PIL 68/2009 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI, CHIEF JUSTICE (ACTING) HON’BLE MR. JUSTICE AMITAVA ROY Ranjan Gogoi, CJ (Acting) Heard Mr B Pradhan, learned senior counsel for the petitioner. This PIL has been filed seeking the following reliefs : In the circumstances aforesaid, the Petitioner most humbly prays that this Hon ’ble Court may graciously be pleased to admit this petition, call for the record s of the case, issue rule nisi calling upon the Respondents to show cause as to why a Writ in the nature of:- (a) mandamus be not issued directing the Respondent Nos. 1,2,3,4 and 5 to conduc t de novo reinvestigation and/or further investigation in Panbazar P.S. Case No. 15 of 1991 for offences under Section 25(1)(A) of the Arms Act read with Sectio ns 3 & 4 of the Terrorists and Disruptive Activities (Prevention) Act, 1987 dat ed 12.01.1991 and Chandmari P.S. Case No. 77 of 1991 for offences under Section s10, 11, 12 and 13 of the Unlawful Activities (Prevention) Act, 1987 read with S ections 3 & 4 of the Terrorists and Disruptive Activities (Prevention) Act, 1987 dated 28.03.1991 to be monitored by the Respondent No. 3 and take all further n ecessary action in accordance with law against the offenders/ persons involved i n the commission of the said offences; and/or (b) mandamus should not be issued transferring the investigation in Panbazar P.S. Case No. 15 of 1991 for offences under Section 25(1)(A) of the Arms Act re ad with Sections 3 & 4 of the Terrorists and Disruptive Activities (Prevention) Act, 1987 dated 12.01.1991 and Chandmari P.S. Case No. 77 of 1991 for offences under Sections10, 11, 12 and 13 of the Unlawful Activities (Prevention) Act, 19 87 read with Sections 3 & 4 of the Terrorists and Disruptive Activities (Prevent ion) Act, 1987 dated 28.03.1991, to the Central Bureau of Investigation or any o ther Independent Investigating Agency; and/or (c) mandamus should not be issued directing an inquiry by the Respondent No. 3 herein or through a reputed person of unflinching integrity to enquire into t he circumstances which led to the disappearance of case diary in Chandmari P.S. Case No. 77 of 1991 for offences under Sections10, 11, 12 and 13 of the Unlawful Activities (Prevention) Act, 1987 read with Sections 3 & 4 of the Terrorists an d Disruptive Activities (Prevention) Act, 1987 dated 28.03.1991, the filing of t he Application for discharge made by the Investigating Agency in Panbazar P.S. Case No. 15 of 1991 for offences under Section 25(1)(A) of the Arms Act read wit h Sections 3 & 4 of the Terrorists and Disruptive Activities (Prevention) Act, 1987 dated 12.01.1991 and the circumstances under which the Closure/ Final Repor t was filed in Chandmari P.S. Case No. 77 of 1991 for offences under Sections10, 11, 12 and 13 of the Unlawful Activities (Prevention) Act, 1987 read with Secti ons 3 & 4 of the Terrorists and Disruptive Activities (Prevention) Act, 1987 dat ed 28.03.1991 and identifying the delinquent officers and submit a report to thi s Hon’ble Court; and/or (d) mandamus be not issued declaring the allotment/ settlement of land beari ng Dag No. 154 measuring 20 bighas of land allotted vide Settlement Order dated 20.01.2005 situated in village Nomalijalah, Mouza Sendurighopa in favour of M/s. Jerico Detergent Private Limited (Respondent No. 7) as null and void, illegal a nd accordingly set aside/ cancel/ annul the said allotment. (e) pass appropriate orders so as to mould the relief/ reliefs to meet the e xtraordinary facts and exigencies of the present case and to do complete justice in the matter. And upon perusal of the records and considering the show cause, if any, and upon hearing the parties, be pleased to make the Rule absolute; and/or pass any othe r or further order/order as Your Lordships deem fit and proper in the facts and circumstances of the case. -AND- (i) Pending the hearing and final disposal of this Writ Petition, be further pleased to direct the Registrar General of this Hon’ble Court to seal the recor ds in Panbazar P.S. Case No. 15 of 1991 for offences under Section 25(1)(A) of t he Arms Act read with Sections 3 & 4 of the Terrorists and Disruptive Activitie s (Prevention) Act, 1987 dated 12.01.1991 and Chandmari P.S. Case No. 77 of 199 1 for offences under Sections10, 11, 12 and 13 of the Unlawful Activities (Preve ntion) Act, 1987 read with Sections 3 & 4 of the Terrorists and Disruptive Activ ities (Prevention) Act, 1987 dated 28.03.1991 and TADA Case No. 2 of 2004 and ke ep the same in a sealed cover in the Registry of this Hon’ble Court; and/or (ii) pass such other or further interim order or orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case. . The facts leading to the filing of the PIL may be briefly recapitulated at this stage: The Respondent No. 6, Sri Himanta Biswa Sarma, who is a Minister in the State Cabinet was involved in two P.S. Cases i.e. Panbazar P.S. Case No. 15 of 1 991 registered under Section 25(1)(A) of the Arms Act read with Sections 3 & 4 o f the Terrorists and Disruptive Activities (Prevention) Act, 1987 and Chandmar i P.S. Case No. 77 of 1991 registered under Sections 10, 11, 12 and 13 of the Un lawful Activities (Prevention) Act, 1987 read with Sections 3 & 4 of the Terrori sts and Disruptive Activities (Prevention) Act, 1987. In Chandmari P.S. Case No. 77 of 1991, on completion of the investigation chargesheet was submitted agains t the Respondent No. 6. As under the provisions of TADA sanction for prosecution was required to be obtained from the Director General of Police, the matter was put up before the said authority, who, by order dated 2.7.96 accorded sanction. At this stage, the Case Diary of Chandmari P.S. Case No. 77 of 1991 went missin g. Eventually, the learned Chief Judicial Magistrate, Kamrup by order dated 8.1. 