Joydeep Mukharjee Vs State
of West Bengal & Ors.
ORDER
Petitioner, who
claims to be a public spirited person from the State of West Bengal and a
member of the All India Legal Aid Forum, which is an organisation stated to be
working for upliftment of the downtrodden, has filed the present Public
Interest Litigation claiming the following relief:
1.
allow
this writ petition and appoint a committee functioning under direct supervision
of the court to scrutinize all the cases of discretionary allotments after
due notice to the allottees and based upon this committee's report issue a
writ of and/or direction in the nature of mandamus quashing all the allotments
of Government lands in Salt Lake City made unconstitutionally, illegally, arbitrarily,
whimsically, capriciously with mala fide motive and in clandestine manner in
colourable and arrogant exercise of so-called "Discretionary Power" by
the respondent; and
2.
pass
an order directing the Calcutta High Court to send the case record of CO
No.7553(W) of 1986, Bidhannagar (Salt Lake) Welfare Association vs. State of
West Bengal to furnish the same to this Hon'ble Court with notice to the
petitioner therein and to hear and dispose of the said CO No.7553(W) of 1986 on
its merit after setting aside the order dated 2.9.2003.
3.
direct
the respondents herein to produce the Master Plan as originally framed from the
original records of the Salt Lake City.
4.
impose
exemplary damages of substantially high amount on the respondent No.2 to 6 to
set a deterrent example and also to compensate the public exchequer for the
loss caused to the general public for reasons of discretionary allotment of
valuable plots by the Respondents to suit their personal, political, nepotistic
and financial ends; and
5.
pass
any other order further order/s as this Hon'ble Court may deem fit and proper."
Above prayers are claimed on the averment that even after pronouncement of
judgment of this Court in Dipak K. Ghosh v. State of West Bengal [(2006) 3 SCC
765], there has been violation of the original Master Plan of the Salt Lake
City against which several demonstrations were taken out. The petitioner also
submits that the issues raised in Writ Petition No. 7553 filed in the Calcutta
High Court have not been settled by that Court or even by this Court. In his submissions,
these issues require consideration being questions of great importance. According
to the petitioner, the Salt Lake City was the result of dream of the late Chief
Minister Dr. B.C. Roy of establishing a new township for the lower and middle income
groups on the eastern side of Calcutta (now Kolkata) and the land to be used
for that purpose was the reclaimed land of the Salt Lake. In the year 1967, a
Master Plan was prepared under the Government instructions and the Government
was expected to develop the area in accordance with that Master Plan which had,
inter alia, made the following provisions:
a. " 60% plots are
earmarked as residential plots.
b. Separate drainage and
sewerage system.
c. Open space to the
tune of 12%
d. Location of
commercial plots in one zone.
e. Location of few shop
allowable plots meant to cater to the local needs of each residential plots.
f. Roads on different
types.
g. Open space and other
amenities such as Park.
h. Separate area to
reserve for co-operative or different organisations like CMDA Union
Government
Departments, Administrative building local centers, play ground, education
institutions and also suitable allocation of Parks in each block."
The development scheme
contained various restrictions regarding user of plots, construction of
buildings, transfer and/or partition of plots and buildings. The West Bengal
Government Township (Extension of Civic Amenities) Ordinance, 1975, was
promulgated to provide for an extension of civic amenities of Government
Township in West Bengal and for the matters connected therewith and incidental
thereto. This Ordinance was replaced by the West Bengal Government Township(Extension
of Civic Amenities) Act, 1975 (hereinafter referred to as` the Act'). Section
2(b) of the Act enumerated different civic amenities like drainage, sewerage,
sanitation, roads, maintenance, public health, parks etc. Till about 1977, according
to the petitioner, there was great transparency in functioning of the
Administrator, appointed under Section 4 of the Act, who was responsible for
implementation of the provisions of the Act and except 500 plots, out of nearly
6000plots, rest have been distributed.
