W.P. (C) No.26393 of 2011 In the matter of application under Articles 226 and 227 of the Constitution of India. _________ Niranjan Tripathy … Petitioner - versus - State of Orissa & others … Opp. Parties For Petitioner : M/s. Srinivas Mohanty, S.Moharana, S.Routray, N.Tripathy & S.R.Mohanty For Opp. Parties : None ____________ P R E S E N T : THE HON’BLE CHIEF JUSTICE MR V. GOPALA GOWDA AND THE HON’BLE MR JUSTICE I. MAHANTY, J. ------------------------------------------------------------------------------------ Date of Hearing – 24.11.2011 : Date of Disposal – 08.12.2011 ------------------------------------------------------------------------------------ V.Gopala Gowda, C.J. This writ application in the nature of Public Interest Litigation is filed by a practicing Advocate who has put in five years of practice at the Bar seeking for an inquiry by the Central Bureau of Investigation to trace out the truth regarding allotment of plots out of Discretionary Quota as to (i) whether before allotment out of the Discretionary Quota the eligibility of the beneficiaries was to be enquired into; (ii) whether individual statement of the beneficiaries ORISSA HIGH COURT : CUTTACK are recorded for just requirement of the plot necessitating an allotment from Discretionary Quota by the Chairman; and (iii) whether the beneficiaries of the plots in question are required to be treated separately beyond the rules made for the general public as a whole, urging various facts and furnishing a list of sitting Judges and former Judges of this Court, former Judges of the Supreme Court, IAS, IPS and IFS Officers with their names and address by producing Annexure-1 along with a list of plots at Bidanasi project area granted under the Discretionary Quota during the period 2000-2007, as well as, enclosing certain extracts from the websites of Outlook India.com dated December 6, 2004 under the heading “Salt Lake Scam” and extract from The Sunday Indian dated September 14, 2011, The Telegraph dated November 9, 2010 under Annexure-2 series. Annexure-3 series is the extract of the The Frontline magazine dated May 10-23 2003 with reference to a former Delhi High Court Judge Shamit Mukherjee. 2. A further affidavit has been filed on 31 October, 2011, sworn to by the petitioner by annexing thereto, the extract of documents under Annexures-4 and 5, i.e., the extract of the Procedure for allotment of assets of Bhubaneswar Development Authority” and the “Further Information Allotment of plot/Commercial plot/Institutional at Bidanasi Project Area from the year 2004 to 2007”. 2 3. Apart from the above, the petitioner has filed Misc. Case No.17846 of 2011 on 16th November, 2011 with a prayer to call for the records from the Cuttack Development Authority and Bhubaneswar Development Authority (hereinafter called “CDA” and “BDA” respectively) and direct them not to allow further construction on the plots made available under the Discretionary Quota and further sought for orders to dissociate all the favoured personalities from being directly or indirectly involved in the affairs of the cities of Cuttack and Bhubaneswar including IAS or IPS officers, pending disposal of the above writ application and further to pass orders to keep the favoured Hon’ble sitting Ministers off the portfolio pending disposal of the writ petition too, and pass any other and/or further order/orders as deemed fit and proper under the circumstances. The petitioner sought to annex thereto Annexure-6 downloaded from the website of the Open magazine, dated 5 November, 2011. Annexure-7 to this Misc. Case relates to Information Allotment of plot/Commercial plot/Institutional at Bidanasi Project Area, from the year 2004 to 2007,” which is the repetition of Annexure-5 filed in the additional affidavit dated 31st October, 2011. The documents produced at Annexures-8, 9, 10 and 11 are claimed to be copies of the applications purportedly to have been sent by certain sitting Hon’ble Judges and former 3 Judges of this Court seeking for allotment of sites. Annexure-12 series are copies of news clippings of the local daily The Samaja dated November 13, 2011. 4. The petitioner has further filed another Misc. Case No.17941 of 2011 on 21.11.2011 seeking leave of this Court to withdraw the above writ petition, with liberty to file a fresh writ petition in the form of a Public Interest Litigation in accordance with the Orissa High Court Public Interest Litigation Rules, 2010 (hereinafter called “the PIL Rules, 2010”). 5. The following issues arise for consideration: (i) Whether the writ petition, which is filed by a practicing Advocate, is a genuine public interest litigation petition? (ii) Whether the public interest litigation is filed by the petitioner following the procedure prescribed in the Orissa High Court Public Interest Litigation Rules, 2010 framed pursuant to the direction given by the Apex Court in the case of State of Uttaranchal v. Balwant Singh Chaufal & others, AIR 2010 SC 2550? (iii) Whether the petitioner has made out a case for entrusting the matter to the CBI for inquiry 4 and for grant relief as prayed for in the writ petition, additional affidavit and in the Misc. Cases No.17844? and (iv) Whether the Misc. Case No.17941 of 2011 is filed with the necessary bona fide seeking leave of this Court to withdraw the writ petition with liberty to file a fresh one? 6. Before delving into the facts pleaded, in order to answer the aforesaid issues that fall for our consideration, it would be very useful to refer to certain orders passed in the present case for the purpose of examining the genuineness/bona fide on the part of the petitioner in filing the present writ petition, additional affidavit as well as Misc. Cases along with the documents referred to supra. 