-,.I i . 4` . ,. ` CLJl IN THE HIGH COURT 0F SIKKIM AT GANGTOK. WRIT PETITION (C) NO. 10 0F 2003 Hem Lall Bhandari, LL.M. (Harvard) Advocate, permanent resident of C-73 Rawte-Rumtek, East District, Sikkim. . . . Petitioner -VERSUS- 1. The state of sikkim Through its Chief Secretary Having his office in Tashiling Secretariat Gangtok, Sikkim. 2. TheHonble shriR. Dayal Chief Justice, High Court Bungalow No. 11, VIP Colony Gangtok, Sikkim. 3. The Registrar General High Court of Sikkim Gangtok, Sikkim. 4. The union of India through the Secretary Ministry of Law, Justice and Company Affairs Shastri Bhawan New Delhi. 5. Thesecretary Finance Department Tashiling Secretariat Gangtok, Sikkim. The Accountant General Lower Secretariat 31-A, National Highway Gangtok, Sikkim. +.\cp, iL- , .jFL - `.,.,-`..,, +., 7. The chief controller (Pension) Ministry of Finance Department of Expenditure Central Pension Accounting Office Trikoot-II, Bhikaji Kama Lane New Delhi-110 066. ...Respondents. Corum : Honble Mr. Justice N.S. Singh, Judge. Present: Mr. S.K. Home Choudhury, Senior Advocate assisted by Mr. D.K. Singh, Advocate along with Mr. Hem Lall Bhandari, the petitioner in person. Mr. S.P. Wangdi, Senior Advocate and Senior Central Government Standing Counsel with Mr. Karma Thinlay, Advocate for respondent Nos. 3, 4, 6 and 7. Mr. N.B. Khatiwada, Additional Advocate General with Mr. J.B. Pradhan, Government Advocate for respondent No. 1 and 5. Date Of Declslon : Mcay 17, ZOOS. JUDGMENT ORDER N.S. SINGH By way of Public Interest Litigation, for short PIL, the writ petitioner Shri Hem Lall Bhandari approached this Court with this writ petition questioning the validity of the impugned Notifications dated 15th December 1998 as in Annexure P-2 and P-3 to the Writ Petition which was later on withdrawn by the authority concerned under the related a.\6y, Notification dated 12th August 2002 as in Annexure P-5, coupled with a prayer for declaring the entire amount on account of house rent and conveyance allowances drawn by Honble Mr. Justice R. Dayal, Chief Justice of this Court, Respondent No. 2 herein by virtue of the impugned Notifications as in Annexure P-2 and P-3 is liable to be refunded by Respondent No. 2 with interest thereon and with a further direction to the C.B.I. to inquire into the affairs and the alleged tampering and manipulation of Certificate of Registration of ofricial vehicle No. SK-02/0006 and to probe and book the wrong doers by contending, inter alia, (a) that, the petitioner is an Advocate, a permanent resident of Rumtek, East District, Sikkim and is keenly interested in the diligent discharge of his fundamental duties cast upon him by clause (h) and 0.) of Article 51-A of the Constitution of India and the filing of the present Writ Petition by way of PIL has been inspired by the inaugural address of His Excellency the President of India on 26th April 2003 in the Seminar on "Access to Justice" organized by the Supreme Court Advocates-on- record Association and supported by the United Nations Development Programme as seen in the document marked as Annexure P-1 to the Writ Petition; `\6,, /\\ (b) that, the State Government of Sikkim provided furnished residence for the Chief Justice at Balwakhani, Gangtok and the Puisne Judge of the High Court of Sikkim at Bhanupath, Gangtok and both the official residences of the Chief Justice and the Puisne Judge had all along been under the care of the High Court and maintained by the State and in the year 1997-98 the Registry of the High Court spent about Rs.1,90,OOO/- for furnishing the official residence of the Chief Justice; and (c) that, after Respondent No. 2 was elevated as permanent Chief Justice of the High Court in February 1999, he has been in occupation of a well-furnished, spacious official residence (Bungalow No. 11) situated in the VIP colony provided by the Government and in spite of occupying a well furnished official residence provided by the Government, Respondent No. 2 herein has drawn house rent allowance at the rate of Rs.10,OOO/-per month in separate bills, from the month of assuming the post till llth August 2002, and as a pretext to draw house rent at the rate of Rs.10,000/-per month in spite of occupying a well-furnished official residence, a Notification dated 15th December 1998 was got issued `\6yy by Respondent No. 1 on the incorrect and dishonest plea that since a befitting and suitable official residence could not be provided, the Honble Judges would be entitled to draw house rent allowance at the rate of Rs.10,000/-per month and they would pay rent at the rate of Rs.1,OOO/- only per month for the official residence in occupation; and (d) that, those official residences could not become unsuitable and befitting as official residence of the Honble Judges, and apparently, the Notification dated 15.12.1998 (Annexure P-2 and P-3) was issued by the Respondent No. 1 on the incorrect plea that suitable and befitting official residence could not be provided to the Honble LJudges, was nothing but a clever device to favour the Honble LJudges with undue rinancial benefit to enable them to draw income-tax free house-rent at the rate of Rs.10,000/-per month while occupying and enjoying the well-furnished spacious official residence; and (e) that, in spite of being provided with an official car bearing Registration No. SK-02/0006 and driven by a Government paid uniformed chauffeur and enjoying the a+-:-::=-- , a a.