pursuant to the aforesaid order, respondent No. 24 filed two  counter affidavits \026 first affidavit on 16th January, 2004 and  supplementary affidavit on 16th April, 2004, which we shall be  dealing with at an appropriate time. 5.    The documents produced and the order passed thereunder would  clearly establish an unholy nexus between duty and interest. 6.      C.O. No. 7553(W)  of 1986 titled Bidhannagar (Salt Lake)  Welfare Association & Ors. Vs. State of West Bengal and Ors. was  listed before Justice B.P. Banerjee on 20.6.1986, when he passed the  following order:  "Let the affidavit in opposition be filed within  two weeks from date; reply thereto, if any one  week thereafter.  Let this matter come up for  hearing four weeks hence.  Until for the orders  there will be an order to the extent that if any  allotment is made on the basis of the deviation  made from the Master Plan the same shall abide  by the result of the application."

7.      On the same day, i.e. on 20.6.1986, Justice Banerjee made an  application before the Chief Minister for allotment of a plot of land  in Salt Lake City.  It is not clear whether the application was made  before he took cognizance of the matter or after.  If made before he  should have recused himself from the case.  If he dealt with the  matter first he should not have made the application.  But, instead,  the learned Judge kept the matter with him, pursued it and passed  subsequent orders till the allotment order was made in his favour  from the discretionary quota of the Chief Minister and even  thereafter.   On 8.6.1987  following order was passed: "Let the main matters appear in the list as for  orders on Thursday next at 3 p.m.  In the  meantime there will be an interim order as  follows:

No further allotment of any land in the Salt Lake  City Area will be made without the leave of this  Court.  

Petitioners are directed to serve a copy of the writ  appeal along with the copy of the above  application and a plain copy of this order upon  the Learned Advocate General forthwith.  

Let a plain copy of this order, duly counter  signed by an Officer of this Court be given to the  Learned Advocate for the parties."

On 11.6.1987 following order was passed: "Let the main writ application come up for  hearing on June 17, 1987 at 2 p.m.  In the

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meantime the interim order passed on June 8,  1987 is varied to the extent that the said order  will not prevent the Chief Minister to make  allotment of plot in Salt Lake City Area from its  own Quota according to his own discretion.  

Let the plain copy of this order duly  countersigned by an Officer of this Court be  given to the Learned Advocates for the parties  appearing."

On 17.6. 1987 following order was passed. "Let the application for taking additional ground  and acceptance of additional evidence filed in  Court today be kept in record.  Let the affidavit  in opposition, if any, to the said application  affirmed by Sudhir Chandra De on June 16,  1987, if any, be filed within three weeks from  date, reply if any, one week thereafter and let the  application come up for hearing on July 16, 1987  at 2 p.m."                            (emphasis supplied)

8.     No hearing had taken place on 16.7.1987 as ordered.  No order  was also passed in the order sheet, on the other hand Justice B.P.  Banerjee again wrote a letter to the Chief Minister.  The letter dated  16th July, 1987 is reproduced in extenso:-

"Hon’ble Mr. Justice Bhagabati Prasad Banerjee                                 Dated the 16th July, 1987 To Shri Jyoti Basu Hon’ble Chief Minister Of the State of West Bengal Writers’ Building,  Calcutta

Dear Sir,

       This is to inform you that I have no landed  property in the State of West Bengal or  elsewhere and I am in dirth of accommodation.  I  have not applied for allotment of any land as yet.   I shall be happy if you kindly allot me a suitable  plot of land measuring about 4 to 5 cottahs in  Salt Lake City from the reserved quota under  your disposal.

       Thanking you,                                         Yours faithfully,                                                 Sd/-                         Bhagabati Prasad Mukherjee

C.C. Mr. Naranaryan Gupta Bar-at-Law Advocate General State of West Bengal"

                                        9.     It will be noticed that the deponent has not referred to his  application dated 16th July, 1987 addressed to the Chief Minister in

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his first counter affidavit.  He has sought to explain this in his  supplementary affidavit that his omission to mention about his  application of 16.7.86 (it is dated 16.7.87) in his earlier affidavits is  bonafide as he did not have a copy of the application in his file.   Such a defence from a person, no other than the Judge of the High  Court, is unacceptable.  Learned Judge would remember the petition  filed by him on 20.6.86 but not 16th July, 1987.  Be that as it may,  the letter dated 16th July, 1987, which is available on record sent by  the Government in file No. SL(AL)/SP-1049/87, is admitted.  This  letter has great significance.  It was followed by an order of  allotment passed by the Chief Minister on 24.7.1987, in favour of  Justice B.P. Banerjee.     10.     Pursuant to our order dated 13.11.2003 and subsequent orders,  the High Court has furnished the necessary informations, including  the Cause Lists pertaining to CO No. 7553(W) of 1986.  It is  revealed from the Cause Lists and the record, submitted by the High  Court, that the case was listed before Justice B.P. Banerjee after  16.7.1987 on 20.7.1987, 22.7.1987, 23.7.1987, 24.7.1987,  27.7.1987, 28.7.1987, 29.7.1987, 30.7.1987, 11.8.1987, 21.8.1987,  24.8.1987, 25.8.1987, 26.8.1987 and 27.8.1987.   The High Court  further clarified that on all these dates the matter was listed before  Court No. 9, which was presided over by Justice B.P. Banerjee and  it was kept as part-heard.  The High Court record also disclosed that  the matter was kept part-heard throughout till the Judge retired in  1998.     11.     Curiously enough, on 24.7.1987, the Chief Minister passed an  order allotting a plot of land in favour of Justice B.P. Banerjee from  his discretionary quota in Salt Lake City, in which the name of  Justice Banerjee appeared at Sl. No. 1,  and on the same day also the  matter was listed before Justice Banerjee.  Formal allotment of plot  of land bearing No. FD-429 measuring 4 Cottahs in Salt Lake City,  Calcutta was made on 16.10.1987 and till his retirement in 1998, the  matter was kept by Justice B.P. Banerjee.   12.     The facts, as recited aforesaid, speak for themselves.  The  facts speak volumes that the learned Judge has misused his judicial  function as liveries to obtain personal interest is clearly discernable. 13.     We will now proceed to deal with the counter filed by  respondent no. 24 \026 Justice Banerjee.  As already noticed,  respondent no. 24 filed two counter affidavits \026 first affidavit on 16th  January, 2004 and supplementary affidavit on 16th April, 2004.  The  defence of respondent No. 24 is detailed in paragraph 9 of the  counter affidavit filed on 16.1.2004.  To appreciate the controversy  in proper perspective, paragraph 9 of the counter affidavit is quoted  in extenso: "It is submitted that there was no nexus between  the orders dated 8.6.87 and 11.6.87 and the  allotment made in favour of this deponent on  14.10.87.  It was merely an accident or a mere  coincidence that the allotment was made by the  Government after the order dated 11.6.1987.   This deponent had been making his  representations much earlier, one year earlier to  the Central Government through the Ministry of  Law requested the Chief Minister to take  necessary steps to solve the residential problem  of this deponent.  This deponent was not aware  that my allotment of plot was made first after the  order dated 11.6.87 and as alleged by the  applicant.  It is reported that a large number of  allotments were made at about the same time.   There had been allotments of hundreds of plots  under the discretionary quota for special  allotment of plot both prior to 11.6.87 and  subsequent thereto.  However, for the reasons  best known to the petitioner, the Writ petitioner

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has challenged only the allotments made after  11.6.87 leaving aside hundreds of allotments  made under the same quota and in the same  fashion prior to 11.6.87.  The State Government  had already given out that Judges of the High  Court were recognized class of persons who were  allotted plots of the Salt Lake involving the  discretionary quota from 1981.  This deponent  accepted the allotment as other High Court and  Supreme Court Judges had already been allotted  plots on similar reasons all of them had applied  for and accepted allotments of plots in their  favour.  All the Judges have constructed their  houses like this deponent and are living there."