7. On 29.9.2011, this mater was listed for hearing on the question of admission. After hearing Mr Srinivas Mohanty, learned counsel for the petitioner, this Court passed the following order: Order dated 29.9.2011 “Heard learned counsel fo the petitioner and learned Government Advocate. Before issuing any notice, we direct the learned counsel for the petitioner to produce the discretionary quota regulations/guidelines, if any, along with other necessary documents in support of his case. 5 List this matter after the ensuing Puja Holidays. Since we have not issued any notice in this matter, we direct the parties not to go to the Press/Electronic Media for publication of any type of news item with relation to this case.” (Underlined for emphasis) 8. In spite of the observations made in the said order and during the pendency of the present proceedings, the allotment of Discretionary Quota to various persons was widely published both in the electronic media as well as print media. Certain extracts of such press coverage have been filed by the petitioner by way of additional affidavit as Annexures-6 to 12 to Misc. Case No.17846 of 2011. This fact by itself clearly exhibits that the real object behind filing of this writ petition is nothing but getting publicized through media by maligning various constitutional functionaries and others. 9. On 16.11.2011, when the matter was again listed, the petitioner filed Misc. Case No.17846 of 2011. Reliance was placed on a further affidavit of 31st October, 2011 and also on the averments made in Misc. Case No.17846 of 2011. After hearing learned counsel, to the query of the Court as to whether the petitioner had complied with the provisions of the Orissa High Court Public Interest Litigation Rules, 2010, learned counsel for 6 the petitioner pleaded ignorance of the said Rules and stated that he intends to comply with the same and, hence for such purpose, requested for adjournment of the matter. Adjournment was allowed and the matter was fixed to the next week. 10. Thereafter on the next date i.e. on 24.11.2011, instead of complying with the direction dated 16.11.2011 and taking steps to bring the writ petition within the parameters of the PIL Rules, 2010, he filed another Misc. Case No.17941 of 2011 in the Registry, seeking for withdrawal of the writ petition with liberty to file a fresh writ application in the PIL format in accordance with the PIL Rules, 2010. 11. In the above backdrop, we have heard learned counsel for the petitioner on the writ petition, further affidavit, pending Misc. Cases referred to supra, with a view to find out as to whether the averments made in the writ petition, further affidavit and Misc. Case are in conformity with the PIL Rules, 2010, and also to prima facie verify the credential of the petitioner as to whether this PIL satisfies the directions issued by the Apex Court in the case of State of Uttanchal v. Balwant Singh Chaufal & others, AIR 2010 SC 2550 and involves public interest. 12. At this stage, we would like to state the facts in order to find out as to whether there is genuineness for treating the same 7 as Public Interest Litigation and to answer the issues that are formulated in this writ petition in paragraph-5 above. 13. The petitioner has stated that in the writ petition that apart from practicing Law, incidentally, he was visiting the State Secretariat. He alleged that he got to know that Judges of this Court have received plots from the CDA from out of the Discretionary Quota based on extraneous consideration and, this being the talk in the corridor of the State Secretariat, the petitioner felt injury to his feelings and enquired into the factual position. He learnt that on 15.02.2008, the then M.L.A. of Banki Constituency had raised a question on the floor of the Assembly about the allotment of plots in favour of IAS/IPS/IFS/Judges/Judges of the High Court and in answer thereto the factual position for allotment of the aforesaid plots were tabled before the floor of the Legislative Assembly of Orissa referring to Annexure-1 to the writ petition. 14. It is further stated that in view of the facts and circumstances of the case, the petitioner considers it as his right as well as his duty to see that there must be proper administration of justice in accordance with law thereby no general public ought to be discriminated in respect of allotment of plots under the Discretionary Quota, and thereby the constitutional rights guaranteed under Articles 14 and 15 of the Constitution of India should remain protected. 8 15. Further, it is alleged that a glance at Annexure-1 would also indicate that the plots allotted were not of any definite size nor belong to any particular category under the scheme of the Development Authorities. As could be seen from the allotment of plots, their sizes vary from allottee to allottee and, more particularly, it is seen that the plots in question are allotted in the prime localities of the area concerned. Therefore, it is alleged that without any scheme being followed, the Discretionary Quota of the Chairmen of the Development Authorities referred to above, is alleged to have been exercised indiscriminately. 16. It is further stated that as per the common understanding of law, that when something is to be done within the “discretion” of the authorities, the same is required to be done in accordance with the rules, reason and justice and not according to private opinion and humour. In support of the said proposition of law, the petitioner placed reliance upon the decision of the Apex Court in S.G. Jaisinghani v. Union of India, AIR 1967 SC 1427. At paragraph-9 of the said judgment, it is held by the Apex Court that there shall be equality of opportunity for all citizens. At paragraph-14 of the said judgment it is defined that discretion when conferred upon the executive authorities, it must be confined within clearly defined limits. It means sound discretion guided by 9 law. It must be governed by rule, not by humor; it must not be arbitrary, vague and fanciful. 