` 1,®. same benefit, the Respondent No. 2 herein drew at the rate of Rs.10,000/- per month as income tax free conveyance allowance from February 1999 to 30th June 2000 and at the rate of Rs.12,OOO/-per month from Olst LJuly 2000 to 30th August 2001 and at the rate of Rs.15,000/-per month from 24th May 2002 till date while continuously using the aforesaid Government vehicle by virtue of Notification dated 24th May 2002 (Annexure P-4); and (f) that, the drawal of house rent allowance and conveyance allowance by Respondent No. 2 during the aforesaid period tantamounts to appropriation of Government money; and (g) that, with a view to cover up the illegal drawal of conveyance allowance in spite of being provided with an official staff car driven by Government paid chauffeur, the record of registration of Government vehicle No. SK- 02/0006 attached to the Honble Chief Justice as his official car, which was registered on 21st March 1990, has been tampered with and manipulated to depict the said Government vehicle as the `private car' of respondent No. 2; and d\c#r (h) that, the impugned Notifications dated 15th December 1998 (Annexure P-2 and P-3) were challenged in the Honble Supreme Court in Writ Petition (Civil) No. 331 of 2002 and that after receipt of notice of the aforesaid Petition, the Respondent No. 1 by a Notification dated 12th August 2002 (Annexure P-5) withdrew the aforesaid Notifications dated 15th December 1998 and declared the bungalow in occupation of Respondent No. 2 as the official residence of the Chief Justice, High Court of Sikkim and in view of withdrawal of Notifications dated 15th December 1998 showering undue financial benefits to Respondent No. 2 by Notification dated 12th August 2002, the said Writ Petition (Civil) No. 331 of 2002 pending in the Supreme Court became infructuous and was accordingly dismissed as withdrawn. It is also the case of the writ petitioner that as the ex-facie illegal Notifications dated 15th December 1998 (Annexure P-2 and P-3) have been withdrawn by Respondent No. 1, the Respondent No. 2 can not be allowed to en].oy the undue and illegal benefit of those Notifications already obtained by him by way of house-rent and conveyances and a.i;:`,... ?, he is duty bound to refund the amounts totaling about Rs.8,50,000/-with interest thereon, to the Public Exchequer. 3. That at the very outset the respondents particularly respondents No. 1, 3 and 5 raised Preliminary Objection to the maintainability of the present Writ Petition by filing separate written Preliminary Objection by the Respondents No. 1 and 5 on the one hand and a similar objection by the Respondent No. 3 on the other hand by colitending inter alia, that the p`resent Writ Petition is not filed bonafide by a public spirited person to ventilate some public interest but is a private interest litigation to project the personal interest of the petitioner, the political party he represents, the unscrupulous elements he supports and to terrorize the members of the Subordinate Judiciary of the State so that the members of the Subordinate Judiciary may deliver judgment according to his whims and the petitioner though he claims himself to be a Harvard educated lawyer, he does not have a single brief in the High Court and he is an active member of the Sikkim Sangram Parishad Political Party headed by Shri N.B. Bhandari, who (Shri N.B. Bhandari) and seven other persons questioned the validity of the related order framing the charges in connection with the corruption cases before this Court under Criminal Revision Nos. 5 of t± .i,, 2003 and 1 to 4 of 2003 which were dismissed on lst May 2003 by the Division Bench of this Court headed by the Respondent No. 2 and by the reasons of such dismissal of the Criminal Revision cases, the writ petitioner soon after the dismissal of the Criminal Revisions of a prominent leader of his political party who could not get a favourable order from this Court, filing the present Writ Petition was merely done in order to bring disrepute to the Honble High Court and as I such it could