1 wp1494-11.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1494 OF 2011 Santoshkumar R. Jaiswal .. Petitioner versus The State of Maharashtra & Anr .. Respondents Mr.P.K.Dhakephalkar, Sr. Advocate a/w Mr.S.U.Dhakephalkar for the petitioner. Mr.D.A.Nalawade, G.P for respondents. CORAM : S.C.DHARMADHIKARI, J. 28th September 2011. P.C.: . This is a writ petition by Santoshkumar R. Jaiswal presently posted as Chief Judicial Magistrate, Bhandara, which is a post in State Judicial Services. He is aggrieved and dissatisfied with the order passed by the Appellate Officer dismissing his Appeal No.2 of 2011. By this order dated 12th July 2011, the Appellate Officer confirmed the order of the Competent Authority dated 10th May 2011. The Competent Authority had proceeded under section 66 of the Maharashtra Housing and Area 2 wp1494-11.doc Development Act, 1976 and directed the petitioner to vacate a tenement bearing No.H-26A/401, Pratiksha Nagar, Sion, Mumbai 400 022 in seven days from this order. 2 After taking instructions from the petitioner, Mr.Dhakephalkar, learned senior counsel states that the petitioner on his own would give up all right, title and interest in the tenement at Pratiksha Nagar, Sion and would surrender possession thereof within a period of four weeks from today to the Esate Manager of the Maharashtra Housing and Area Development Authority. He states that the petitioner on his own will remove all articles and movables lying in the flat and hand over the keys to the Estate Manager. Needless to state that if this statement is not adhered to and abided by the petitioner, the Estate Manager will be at liberty to take such action as permissible in law including taking forcible possession of the said tenement from the petitioner. 3 It is stated that the action under section 66 of the Act was initiated by the Competent Authority upon a complaint which was made by respondent No.2 in Writ Petition No.1494 of 2011. Mr.Dhakephalkar submits that on instructions he is making a request that the orders 3 wp1494-11.doc impugned in the writ petition be set aside, but the petitioner’s statement be recorded that he withdraws an application dated 27th January 2009 which is made by him for allotment of an tenement/flat at Pratiksha Nagar, Sion, Mumbai based upon which the tenement was alloted to the petitioner. Further statement of the petitioner that he withdraws affidavit dated 29th May 2009 be also recorded. Once the petitioner withdraws both, the application and affidavit, and does not desire to have any allotment of a tenement at Pratiksha Nagar in his name, then, the MHADA should in the peculiar facts and circumstances, return the monies which have been collected from the petitioner towards this allotment and the petitioner would not claim any interest thereon. 4 While it is true that the eviction order has been passed by the Competent Authority and that the same has been confirmed by the Appellate Officer, but considering the position that the petitioner is holding and he of his own stating before this Court that he does not press for any allotment and the application as also the affidavit made may be permitted to be withdrawn so also the allotment be treated as cancelled, that in the peculiar facts of this case, I am directing that the application made for allotment stands withdrawn. All documents which 4 wp1494-11.doc have been filed pursuant to that application including the subject affidavit, stands withdrawn. If the petitioner has paid any monies towards such allotment, the MHADA may refund the same only after the petitioner hands over vacant and peaceful possession of the said tenement to the Authority within the time stipulated above. This order shall not be treated as precedent in all such cases and only in the peculiar facts of this case and since the petitioner on his own realising his mistake and error, has made a statement, knowing fully well the consequences thereof, that this order is passed in the present case. It shall not be treated as binding on MHADA or any authority in future cases or cases of like nature. 5 This order passed shall not be treated as an exoneration of the petitioner from the charge of violation or breach of the service/conduct Rules or any charges that may have been framed against him in any of the inquiries and all such inquiries on the administrative side of this Court shall continue uninfluenced by the order passed in this writ petition. The statements made by the petitioner before this Court now regarding the withdrawal of the application for allotment and the affidavit shall not prevent the competent Authority in initiation and prosecution of 5 wp1494-11.doc disciplinary/departmental proceedings and all contentions of parties in that behalf are kept open. I am constrained to issue this clarification because we in judiciary have not taken any clue from or serious note of the warning issued by the Hon’ble Supreme Court in the case of Tarak Singh & Another vs. Jyoti Basu & Others reported in AIR 2005 S.C.338. 6 In paras 20 to 24, this is what the Hon’ble Court observed and held: “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-is self discipline. The responsibility is self responsibility. Judicial discipline is an inbuilt mechanism inherent in the system itself. 6 wp1494-11.doc 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-but the function of judiciary is distinctly different from other organs of the State-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 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 the Public Confidence in the system. We must remember that woodpeckers inside pose a larger threat than 7 wp1494-11.doc 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 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 8 wp1494-11.doc 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 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 Minsiter 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-Justice B.P.Banerjee are hereby quashed and cancelled. The plot shall stand vested with the Government.” 7 Further, needless to state that upon surrender by the petitioner of the said flat and/or tenement, the MHADA shall make an allotment thereof strictly in accordance with the rules and regulations, as applicable and without any precedence being given to anybody including the original complainant or persons in any prior or existing waiting list. Writ petition is disposed of in the above terms. (S.C.DHARMADHIKARI, J)