17. Learned counsel for the petitioner has further placed strong reliance upon the decision of the Apex Court in Tarak Sigh & another v. Jyoti Basu and others, (2005) 1 SCC 201. It is alleged that having scanned through the allotment of plots by the Cuttack Development Authority in Bidanasi Project area, it is noticed that the opp. party-CDA is believed to have made over crippled information to facilitate the Question And Answer Session of the Assembly inasmuch as although Hon’ble Judges of this Hon’ble High Court are the beneficiaries of the alleged allotment from out of the Discretionary Quota. They were named in ordinary words without any mention about their designation and even the residential address was not placed properly. In this view of the matter, doubts came to the mind of the petitioner as to why the Development Authorities are not clean in making the correct statements. 18. It is further stated that during the span stretching from 2000-2007 as many as 22 numbers of beneficiaries were allotted with plots in Bidanasi Project area from out of the Chairman’s Discretionary Quota. The said 22 numbers of allottees are known for their high posts in the State administration and they have been appeased by the CDA, having not framed any basic 10 principles for such allotment of plots in the prime localities. The said allotments have been made indiscriminately without any definite size of the plot, and as and when whatever plots were found available regardless of the need of the beneficiaries and public convenience. 19. It is alleged that the sitting Judges, former Judges of this Court and former Judges of the Supreme Court are the beneficiaries of the allotment of plots under the Discretionary Quota apart from the bureaucrats of the State whose list has been furnished in the writ petition. 20. It is further alleged that the top position bureaucrats have equally been allotted with plots under the Discretionary Quota at the prime locations of Bhubaneswar City. The same has been done taking into consideration the positions of the officers in the hierarchy of administration of the State, which has become centre of attraction for the allotment of plots under the Discretionary Quota of the Chairman. Therefore, it is alleged that the allotment of plots is vitiated on account of indiscriminate allotment of plots to the persons holding key positions in the State Administration without any reasonableness thereby discriminating the public at large from the possibility of getting such allotment of plots in the area in question 11 21. In the additional affidavit filed on 31st October, 2011, the procedure for allotment and percentage of allotment under the Discretionary Quota as well as the eligibility criteria of the BDA has been annexed. In Misc. Case No.17846 of 2011 also, some allegations are made with regard to introduction of statutory rules by the Government to rationalize public distribution system and to ensure proper distribution of essential commodities to the common man and similar persons who are deficient of land in the upcoming cities. The State Government has introduced the Orissa Development Authorities Act, 1982. As per the provisions of the said Act, the Government lands developed for housing plots are devised to be reasonably and rationally allotted among the intending persons under the definite plans. Looking at the paucity of land in the city of Cuttack, the Government has been pleased to construct a ring road between the river The Kathajodi and The Mahanadi, and out of the river bed, a vast patch of land was discovered for establishing township of Abhinaba Bidanasi, Cuttack. Reference has been made to certain averments in relation to development of township, which are germane to the purpose of present adjudication in this petition. 22. It is further alleged that the authorities, namely, BDA and CDA have indiscriminately distributed plots amongst the rich and influential persons. The same practice has been adopted since 12 2000 by the then Minister in-charge of the Ministry of Urban Land Development Department, Orissa in order to legalize his own land craze, willfully allotted plots to the Judges of the Court, particularly when an important PIL bearing O.J.C. No.6721 of 1992 was being heard by the Judges of the Court; the Judges of this Court have been the allotted with plots under the Discretionary Quota. 23. It is further alleged that no sooner the Judges of the Court have been benefited with such allotment of plots, the bureaucrats and high police officials and so also politicians have indiscriminately hijacked the benefits in the guise of the Discretionary Quota at the use of their respective powers and positions and made the Development Authorities thereby deficient of vacant lands for allotment to the applicants waiting for years together. 24. In other paragraphs reference is made to the extracts produced in relation to the Magazines adverted in the earlier paragraphs of the judgment, which have no relevance for the purpose of considering the prayers made either in the writ petition or Further Affidavit or Misc. Case No.17846 of 2011. 