It is alleged that
the Chief Minister's discretionary quota was created by unlawful and
confidential executive orders without even informing the Cabinet and illegally
usurping the statutory powers of the Administrator. Further that the State
Government formed a Salt Lake Advisory Committee which started distributing the
plots clandestinely. Certain deviations were also made from the Master Plan.
The Government started carving out new residential plots from the land
originally earmarked for civic amenities, ecological balance, maintenance,
public facilities etc. in violation of the approved Master Plan. Sometime in
the year 1985, in view of the serious public protest, the Government dissolved
the Salt Lake Advisory Committee and amended the Act by West Bengal Government
Township (Extension of Civic Amenities) (Amendment) Act, 1985 (for short, the
`1985Amendment Act').
The amendment also
validated the allotments which had been made since October 1, 1976. As already
noticed, Writ Petition No.7553 of 1986 was filed before the Calcutta High Court
praying for issuance of an appropriate direction to the authorities not to
deviate from the Master Plan and to declare the 1985 Amendment Act as ultra
vires. Still another writ petition being Writ Petition No.17306 of 1997 was
filed before that Court challenging the exercise of discretionary powers by the
Chief Minister in regard to allotment of plots in the Salt Lake City. Challenge
was also raised against the deviation from the Master Plan and various
instances of the same were given in that writ petition. The writ petition,
particularly, referred to Sectors 1, 2 and 3 of the City.
As alleged by the
petitioner herein, Writ Petition No. 7553 of 1986 came to be dismissed for
default without deciding the case on merits vide order dated September 2, 2003.
Writ Petition No. 17306 of 1997 also came to be dismissed by the judgment of
the Calcutta High Court dated February 5, 1999, primarily, on the ground that
there was non-joinder of necessary parties, i.e. the persons to whom the
allotments have been made under the discretionary quota and whose names had
been disclosed in the reply affidavit filed in those proceedings have not been
made parties in that petition. The learned Single Judge further observed that
an interim order dated June 11, 1987 passed by another Bench of that Court in
Writ Petition No.7553 of 1986 had allowed the Chief Minister to make allotment
of plots from his discretionary quota and that order was still subsisting. As
that order was passed in independent proceedings no directions in that regard
were issued. But, however, the Court cautioned the Chief Minister that
discretion in allotment of plots should be exercised in accordance with the criteria
stated by the Supreme Court in the case of Common Cause, A Registered Society
v. Union of India [(1996) 6 SCC 530].
The petitioner in
that case filed a Special Leave Petition before this Court wherein leave was
granted and it came to be registered as Civil Appeal No.6707 of 1999. This
Court, vide its judgment dated November 19, 2004 titled as Tarak Singh v. Jyoti
Basu [(2005) 1 SCC201], dismissed this Civil Appeal along with one writ
petition, being Writ Petition No. 216 of 1999 titled as Dipak K. Ghosh v. State
of West Bengal, which was directly filed as a Public Interest Litigation before
this Court raising similar challenges. In these proceedings, vide order dated
November 13, 2003, this Court allowed the impleadment of Respondent No. 24 (to
be read as Respondent No. 8vide order of that Bench dated December 17, 2004),
Mr. B.P. Banerjee, former Judge of the Calcutta High Court and passed the final
order/judgment dated November 19, 2004 quashing the allotment made in favour of
that Respondent despite the fact that he had raised construction on that plot.
