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TMI Blog2006 (4) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... section once hundred and eight of the Government of India Act, 1915 ; and if such Division Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there be a majority, but, if the Judges be equally divided, they shall state the point on which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case, including those who first heard it. 2. It is pertinent to mention that three separate orders were passed while deciding C.W.P. No. 6196 of 2004 on 14.2.2005. The first order was passed by Hon'ble Mr. Justice Surya Kant on 14.2.2005 (the instant order will be referred to as the main Order, passed by Hon'ble Mr. Justice Surya Kant , hereinafter). The next order was passed on the same day by Hon'ble the Chief Justice Mr. Binod Kumar Roy (this order will be referred to as the Order passed by the Hon'ble Chief Justice , hereinafter). In the order passed by Hon'ble the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Officer, U.T., Chandigarh in favour of the Chandigarh Law Institute Private Limited through its Director Ripjit Singh Narang as the allotment itself has been held to be unconstitutional. On the other hand, the Hon'ble Mr, Justice Surya Kant has held: Since we have not been informed by the Chandigarh Administration of any further decision in the matter, and keeping in view our observations and the fact that the Executive Head of the U.T. Chandigarh has already taken a conscience, fair, reasonable and transparent decision to which reference has already been made by us, we dispose of this Writ Petition with the following directions: (i) Administrator, U.T. Chandigarh will take the necessary corrective steps in the matter within a period of two months from today. (ii) In the light of the well settled law that allotment of a public property should conform to Article 14 of the Constitution, we hold that the corrective step to be taken by the learned Administrator, U.T. Chandigarh will have to be in consonance with the aforesaid constitutional philosophy. (iii) The Chandigarh Administration is directed to take a policy decision while keeping in view the observatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Civil Misc. No. 5016 of 2005 has been filed. Herein also the applicant seeks appropriate directions under Rule 31 of Chapter 4(F) of the High Court Rules and Orders, read with, Clause 26 of the Letters Patent. In the instant application, the points of difference have been reflected through the averments made in paragraph 3. Paragraph 3 of Civil Misc. No. 6173 of 2005 is being extracted hereunder: 3. That a perusal of para 1 of the judgment rendered by the then Chief Justice, Mr. Justice B.K. Roy and the Post Judgment Script rendered by Hon'ble Mr. Justice Surya Kant, clearly indicates the points of difference between the Hon'ble Judges, making it expedient for the matter to be referred to an Hon'ble Bench for hearing on the same. For ready reference, para 1 of Hon'ble the then Chief Justice's judgment and the Post Judgment Script of Hon'ble Mr. Justice Surya Kant are reproduced hereunder. Para 1 of Hon'ble the then Chief Justice's judgment: Chief Justice: I have gone through the order prepared by Surya Kant, J. I fully agree with the views taken by him in Paragraphs 39 to 44 of his order except the following words occurring in Paragraph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial or quasi-judicial Tribunals at all times and it is not necessary that the Tribunal should be reminded of this duty in each and every paragraph of the scheme. I am, therefore, inclined to agree with the learned Single Judge that this Court should not try to got into the merits of the case unless the impugned order of respondent No. 1 is shown to be perverse or mala fide. (b) In view of the difference of opinion, between the Hon'ble Judges comprising the Bench, which decided Rajinder Singh's case (supra), the matter was placed before a third Judge (Hon'ble Mr. Justice B.R.Tuli) nominated by Hon'ble the Chief Justice. The nominated third Judge, while disposing of the issue canvassed before him, recorded the following conclusions, after making a reference to Clause 26 of the Letter Patent: From the last portion of this clause, it is evident that the third Judge, to whom a reference is made, can decide the point in difference between the Judges of the Division Bench who are equally divided and not the appeal as a whole. The appeal has to be decided in accordance with the opinion of the third Judge on the point in difference read with the opinions of the othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge is confined to the specific points stated and cannot cover the whole case again. But the order of reference in this case states that the papers may be laid before Hon'ble the Chief Justice and he may designate a third Judge to hear the matter. The learned Judges ought to have stated explicit as to what was to be decided by a third Judge. The expression 'matter' used in the reference has not been clarified as to the points to be decided by the third Judge ; especially in the facts and circumstances of this case and in view of the stand taken by Mr. Bansal, In the absence of the clarification, it is.not possible to answer the reference. On the basis of the conclusions drawn in Amar Pal Singh's case (supra), learned Counsel for the applicants vehemently contend, that since the Hon'ble Judges comprising the Division Bench, which decided C.W.P. No. 6961 of 2004, did not ...specifically state the points upon which they differ(ed)... , the whole case would have to be reheard, as Clause 26 of the Letters Patent, would not be applicable, to the matter in hand. 6B. Learned Counsel for the applicants also invited the Court's attention, to a decision rendered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e legal position on the issue canvassed in the present two applications, is