99 directed for reconstruction of the Case Diary. The Case Diary was, accordingl y, reconstructed by one Sri Someswar Dutta, the Investigating Officer who had in itially investigated the case. After the Case Diary was reconstructed, one Sri B B Gogoi, Deputy Superintendent of Police was entrusted with the further investig ation, if any, in the case. Thereafter, one Sri Bibekananda Das, Deputy Superint endent of Police was entrusted with the task of investigation of the case. The a foresaid Investigating Officer submitted the final report in the case on 9.2.200 4 which apparently came to be placed before the learned Designated Court on 30.6 .2004. The learned Designated Court by order dated 11.10.2004, on the grounds an d reasons assigned, accepted the said final report dated 9.2.2004. Notice must also be had to the fact that the Respondent No. 6, as the writ petit ioner, had instituted a writ proceeding i.e. WP(C) No. 558/99 seeking directions from the Court for constitution of a High Powered Committee for review of the c ases against him in terms of the Supreme Court’s order passed in the case of Kar tar Singh -vs- State of Punjab, reported in (1994) 3 SCC 569. In the said writ p etition i.e. WP(C) No. 558/99, an interim order was passed on 11.2.99 halting fu rther progress of the two cases against the 6th Respondent. However, the writ pe tition was withdrawn on 31.3.2004. In so far as the Panbazar P.S. Case No. 15 of 1991 is concerned, the Inv estigating Officer, on completion of the investigation, filed chargesheet agains t two of the accused in the said case and seven accused including the 6th Respon dent were not sent up for trial. The said chargesheet is dated 23.2.2004. The De signated Court by order dated 10.3.2004 accepted the chargesheet submitted again st two of the accused and the prayer of the prosecution for discharge of the oth er accused including the 6th Respondent. In the aforesaid facts, one Sri Bhuban Gogoi had instituted a PIL before this Court i.e. PIL No. 16/2004 complaining inaction in the matter of investiga tion of the two cases against the Respondent No. 6. The aforesaid PIL was dismis sed by this Court by judgment and order dated 1.10.2004 holding, inter alia, tha t the petitioner in the said PIL had not come to the Court with upto date facts with regard to the investigation of the two cases in question. That apart, this Court by the order dated 1.10.2004 passed in PIL No. 16/2004 took note of the fa ct that as, in the meantime, final report had been submitted against the 6th Res pondent in both the cases such actions on the part of the investigating agency a nd the judicial orders as may have been passed or may be passed on the said fina l reports are liable to be challenged in accordance with the procedure laid down by the Code of Criminal Procedure. In respect of the judgment and order dated 1.10.2004 passed in PIL No. 1 6/2004, a local vernacular daily had published a news item imputing certain moti ves to one of the Judges who had constituted the Bench hearing the said PIL. The said news item being ex facie offensive, suo motu cognizance was taken of the s ame in contempt jurisdiction. The matter, thereafter, was registered as Contempt Case (Crl.) No. 8 of 2005. The aforesaid contempt proceeding was closed by an o rder dated 4.3.2008 holding that the benefit of doubt should be afforded to the author, printer and publisher of the news item. In para 38 of the judgment and o rder dated 4.3.2008 this Court, however, observed as follows: 38. Before parting with the record, we would like to observe that in view of the circumstances surrounding the allotment of land to Jerico Detergent Private Limited and the close proximity of the process of allotment with the judgment d elivered in PIL No.16 of 2004 we had seriously debated as to whether we should s uo motu re-open the proceedings in PIL No.16 of 2004. After due consideration we have thought it appropriate to exercise our restraint in the matter and leave t he same to be determined in an appropriate manner and at the appropriate time as and when an approach is made to this Court, if at all. Similarly, we had also d ebated as to whether the allotment of land to Jerico Detergent Private Limited s hould be re-opened by us on the authority of the judgment of the Apex Court in T arak Singh and another vs. Jyoti Basu and others, reported in (2005) 1 SCC 201 c ited by the respondents. For the same reason as alluded to earlier we have decid ed to exercise our restraint in the matter particularly in view of the fact that in Tarak Singh (supra) the approach to the Apex Court was in the form of a PIL specifically challenging the allotment of land to the concerned Judge. The above matter, therefore, in our considered view, should await an appropriate and adeq uate approach by any conscious citizen. While the matter was