This writ petition
was dismissed qua all the respondents except against Respondent No. 24. The
writ petition was allowed qua that Respondent on the ground that the learned
Judge had compromised his divine duty with his personal interest during the
hearing of Writ Petition No.7553 of 1986. It is further the allegation of the
petitioner that the plots from the discretionary quota were allotted on political
and financial consideration and in lieu of favourable services rendered and
that there was a complete abuse of the discretionary quota by the authorities
concerned and even the change in land use from commercial to residential and
vice-versa on the will of the allottees was in arbitrary manner. Petitioner
further prays that this Court should appoint a Committee to scrutinize all
those cases where allotments have been made from the discretionary quota and
quash all the allotments made there under. The challenge of the petitioner is
primarily based upon the ground that discretionary quota for distribution of
plots in the Salt Lake City was arbitrary, illegal and in violation of the
Master Plan. Resultantly, it was in violation of equality and right to life as
enshrined in Articles 14 and 21 of the Constitution of India. Further, by
allotting lands earmarked for civic amenities, the State has violated its promise
extended in the Master Plan on the basis of which people have purchased plots
in the scheme and, as such, these allotments tantamount to undue enrichment of
the State at the cost of the allottees and, therefore, such allotments are in
violation of the law stated by the Supreme Court in the case of Common Cause,
A Registered Society
(supra). Before we proceed to discuss the merits of the challenge made by the
petitioner to the discretionary allotment, we would like to complete the
factual matrix of the case by referring to the facts which appeared from the
record and/or the reported judgments dealing with the same subject matter. As
already noticed, Civil Appeal No. 6707of 1999 was heard along with Writ
Petition No. 216 of 1999 by this Court. During the pendency of these
proceedings, Mr. B.P. Banerjee was ordered to be impleaded as Respondent No. 24
and thereafter he appeared before this Court and contested the matter. The direction
with regard to cancellation of the plot in his favour was finally passed by
this Court. While allowing the appeal limited to that extent, the writ petition
as well as the appeal was dismissed against all other respondents and the Court
held as under:
"It is also
contended by Mr Ganguli that a large number of Judges of the High Court and the
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 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 10 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, un equals cannot be treated equally. 24. In the
backdrop 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 in stil public confidence in the judiciary. It is a case where
a private interest is pitted against the public interest.
It is now a
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 24 Justice B.P. Banerjee
are hereby quashed and cancelled. The plot shall stand vested with the
Government. 27. The net result is that Writ Petition No. 216 of 1999 against
Respondent 24 is allowed and is dismissed qua other respondents. CA No. 6707 of
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." As the directions
contained in the case of Tarak Singh (Supra)were not being properly implemented
by the State Government and the concerned authorities, Mr. Dipak Ghosh, the
petitioner in Writ Petition No. 216 of 1999, filed another application for
strict implementation and compliance of the above order passed by this Court.
In those proceedings, applications were also filed by Mr. B.P.Banerjee stating
that the order of the Supreme Court in Tarak Singh's case (supra) is a nullity,
void and non est against him.
In its judgment in
the case of Dipak Ghosh (supra), this Court dismissed the applications filed by
Mr. B.P. Banerjee and directed that the order of the Court in Tarak Singh's
case (supra) be complied with. The Court also specifically directed that no
application filed by either of the parties in this case shall be accepted by
the Registry without leave of the Court. Since then, no application appears to
have been filed in either of these proceedings. The above prolonged history of
this case clearly shows that in proceedings before the Calcutta High Court, the
merit or otherwise of the discretionary allotments made by the Chief Minister
was not decided in accordance with law. One writ petition, being W.P. No.7553
of 1986, came to be dismissed for default vide order dated September 2, 2003
which order attained finality as no further proceedings were taken by the
petitioners therein. Thereafter, WP No. 17306 of 1997 came to be dismissed,
primarily, on the ground of non-joinder of necessary parties and the allotments
under the discretionary quota of the Chief Minister were not set aside. On the contrary,
while referring to the order dated June 11, 1987 of the other Bench in Writ
Petition No. 7553 of 1986 that was still subsisting, it was observed that the
Chief Minister was permitted to make allotments from the discretionary quota,
however, in accordance with the judgment of the Supreme Court in the case of
Common Cause, A Registered Society (supra).
A Civil Appeal No.
6707 of 1999 against that judgment also came to be dismissed by this Court
along with Writ Petition No.216 of 1999 which had also questioned the
discretionary allotments. In other words, the allotment of large number of
plots in Salt Lake City, Kolkata had been the subject matter of different writ petitions
and/or appeal before the Calcutta High Court as well as this Court and for one
reason or the other the allotments in favour of the private parties had not
been set aside, though there were doubts raised by the Calcutta High Court as
well as this Court regarding allotments under the discretionary quota of Chief
Minister and the manner in which they were made. However, as all these
judgments have attained finality, they cannot be permitted to be agitated over and
over again including in the present writ petition. The principles of finality
as well as fairness demand that there should be an end to the litigation and it
is in the interest of public that the issues settled by the judgments of
courts, including this Court, which have attained finality should not be
permitted to be re-agitated all over again, interest re I public futsit finis
litium.