well settled. Basing their claim, on the alleged divergence of opinion expressed by the Hon'ble Judges, who decided C.W.P. No. 6196 of 2004 on 14.2.2005, learned Counsel assert that appropriate directions should be issued, in terms of the precedents relied upon by them. 7. According to the learned Counsel for the applicants, the points of difference clearly emerge from the Order passed by Hon'ble the Chief Justice, relevant part whereof is being extracted hereunder: I have gone through the order prepared by Surya Kant, J. I fully agree with the views taken by him in Paragraphs 39 to 44 of his order except the following words occurring in Paragraph 44 though it is more than difficult to hold him a public spirited person at whose instance a PIL should be entertained and in Paragraph 61 and 62 except those which may be at variation made by me below. According to the learned Counsel for the applicants, the points of difference, also clearly emerge from the Post Judgment Script of Hon'ble Mr. Justice Surya Kant, which reads as under: POST JUDGMENT SCRIPT Having heard the order containin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oints of difference can be summarised under two heads, firstly, the conclusions drawn on the issue of maintainability of the writ petition, as a public interest litigation. And secondly, the eventual direction issued by the Bench while disposing of the main case. Aspect relating to maintainability of the Writ Petition as a Public Interest Litigation. 10. The applicants in Civil Misc. No. 5016 of 2005 i.e. respondent Nos. 2 to 4 had filed a common written statement in response to the pleadings in C.W.P. No. 6916 of 2004, A solitary preliminary objection, was contained therein, pertaining to the maintainability of the writ petition, as a public interest litigation. The aforesaid preliminary objection, is being extracted hereunder: 1. That the present Public Interest Litigation is not maintainable as the petitioner is a fictitious person and his identity/residence has not been established. The learned Counsel for the Chandigarh Administration, Sh. Rajiv Atma Ram vide letter dated 2.5.2004 had requested the Deputy Commissioner, Jalandhar to verify as to whether any person named Neeraj Sharma s/o Late Sh. Ashok Sharma resides in Gali No. 1, Hardev Nagar, Jalandhar (A true copy o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is nothing, but a camouflage to foster personal disputes, the said petition is to be thrown out. Before we grapple with the issue involved in the present case, we feel it necessary to consider the issue regarding public interest aspect. Public interest litigation which has now come to occupy an important field in the administration of law should not be publicity interest litigation or private interest litigation or politics interest litigation or the latest trend paise income litigation . If not properly regulated and abuse averted it also becomes a tool in unscrupulous hands to release vendetta and wreak vengeance as well. There must be real and genuine public interest involved in the litigation and not merely an adventure for a knight errant or poke one's nose into for a probe. It cannot also be invoked by a person or a body of persons to further his or their personal causes or satisfy his or their personal grudge or enmity. Courts of justice should not be allowed to be polluted by unscrupulous litigants by resorting to the extraordinary jurisdiction. A person acting bona fide and having sufficient interest in the proceeding of public interest litigation will alone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the executive and the legislature. The Court has to act ruthlessly while dealing with impostors and busy bodies or meddlesome interlopers impersonating as public-spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of pro bono publico, though they have no interest of the public or even of their own to protect. (ii) It is the settled law that the Courts must do justice by promotion of good faith and prevent the law from crafty invasion and must maintain social balance by interfering where ever it is necessary in the interest of justice but must refuse to interfere where it is against social interest and public good. In the case at hand, the answering respondent have made all endeavour to set up an educational institution for the purpose of imparting legal education after obtaining affiliation with the Punjab University for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e information given in such a petition should not be vague and indefinite and that whatever information has been given should also establish the gravity and seriousness in law. This is lacking in the entire pleadings in the petition. (v) The petitioner has disclosed his personal interest that he wanted to permanently settle in Chandigarh and, therefore, approached the Chandigarh Administration to find out as to whether any scheme would be available for a person like the petitioner for the allotment of residential house and that he being a common man, was bluntly told that he could buy a house by public auction as there is scarcity of land and that the answering respondents have been allotted prime commercial land at a throwaway price and that in the alternative the land could have been allotted to a housing society for construction of 100 flats wherein thousands of persons like the petitioner could have been accommodated. (vi) It is strange that the petitioner has shown total ignorance in regard to the housing societies which are in existence at Chandigarh and that the Chandigarh Housing Board has also floated innumerable schemes for housing persons belonging to weaker and ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em are influential persons. The relations may acquire certain posts because of their hard work and intelligence projected by way of being successful in the competitive examination, that would not mean that every person who occupies such