14.     The fallacy of the defence is that there was no nexus between  the order dated 8.6.1987, 11.6.1987 and the allotment made in  favour of respondent No. 24 on 14.10.1987 (actually it is  16.10.1987).  It  can never be and could not be termed as  coincidence.  The matter was pending before the learned Judge upto  27.7.1987, as disclosed from the Cause Lists sent by the High Court.    As noticed above, he has not mentioned his letter dated 16.7.1987,  addressed to the Chief Minister.  The Chief Minister passed an order  on 24.7.1987 allotting a plot in favour of Justice B.P. Banerjee, on  which date also the matter was pending before him.  He has not  explained this.   The matter was listed before  him on 16.7.1987 but  no order was passed on this date, instead he had written a letter to  the Chief Minister for allotment of plot of land and the order was  passed by the Chief Minister in his favour on 24.7.1987.  Therefore,  by no stretch of imagination it can be termed as coincidence.  There  is undoubtedly an unholy nexus in between the passing of the  judicial order and granting order of allotment.   15.     In the supplementary affidavit filed on 16.4.2004, respondent  No. 24 has stated that writ petition being CO No. 7553(W) of 1986  was never kept by him as part-heard.  Paragraphs 9.1 and 9.2 of the  counter affidavit are reproduced:  "9.1    The deponent never kept the Writ Petition  being C.O. No. 7553(W) of 1986 as part  heard, so that the matter could not be taken  up by any other Court.  The Ld. Single  Judge in the case of Tarak Singh V/s. Jyoti  Basu has erroneously recorded the  submission of the counsel for Mr. Tarak  Singh, that the deponent had kept the  matter part heard.  The said submission is  contrary to the facts as also the records of  the case.   9.2     It is submitted that when C.O. No.  7553(W) of 1986 came up for hearing on  17.6.1987, the matter was adjourned since  Misc. Applications were moved for taking  additional Grounds and additional  evidences.  The deponent issued directions  for filing affidavits as usual and listed the  said applications for hearing on 16.7.1987.   However, the said matter did not come up  for hearing on the same date or thereafter."  (Emphasis supplied)

16.     Undoubtedly, the averments in the aforesaid two paragraphs  are contrary to the Report sent by the High Court, as referred above.   The deponent admitted that the matter was listed for hearing on  16.7.1987.  His averments, that the matter did not come up for