not be said to be in public interest and this fact \ I further get support from the fact that though the petition was I filed on 9th May 2003 in the afternoon, a news item was published in a News Magazine North East!rn Weekend Review (9-15 May 2003) which must have been printed before 8th May 2003 wrongly stating that the Writ Petition was filed on 8th May 2003 and moreover the Writ Petitioner gave publicity of it by holding press conference on llth May 2003 and this clearly shows the malafide intention of the petitioner and that the Writ Petition contains false, frivolous, scandalous and contemptuous allegations made deliberately and intentionally to bring disrepute to the judiciary which amounts to Contempt of Court. 4. Supporting the case of the writ petitioner, Mr. S.K. Home Choudhury, the learned Senior counsel contended that +\c*, *- =,~ 10 the Respondent No. 2 is not entitled to house rent and conveyance allowances as he has been given a well-furnished official residence and provided an official car and the illegal and undue financial benefits on account of house rent and conveyance obtained by Respondent No. 2 to the tune of Rs.8,50,000/-approximately amounts to wrongful loss to the Public Exchequer and the wrongful gain to Respondent No. 2 and that being the position, Respondent No. 2 is bound to refund the said entire amount with interest therein to the Public Exchequer. It is also argued by the learned Senior Counsel that the manipulation and tampering with the Certificate of Registration of official car No. SK-02/0006 to depict/convert it as the private car of the Respondent No. 2 is a very serious matter and it is a fit case for probing the entire matter by the C.B.I. to book the wrong doers and apart from it, the Respondents No. 3, 4, 5, 6 and 7 are duty bound to recover the illegally derived financial benefits to the tune of Rs.8,50,000/- approximately on account of house rent and conveyance allowances by the Respondent No. 2 from his salary, leave encashment due and other pensionary benefits. According to Mr. Home Choudhury, the learned Senior Counsel there is no delay or laches on the part of the writ petitioner as the cause of action of the present case is a continuous one and that no question of res-judicata shall `\O+y + i..`,. 11 ever arise in the instant case and it is a fit case for treating the same as a PIL and in such circumstances an appropriate ad interim order is called for from the end of this Court for withholding and directing the official respondents not to pay any salary, dues, Provident Fund or any other entitlement to the Respondent No. 2 pending final disposal of the present Writ Petition. Supporting the above contention of manipulation and tampering with the Certificate of Registration of the official car, Mr. S.K. Home Choudhury has drawn my attention to the document marked Annexure P-6 which is a copy of the Certificate of Registration of the official car and submitted that the registration number, year of manufacture, class of vehicle, chassis number, engine number, etc. of the official vehicle concerned had been changed/tampered and the name of the Respondent No. 2 has been recorded for personal gain of Respondent No. 2 and apart from the recording of the name of the Respondent No. 2 and treating the class of the vehicle as a private vehicle of the Respondent No. 2 by the Motor Vehicle Department is in complete violation of the provisions of the Section 47 and Section 146 of the Motor Vehicles Act, 1988. Mr. Home Choudhury, learned Senior Counsel further contended that the official respondents made a false statement in their application for Preliminary Objection inasmuch as the `T`t`+. H .- i+0 12 Respondent No. 3 at paragraph 11 (iv) of the Preliminary Objection specifically stated that it was in August 2002 that an official vehicle was provided by the State Government to the Respondent No. 2, but a bare perusal of the documents marked Annexure A-1 of the Preliminary Objection of the Respondents No. 1 and 5 that is the copy of the Certificate of Registration shows that the official vehicle NE 118 year of manufacture 1990 stands in the name of "Registrar General, High Court of Sikkim, Gangtok" as the registered owner as on 16th April 1999 for which required tax has been paid upto 16th April 2000 and the validity of the registration remains up to 16th May 2005 though there is a correction of the name of the owner of the vehicle by deleting the name of the "Registrar General, High Court of Sikkim, Gangtok" and inserting the name of "Secretary, Food and Civil Supplies and Consumer Affairs Department, Govt. of Sikkim". Mr. Home Choudhury went on contended that the Honble Supreme Court did not decide the earlier Writ Petition i.e. the Writ Petition (Civil) No. 331 of 2002 on merit and such decision is not binding upon the High Court and the High Court should go into the merit of the case and decide it as the same is not barred by principle of rejudicata and moreover, in the light of the existing facts and circumstances of the case, judicial scrutiny is called for as the cleanness of judiciary is paramount interest of public ``tlJ-- `, t,0 13 at large. In the instant case, the Respondent No. 2 has been occupying a well-furnished official residence and even the Registry of the High Court had spent about Rs.1,90,000/-for further furnishing of the official residence of the Chief Justice and further provided with an official car bearing Registration No. SK-02/0006 and driven by a Government paid uniformed chauffeur and that being the position the Respondent No. 2 is not entitled to draw the house rent and conveyance allowance as mentioned above and drawal of such allowance and rent by the Respondent No. 2 amounts to appropriation of public money and, the Respondent No. 2 knowing fully well had drawn such rent and allowance to which he was not legally entitled, Mr. Choudhury argued. Learned Senior Counsel also contended that the Preliminary Objection raised by the respondents concerned pertaining to the maintalnability of the present Writ Petition should not be entertained by this Court and the same deserves its outright rejection. 5. Shri S.P. Wangdi, learned Senior Counsel appearing on behalf of Respondents No. 3, 4, 6 and 7 contended that the present Writ Petition is not to further any public interest but to frustrate it at the instance of those who do not want the High Court and the Subordinate Judiciary in the State to work efficiently, impartially and independently +\6¥/ 14 and, the present Writ Petition has been filed with false allegations in order to intimidate and terrorize the judicial officers of the State in an attempt so that in their own interest they may deal with the judicial cases to serve the private interest which the petitioner seeks to serve in the garb of public interest and, the writ petitioner is a briefless lawyer so far as the High Court is concerned and he has full interest in influencing the subordinate judiciary by attacking the High Court in order to give the message to the members of the judicial service that the petitioner can bring the judicial officers also in controversy and so they should work according to his wishes. It was also contended that the present Writ Petition is in furtherance of Writ Petition (C) No. 331 of 2002 filed in the Honble Supreme Court under Article 32 of the Constitution of India by one Gulshan Rat Nagpal against whom three criminal cases are pending in the Subordinate Courts and two criminal contempt cases are pending in the High Court and the said Writ Petition (C) No. 331 of 2002 was dismissed as withdrawn vide, Order dated 2nd December 2002 as a Annexure A-2 to the Preliminary Objection petition of the Respondent No. 3. According to Mr. Wangdi, learned Senior Counsel, the Honble Supreme Court did not want the controversy in any form regarding the two items which have been made the subject matter of the `\c„/ •', 15 petition to continue any longer and apart from it when the Court allows a public interest litigation to be withdrawn, the necessary implication is that no person can re-agitate the same matter in any form even by ingenious dratting in making some changes here and there and the subject matter of the present Writ Petition in some substance is the same as was in the petition before the Honfole Supreme Court that is the validity of the aforesaid two Notifications dated 15th December 1998. Mr. Wangdi, learned Senior Counsel went on to contend that the Respondent No. 2 made the drawal of house rent and conveyance allowances in terms of the related valid Notifications and Orders issued by the competent authority and those Notifications dated 15th December 1998 were issued before the Respondent No. 2 has been posted in the State as Chief Justice of this High Court and it is unconceivable that the Government would think of giving undue benefit to a Chief Justice who had not been posted in the State at the relevant time and over and above this, both the impugned Notifications dated 15th December 1998 are admittedly not in existence as they have been withdrawn vide, Notification No. 30/HOME dated 12th August 2002 and, there can be no question of declaring the Notifications which do not exists as illegal. On behalf of the Respondent No. 3 Mr. Wangdi, learned Senior Counsel mainly contended that the + RIEEE `® i]t 16 Respondent No. 2 had been using his personal car till the allotment of official vehicle by the State Government and the vehicle which was attached