a post, his relation would become an influential person. It is unfortunate that such personal allegations have been levelled by the petitioner. This in itself would show that the petition has not been filed with bona fide intention. The allegations levelled are emphatically denied. (ix) The petitioner has not stopped here and has stated that two Directors of the Institute are still at the stage of completing their law course and are still students and, therefore, the sources of funding of the said project may also be ordered to be enquired into. It is not an effort or an act to malign respondent Nos. 8 and 9 ? PIL is not meant for probing into the assets and liabilities of an individual. The petitioner does not have in his mind the public interest but has a particular interest in his mind for getting the probe ordered into the financial assets of respondent Nos. 8 and 9. This in itself shows and the answering respondents apprehend that the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nued to appear in the court of the Hon'ble Judge even though it was incumbent upon him to disclose to the counsel appearing opposite him in the cases before the Hon'ble Judge in regard to the aforementioned relationship and only in such cases, where no objection from the other side was raised, would have argued the cases, as per the standards of professional conduct and etiquettes ; that it is believed that respondent No. 7 never disclosed his relationship to his colleagues appearing for the other side ; that thus a direction may kindly be issued for calling a list of all such cases in which respondent No. 7 had appeared before the Hon'ble Judge after entering into the business relationship with respondent Nos. 8 and 9 ; and that the orders passed in those cases may be ordered to be recalled and declared null and void. 2. Heard Shri Ajay Kaushik, learned Counsel appearing in support of the prayer made in this application. 3. The question as to whether respondent No. 7, in view of his alleged relationship with the sons of the Hon'ble Judge of this Court, should have appeared before the Hon'ble Judge, cannot be adjudicated in this Public Interest Litigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dacity to file an application for initiation of an enquiry by C.B.I. and that in that application registered as Civil Misc. Application No. 8484 of 2004, it has been mentioned that the said respondent is closely related to a sitting Judge in the Hon'ble Apex Court. This averment was noticed by this Hon'ble Court and it was observed to be scandalous in nature. Resultantly, the Bench, vide its order dated May 12, 2004, permitted the petitioner to delete the para in the application accordingly. The excerpt of the order reads as under: After some arguments, Shri Ajay Kaushik, learned Counsel for the applicant-writ petitioner comes up with a prayer to delete the following words occurring in paragraph 9 of this application, after he fairly stated that it is not the case that any influence was exercised by him in relation to the allotment in question at the same time, he is also a close relative of a Hon'ble Judge of the Apex Court. In the interest of justice, we permit this prayer. The afore-mentioned words stand deleted. (xiii) The aforestated facts show that the petition is definitely not a public interest litigation but is a personal interest litigation allegedly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Courts, innumerable days are wasted which time otherwise could have been spent for the disposal of cases of the genuine litigants. Though we are second to none in fostering and developing the newly invested concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed, unrepresented and unheard ;yet we cannot avoid but express our opinion that while genuine litigants with legitimate grievances relating to civil matters involving properties worth hundreds of millions of rupees of criminal cases in which persons sentenced to death facing gallows under untold agony and persons sentenced to life imprisonment and kept in incarceration for long years, persons suffering from the undue delay in service matters, Government or private persons awaiting the disposal for tax cases wherein huge amounts of public revenue or unauthorized collection of tax amounts are locked up, detenus expecting their release from the detention orders etc. etc... are all standing in a, long serpentine queue for years with the fond hope of getting into the courts and having their grie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court at the threshold for want of locus standi and/or pro-bono publico, yet it is more than difficult to hold him a public spirited person at whose instance a PIL should be entertained. However, in view of the subsequent events to which reference is made in the later part of this judgment, the above mentioned objection does not detain us from proceeding with the matter. In sum and substance, Hon'ble Mr. Justice Surya Kant did not accept the instant preliminary objection, at the hands of the respondents, so as to throw out the writ petition, as not maintainable. 12. In so far as Hon'ble the Chief Justice Mr. Binod Kumar Roy is concerned, the issue under reference was dealt with, and his views and conclusions were inter alia, expressed in paragraphs 10, 12 and 13 (which is the basis of the order passed by Hon'ble the Chief Justice) pertain to the issue of the instant preliminary objection. Paragraphs 10, 12 and 13 of the order passed by the Hon'ble the Chief Justice Mr. Binod Kumar Roy on 14.2.2005 are being extracted hereunder. 