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hearing on the same date or thereafter, are false to the knowledge of  the deponent.  Learned counsel for the petitioner, therefore, urged  that the false affidavit, filed by respondent No. 24, clearly amounts  to criminal contempt.  We may not pursue this contention of the  learned counsel for the petitioner further, in view of the order that  we propose to pass.  We, however, agree with the learned counsel  for the petitioner that the averments made in paragraphs 9.1 and 9.2  are contrary to the record produced by the High Court.   17.     In the aforesaid circumstances, Mr. A.K. Ganguli, learned  Senior counsel appearing for respondent No. 24, submitted that CO  No. 7553(W) of 1986 which was listed for hearing before  respondent No. 24 on 20.6.1986 was not concerned with the  allotment of land under the discretionary quota of the Govt./ Chief  Minister.  It was in regard to violation of the Master Plan and  therefore, there was no nexus between the order passed by the  learned Judge and the allotment made in his favour.   18.     We are unable to countenance with the submission of Mr.  Ganguli.  In the first place, the application for injunction arising out  of CO No. 7553(W) of 1986 was in respect of illegal, clandestine  purported allotment of plots in Salt Lake.  All the more reasons, the  conduct of the learned Judge becomes more murkier when on the  same date he applied for a plot of land in the Salt Lake City and    injuncted further allotment of any land in the Salt Lake City by an  order dated 8.6.1987 but by subsequent order dated 11.6.1987  allowed the Chief Minister to make allotment of plot in Salt Lake  City Area  from its own Quota according to his own discretion.   19.     Mr. Ganguli further argued that no order/ proceeding, sent by  the High Court, would indicate that the matter was taken up for  hearing on 17.6.1987 and the order sheet dated 17.6.1987 does not  show any direction to keep the matter as part-heard.  This  submission is also contrary to the records, namely, the Cause Lists  sent by the High Court.  The matter was ordered to be listed for  hearing on 16.7.1987 was admitted by him.  However, no order was  passed on that day for the reasons best known to the learned Judge.   The Cause Lists, submitted by the High Court, would show that  from 20.7.1987 till 27.8.1987, it was kept part-heard and the file of  the case was kept with respondent No. 24, till he retired in 1998.  20.     It is also contended by Mr. Ganguli that a large number of  Judges of High Court and Supreme Court have also been allotted  plots in Salt Lake City under the discretionary quota of the Chief  Minister and it will be unfair to single out respondent No. 24 for  meting out a different treatment.  At the time of hearing of this writ  petition, we requested the learned Senior counsel to inform us  whether any other Judge or Judges obtained the allotment order from  the discretionary quota of the Chief Minister by compromising his  judicial duties, we would also proceed against such allottee.  He,  however, was unable to receive any instructions in this behalf.  It is  trite, unequals cannot be treated equally.   21.     It must be grasped that judicial discipline \026 is self discipline.   The responsibility is self responsibility.  Judicial discipline is an  inbuilt mechanism inherent in the system itself.  Because of the  position that we occupied and  the enormous power we wield,  no  other authority can impose a discipline on us.  All the more reasons   Judges exercise self discipline of high standards.  The character of a  Judge is being tested by the power he wields.  Abraham Lincoln   once said,  "Nearly all  men can stand adversity,  but if you want to  test a man’s character give him power".  Justice delivery system like  any other system in every walk of life will fail and crumble down, in  the absence of integrity.  22.     Again, like any other organ of the State, judiciary is also  manned by human beings \026 but the function of judiciary is distinctly  different from other organs of the State \026 in the sense its function is  divine.  Today, judiciary is the repository  of public faith.  It is the  trustee of the people.  It is the last hope of the people.  After every  knock at all the doors failed people approach the judiciary as the last