We are unable to
appreciate that para 28 of the judgment of this Court in the case of Tarak
Singh (supra) leaves the questions open for a fresh adjudication. All that the
Bench has said in that case was that the Court had not approved the policy
decision of the Government with regard to allotment of land by the Chief
Minister from his discretionary quota, but at the same time what is of significance
is that none of the allotments made except that in favour of Respondent No. 24,
was set aside by the Court. The Court then clarified that it had not granted
approval to the action of the State Government of making discretionary
allotments in the manner in which they had been made. This is further
substantiated by the fact that allotment in favour of Respondent No. 24 was specifically
set aside. Thus, the arguments advanced on behalf of the petitioner that para
28 of that judgment leaves all issues open for future determination in this
proceeding or like cases, is legally unsustainable and misconceived.
The jurisdiction of
this Court, in a Public Interest Litigation, cannot be pressed into service
where the matters have already been completely and effectively adjudicated upon
not only in the individual petitions but even in the writ petitions raising
larger question as was raised in Writ Petition No. 216 of 1999 before this
Court. Another important aspect of this case which has persuaded us not to
interfere with settled rights and grant the prayers in this Public Interest
Litigation is that an affidavit on behalf of the State of West Bengal has been
filed recently on December 3, 2010 revealing certain pertinent facts for proper
adjudication of this case. The affidavit, sworn by Mr. Abanindranath Palodhi,
Joint Secretary, Urban Development Department, Government of West Bengal, has
stated that guidelines for allotment of both individual and co-operative residential
plots in Salt Lake were issued by a Government order on December 7, 1999 on the
strength of the Cabinet decision taken on November 10, 1999.
The then Chief
Minister, Late Mr. Jyoti Basu, had already allotted 276 plots out of 290 plots
from his discretionary quota which were available at that point of time and
presently only 14plots are left in that discretionary quota. This affidavit
further states as under: "Subsequently, on 7th December, 1999 four orders
were issued with regard to allotment of residential plots, non-residential
plots for educational institutions and for allotment of plots for cultural,
institutional, industrial, commercial 15 etc. purposes at Salt Lake. All these notifications
required advertisement in newspapers and invitation of application. But what is
significant is that no guidelines had in fact been framed for allotment of
plots from the discretionary quota of the Chief Minister, as a result of which
all the 14 plots belonging to the discretionary quota, which were in existence
in February, 1999, still continue to remain un allotted. As a result, these 14
plots will no more be treated as part of the discretionary quota. (Emphasis
supplied by us) From the above specific averments made in the affidavit, it is clear
that there are very few plots presently left for allotment under the
discretionary quota.
The State Government
has taken a conscious decision not to make further allotments under the discretionary
quota even qua those plots. As far as already allotted plots are concerned, the
rights of the parties appear to have been settled and attained finality, as in
none of the writ petitions/appeals referred above any of these allotments was
set aside by the Courts of competent jurisdiction. The petitioners in those
cases, in fact, did not even care to take further proceedings to have the
matters adjudicated before the higher Courts and in accordance with law. In
these circumstances it will be a futile exercise of jurisdiction of this Court
to reopen the whole controversy once again. The questions raised in the present
petition have become merely academic as the rights of the parties have been
finally settled and further the parties have acted thereupon to their
respective prejudices. Without intending to state any law in the peculiar facts
and circumstances of the present case we find no merit in this Public Interest
Litigation which is dismissed. However, there will be no order as to costs.
.............................................CJI.
(S.H. Kapadia)
................................................J.
(K.S. Panicker Radhakrishnan)
................................................J.
(Swatanter Kumar)
New
Delhi
February
3, 2011.
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