10. The property in question belongs to the Chandigarh Administration, which under our constitutional philosophy really belongs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Keeping in mind the dictum laid down in Paragraph 41 of D.S. Nakara (supra) simply because it is his first endeavour to knock the doors of this constitutional Court it cannot be said that he is not a public spirited person or that he lacks bonaflde or that he is a busy body. The Respondents have miserably failed to show that he has been set up mala fide by someone or that he is a busy body. He is a public spirited person. The cause ventilated by him is worth considering and the report of the Audit submitted to the Chandigarh Administration proves the allegations made by him. 13. I thus hold that this writ petition is maintainable. In sum and substance, Hon'ble the Chief Justice Mr. Binod Kumar Roy also did not accept the instant preliminary objections, at the hands of the applicants/respondents, so as to throw out the writ petition, as not maintainable. 13. It, therefore, emerges, that although different reasons have been recorded by the members of the Bench which disposed of C.W.P. No. 6916 of 2004 on 14.2.2005, the conclusion record by them on the issue of maintainability was the same. Merely because the members of the Bench have traversed over different terrain, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the learned Attorney-General of India and the decision, if any, taken by His Excellency Governor of Punjab-cum-Administrator, U.T. Chandigarh. 61. Since we have not been informed by the Chandigarh Administration of any further decision in the matter, and keeping in view our observations and the fact that the Executive Head of the U.T. Chandigarh has already taken a conscience, fair, reasonable and transparent decision to which reference has already been made by us we dispose of this Writ petition with the following directions: (i) The Administrator, U.T. Chandigarh, will take the necessary corrective steps in the matter within a period of two months from today. (ii) In the light of the well settled law that allotment of a public property should conform to Article 14 of the Constitution, we hold that the corrective step to be taken by the learned Administrator, U.T. Chandigarh will have to be in consonance with the aforesaid constitutional philosophy. (iii) The Chandigarh Administration is directed to take a policy decision while keeping in view the observations made in this judgment for allotment of available institutional sites to ensure that allotments are made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ope and trust in His Excellency the Governor of Punjab-cum-Administrator, Chandigarh Administration in finding out (i) who were the persons responsible for the apparent acts of commission? (ii) whether the same requires taking of any disciplinary action? and (iii) whether it requires even launching of prosecution? 15. A perusal of the Post Judgment Script of Hon'ble Mr. Justice Surya Kant (extracted above) reveals, according to the learned Counsel for the applicants, a clear expression of opinion at the hands of Hon'ble Mr. Justice Surya Kant, that he does not subscribe to the directions, inter alia contained in paragraphs 14 and 15 of the order passed by Hon'ble the Chief Justice. Likewise, the order passed by Hon'ble the Chief Justice (extracted above) reveals, according to the learned Counsel for the applicants, a clear expression of opinion at the hands of Hon'ble the Chief Justice Mr. Binod Kumar Roy, that he does not subscribe to the directions, inter alia contained in paragraphs 61 and 62 of the Main Order passed by Hon'ble Mr. Justice Surya Kant. 16. Paragraph 60 of the Main Order passed by Hon'ble Mr. Justice Surya Kant notices two alterna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons contained in the Main Order passed by Hon'ble Mr. Justice Surya Kant, which have been interpreted in the preceding paragraph, Hon'ble Mr. Justice Surya Kant left it to the wisdom of the Chandigarh Administration, to lay down the procedure, for making a fresh allotment of the site earlier allotted to the Chandigarh Law Institute. Significantly, in the Main Order passed by Hon'ble Mr. Justice Surya Kant, he did not specify the exact manner or procedure to be followed, for making a fresh allotment of the site earlier allotted to the Chandigarh Law Institute. 18. Allotments of public property, can be made in conformity of the Constitutional philosophy enshrined in the Constitution, in a number of ways. As for instance allotment by auction, which permits all eligible applicants to bid for the same. In the instant process of allotment, the highest bidder succeeds in bagging the allotment, if he is otherwise eligible, and does not suffer from any disqualification. Allotment may also be mad, in conformity with the said philosophy, on merit,by choosing the most suitable eligible applicant, who according to the wisdom of the selecting body, is likely to raise and run the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of the above, there appears to be absolutely no point of difference/divergence in the parameters within the frame work of which the two members of the Bench issued their directions. 22. Viewed in terms of the deliberations and conclusions recorded in paragraphs 19 to 22, hereinabove, it is not possible to conclude, that there was legally any point of difference in the order passed by Hon'ble the Chief Justice Mr. Binod Kumar Roy, on the one hand, and the Main Order passed by Hon'ble Mr. Justice Surya Kant, on the other, in so far as the directions by which C.W.P. No. 6916 of 2004 was disposed of on 14.2.2005. At the cost of repetition, it may be stated, that although there may apparently seem to be a difference in the thought process, and also the relative rigour of the expressions used, in the order passed by Hon'ble the Chief Justice on the one hand, and the Main Order of Hon'ble Mr. Justice Surya Kant, on the other, yet, it has not been possible to conclude that there was any divergence/ difference in the directions recorded in their separate orders. In the aforesaid view of the matter, no occasions whatsoever arises for issuing any order in terms of Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X
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