to the previous and former Chief LJustices of this High Court was of NE 118 (off white colour) bearing Engine No. 025651, Chassis No. 26489 with the year of manufacture as 1990 and its registration number was SK- 02/0006 and this registration number is ear-marked and meant for Chief Justice and after the former Chief LJustice Thanikkachalam demitted office in 1997, the said vehicle being an old one and not fit for use of the Chief LJustice was allotted to the LJoint Registrar in the year 1998 before the Respondent No. 2 came to Sikkim in February, 1999 and at the relevant time when the Joint Registrar proceeded to State Government on deputation, the said vehicle was surrendered by the High Court to the State Government and subsequently the same NE 118 bearing Registration No. SK-02/5907 was allotted to the Sikkim State Consumer Disputes Redressal Commission and the Respondent No. 2 was using his personal vehicle NE 118 (off white colour) bearing Registration No. MH 01/P-5948 bearing Chassis No. 060211, Engine No. 059242 with the year of manufacture as 1994, when the Respondent No. 2 was a Judge of Calcutta High Court and he was drawing the conveyance allowance in West Bengal and while in Sikkim, the Respondent No. 2 applied for •\6*/ ',..,. 17 change of Registration Number and allotment of Registration Number by Sikkim Transport Authority and thereafter the Transport Authority allotted the Registration No. SK-02/0006 and accordingly the respondent No. 2 drew conveyance allowance in terms of the impugned Notification dated 15th December 1998 and it was in August 2002 that an official vehicle was provided by the State Government to the Respondent No. 2, and thereupon the Respondent No. 2 sold his private vehicle to Shri Bimal Kumar Sarma Choudhury of Siliguri and a new official vehicle was provided to Honble Chief Justice in the year 2002 the same registration number SK-02/0006 which was allotted to the personal vehicle of the Chief LJustice has been allotted to the new official vehicle by the State Government and that being the position the allegation of tampering or manipulation of the record are entirely unfounded, baseless and the same have been made to bring the High Court in disrepute so that the High Court may not work independently. Mr. Wangdi further submitted that the writ petitioner has not only committed grave Contempt of Court but has also deliberately made false statements making him liable to be prosecuted under Section 193 IPC. According to Mr. Wangdi, learned Senior Counsel, it was decided by the State Government to provide a temporary official residence for Respondent No. 2 in bungalow No. 11 at VIP complex as a.\C»/ -i. ~` i.O 18 temporary measure though the bungalow No.11 was not considered to be fit and suitable for a Chief Justice after some further improvement were made in the said bungalow in order to provide some minimum facilities, and the respondent No. 2 has been allowed to draw house rent allowance under the related impugned Notifications which had been in existence before the Respondent No. 2 assumed the charge of Chief Justice, but later on, the said Notification was withdrawn under a related Notification dated 12th August 2002 and moreover, the original earmarked bungalow at Balwakhani was not available to be occupied by the Honble Chief LJustice in February 1999 since the office of the Sikkim State Legal Services Authority was functioning in that bungalow. Highlighting the malafide motive of the writ petitioner and the false allegations made by the writ petitioner, Mr. Wangdi, learned Senior Counsel further argued that the writ petitioner rushed to the Court without undertaking a research in the matter and if the writ petitioner made such research before filing the present writ petition he ought to have known all these factual and real position, but for his personal interest he filed the present writ petition without any justification. The mere busy body or a meddlesome interloper or wayfarer or officious intervener having absolutely no public interest except for personal gain or private profit either for themselves +\6*/ +- i,.. 19 or as pro2ry of others or for any other extraneous motivation or for glare publicity could not be allowed to abuse the process of Court by initiating vexatious or frivolous litigation. Supporting this contention, Mr. Wangdi leamed Senior Counsel has relied upon the decision of the Apex Court rendered in Janata Dal Vs. H.S. Chowdhary and others reported in 1992 Vol. IV SCC 305 and another decision rendered in S.P. Anand Vs. H.D. Deve Gowda and others reported in AIR 1997 SC 272. It was also contended by Mr. Wangdi, learned Senior Counsel that the present writ petitioner did not approach the Court with clean hands inasmuch as