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resort.  It is the only temple worshipped by every citizen of this  nation, regardless of religion, caste, sex or place of birth.  Because  of the power he wields, a Judge is being judged with more stricter  than others.   Integrity is the hall-mark of judicial discipline, apart  from others.  It is high time the judiciary must take utmost care to  see that temple of justice do not crack from inside, which will lead  to catastrophe in the justice delivery system resulting in the failure  of Public Confidence in  the system.  We must remember that  woodpeckers inside pose a larger threat than the storm outside.   23.     Since the issue involves in the present controversy will have  far reaching impact on the quality of judiciary, we are tempted to put  it on record which we thought it to be a good guidance to achieve  the purity of Administration of Justice.  Every human being has his  own ambition in life.  To have an ambition is virtue.  Generally  speaking, it is a cherished desire to achieve something in life.  There  is nothing wrong in a Judge to have ambition to achieve something,  but if the ambition to achieve is likely to cause compromise with his  divine judicial duty, better not to pursue it.  Because if a judge is too  ambitious to achieve something materially, he  becomes timid.   When he becomes timid there will be tendency to compromise  between his divine duty and  his personal interest.  There will be  conflict in between interest and duty.  This is what exactly has  happened in this case.  With due respect to the learned Judge, Justice  B.P. Banerjee, he has mis-used his divine judicial duty as liveries to  accomplish his personal ends.  He has betrayed the trust reposed in  him by the people.  To say the least, this is bad.  The matter could  have been different if the learned Judge got allotment from the Chief  Minister’s quota simpliciter like any other citizen.  24.     In the back-drop of the facts and circumstances, as recited  above, we are of the view that the conduct of the learned Judge is  beyond condonable limits.  We are aware that the order,  we propose  to pass, no doubt is painful, but we have to perform a painful duty to  instill public confidence in the Judiciary.  It is a case where a private  interest is pitted against a public interest.  It is now well-settled  principle of law that in such cases the latter must prevail over the  former.  Consequently, the order dated 24.7.1987 passed by the  Chief Minister and the formal allotment order dated 16.10.1987  allotting plot No. FD 429 measuring 4 Cottahs in Salt Lake City in  favour of respondent No. 24 \026 Justice B.P. Banerjee are hereby  quashed and cancelled.  The plot shall stand vested with the  Government.   25.     In the course of hearing of this petition we had requested the  learned Senior counsel, appearing for respondent No. 24, to let us  know the expenditure incurred by respondent No. 24 in constructing  the house over the said plot of land.  Mr. Ganguli has filed the  expenditure statement.  The details of the expenditure submitted are  as follows:          "Cost of the land paid on 16.11.1987            Rs.   41,006.10         Cost of Construction upto 1994                  Rs. 7,65,228.61         Total                                                   Rs.    8,06,234.71         Annual value of the Building Qtr.3/92           Rs.        8,097.00         Onwards (determined by Bidhannagar          Municipality formerly Bidhannagar         Notified Area Authority)                                                 Municipal Tax (quarterly)                       Rs.          432.00"

26.     The question now to be considered is with regard to the price  of the house on the plot of land.  We give the following directions: (i.)    The Government may appoint a Govt. Valuer and after  assessing the cost of construction, at the prevailing rate  at the time of construction, (cost of land will not be  included), offer the said price to respondent No. 24 and  the Govt. may take over the building.  In this event the  Government should give to respondent No. 24 one  year’s time to vacate, provided  respondent No. 24 and

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all family members and persons residing in the  bungalow file an undertaking in this Court within 8  weeks from today, that they will hand over to the  Government vacant and peaceful possession at the end  of one year.  (ii.)   Alternatively, if respondent No. 24 feels that he should  receive the prevalent market value for the bungalow, he  may so intimate the Government.   The Government  may then put the house along with the land for public  auction by advertising the same in two national dailies  and one local daily, if any, widely circulated in the area  and offer to sell the house to the highest bidder.  (iii.)  In the case, as in clause (ii.), there would be two  separate bids \026 one for the house and the other for the  land.  In respect of the house the reserve price should be  fixed which shall not be less than the market value of a  bungalow of this type at present rates.  Such valuation  to be fixed by the Government Valuer.   The value to be  based on vacant possession being delivered to the  purchaser.    (iv.)   The price of the house fetched in the auction sale be  paid to Justice B.P. Banerjee and he must within a week  of receipt of the price hand over vacant and peaceful  possession to the purchaser.  If not delivered, the  Government to ensure eviction and delivery of  possession to the purchaser.     (v.)    The process of the aforesaid directions shall be  completed within six months from the date of receipt of  this order.   (vi.)   The Chief Secretary of the Government of West Bengal  shall send the compliance report within the period  stipulated.   (vii.)  We clarify that respondent No. 24 or his relations shall  not be allowed to bid in the auction sale.   27.     The net result is that the Writ Petition No. 216/1999 against  respondent No. 24 is allowed and is dismissed qua other  respondents.  C.A. No. 6707/1999 is dismissed.   Rule is discharged.   28.     We clarify that dismissal of the Writ Petition against other  respondents should not be misunderstood as approval of the policy  decision of the Government with regard to the allotment of land by  the Chief Minister from his discretionary quota.          Parties are asked to bear their own costs.