25. It is also relevant to verify the correctness of the statements made in the writ petition, Further Affidavit and affidavit sworn to in the Misc. Case respectively. To verify the same, the 13 relevant paragraphs of the said affidavits sworn to by the petitioner are required to be extracted as hereunder: Affidavit to the writ petition “Para-3 : That I have collected Annexure-1 from one of the members of the Hon’ble House and I support the contents to be true so far as the exact xerox copy of the document is concerned. Para-4 : That xerox copy of Annexure-1 is available with me for verification. I have retyped the contents for clarity and making the same readable for the better appreciation by the Hon’ble Court. Para-5 : That Annexure-2 series are all available from the net which on being downloaded I filed the copies and I support the same being true so far as net news is concerned.” Further Affdavit dated 31 st October, 2001 Para-6 : That the annexures filed in the case are all personally collected by the deponent from different private sources on the basis of which the above affidavit is filed; and since the contents for the annexure appears to be disclosing prima facie facts, the deponent has brought the same before this Hon’ble Court for further scrutiny; and in the event records relating to the alleged allotment of plot is called for, logistic conclusion in the matter may be arrived at.” 14 Affidavit to Misc. Case No.17846 of 2011 “Para-3 : That the annexures filed are mostly collected from different reliable sources for which the petitioner stands for the same.” 26. Learned counsel for the petitioner also placed strong reliance upon the decision of the Apex Court in the case of Tarak Sigh referred to supra. The relevant paragraph-23 of the said judgment is extracted as hereunder: “Para-23 : Since the issue involved in the present controversy will have far-reaching impact on the quality of the judiciary, we are tempted to put it on record which we thought to be a good guidance to achieve the purity of administration of justice. Even 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 misused his divine judicial duty as 15 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 Judges got allotment from the Chief Minister’s quota simplicitor like any other citizen.” Issue Nos.(i) and (iv) 27. As Issue Nos.(i) and (iv) are interlinked, they are answered together by assigning the following reasons: 28. It would be worthwhile to extract certain directions issued by the Apex Court in the case of State of Uttaranchal v. Balwant Singh Chaufal & others, AIR 2010 SC 2550, to find out as to whether this writ petition is a genuine public interest litigation, which is filed by a practicing lawyer espousing the public cause, either to prevent public injury or to protect public interest. The Apex Court in the cited case adverted to the entire case law on the question of public interest litigation and the nature of cause of action for PIL and locus standi of a person to espouse public cause. The Apex Court at paragraph-198 after referring to the entire case law on the question and the definition of Public Interest Litigation from United State of America, England, Sout Africa, Pakistan, Srilanka, Nepal, and the approach of the Courts of the said countries with reference to their Constitution and extracting the definition of Public Interest Litigation as defined in the Black’s 16 Law Dictionary (6th Edition) at paragraph-29 of the said decision, has observed that the Council for Public Interest Law, set up by the Ford Foundation in USA, defined Public Interest Litigation, in its report of Public Interest Law, USA. The origin of Public Interest Litigation and evolution of the public interest litigation in India and the parameters to entertain public interest litigation have been succinctly laid down by the Apex Court in the aforesaid paragraph, which is extracted below for the purpose of examining as to whether the averments, allegations made with reference to the extract, documents produced and verification made on the affidavits sworn to by the petitioner fall within the definition of PIL and as to whether the present PIL is genuine one. The said paragraph-29 is extracted as hereunder: “Para-29 : The Council for Public Interest Law set up by the Ford Foundation in USA defined “public interest litigation” in its Report of Public Interest Law, USA, 1976 as follows: Public interest law is the name that has recently been given to efforts providing legal representation to previously unrepresented groups and interests. Such efforts have been undertaken in the recognition that ordinary marketplace for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups and interests include the proper environmentalists, consumers, racial and ethnic minorities and others.” (Holicow Pictures (P) Ltd. v. Prem Chandra Mishra, SCC p. 288, para 10 : AIR p. 918, para 19.) : (2008 AIR SCW 343). 17 29. Further, at paragraph-198 of the said judgment directions were issued to the High Courts to examine as to whether the Public Interest Litigation petition fulfilled the requirements as laid down by law. Those directions as at paragraph-198 of the said judgment read thus : “Para-198. In order to preserve the purity and sanctity of the PIL, it has become imperative to issue the following directions: (1) The Courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations. (2) Instead of every individual Judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the rules prepared by the High Court is sent to the Secretary General of this Court immediately thereafter. (3) The Courts should prima facie verify the credentials of the petitioner before entertaining a PIL. 18 (4) The Courts should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL. (5) The Courts should be fully satisfied that substantial public interest is involved before entertaining the petition. (6) The Courts should