so situated, a former Member of Parliament, one Suk hdeo Paswan had instituted another PIL i.e. PIL No. 59/2009 on virtually the sam e cause of action seeking reliefs substantially similar to what have been sought in this PIL. However, by order dated 3.9.2009, on the prayer of the petitioner in PIL No. 59/2009, the same was allowed to be withdrawn after imposing a cost o f Rs. One Lakh on the petitioner in the PIL. At a stage when final orders were y et to be passed on the prayer of the petitioner in PIL No. 59/2009 for withdrawa l thereof, the present PIL has been filed on 1.9.2009 seeking the reliefs earlie r noticed. The petitioner in the present PIL is a Member of the Assam Legislative A ssembly belonging to the Asom Gana Parishad representing No. 75, Sootea Assembly Constituency. He claims to be a conscious citizen dedicated to upholding the ru le of law in the country. In the PIL averments have been made as to how due inve stigation of the two cases against the Respondent No.6 have been scuttled by exe rcise of extra legal force and pressures and, therefore, in the comprehension of the petitioner, appropriate directions should be issued for this Court for re-i nvestigation of the two cases and further consequential orders as specifically p rayed for. At the very outset, we had asked the learned counsel for the petitioner to explain why though the two cases against the 6th Respondent were closed by ju dicial orders passed on 10.3.2004 and 11.10.2004, the petitioner in the present PIL has chosen to remain silent all along and approached this Court at this bela ted stage (after nearly five years and, that too, at a stage when PIL No. 59/200 9 filed by Sukhdeo Paswan was sought to be withdrawn). No convincing explanation has been offered by the petitioner in this regard save and except that the peti tioner was not a MLA during the period 2001 to 2006 and that the petitioner was a victim of a bomb blast in the year 2007 which had left him severely injured an d handicapped. Though we have taken note of the aforesaid facts which have been stated before us without being specifically pleaded, we are of the view that the said facts by themselves would not be an adequate explanation for the highly be lated approach to this Court by a public spirited and duty conscious citizen whi ch the petitioner in the PIL professes to be. The judicial orders accepting the final report exonerating the Respondent No. 6 were passed, as already noticed, i n the year 2004. The minimum that could be expected from a person professing to be a champion of public rights is to approach the Court within a reasonable time of the cause of action that had accrued. Not only that, we have noticed that in the present PIL there is hardly any mention of the aforesaid two judicial order s, not to speak about any specific challenge against the said orders. While it is correct, as contended by Sri Pradhan on the authority of law laid down by the Apex Court in M/s Dehri Rohtal Light Railway Company Ltd. -vs- District Board, Bhojpur and Ors. reported in (1992) 2 SCC 598, that delay is no t an absolute principle for refusing adjudication on merits, in the said judgme nt the Apex Court has also held that Where the circumstances justifying the con duct exists, the illegality which is manifest cannot be sustained on the sole gr ound of laches . No such conduct which can satisfactorily explain the delay can be discerned in the present case. That apart, the delayed approach on the part of the petitioner in the PIL raises questions with regard to his bonafides in th e matter which cannot be overlooked or brushed aside by us. After all, entertain ing of a PIL must be justified on the touchstone of bonafides as the crucial tes t as laid down by the Apex Court in numerous decisions is engrafted in the princ iple of pro bono publico . Reference has also been made by Sri Pradhan to the leave’ granted by th e Division Bench of this Court in para 38 of the judgment and order dated 4.3.2 008 passed in Cont. Case (Crl.) No. 8/2005 to show that there was a reasonable c onnection between the allotment of land to the respondent No.7, M/s Zerico Deter gent Pvt. Ltd and the delivery of the judgment in PIL No. 16/2004. The materials placed before the Court in this regard are stated to be contained in the additi onal affidavit filed today on behalf of the petitioner. We have perused the said materials and what we find therefrom is that th e petitioner relies on the minutes of a meeting of the Land Advisory Committee d ated 12.8.2004 in which the 6th Respondent was a participant. It is in the afore said meeting of the Land Advisory Committee that a decision was taken to make al lotment of land in favour of the respondent No.7, M/s Zerico Detergent Pvt. Ltd. However, we find that the Land Advisory Committee which held the meeting on 12. 8.2004 consisted of 20 members including the 6th Respondent and we are told that as many as 329 different proposals for allotment of land were considered by the said meeting. Though a contention has been made to the effect that the land set tled with the respondent No.7 is wetland and under the Government policy in forc e wetlands are not available for settlement, no material has been laid to establ ish that the land in question at the time of settlement with the respondent No.7 was a wet land. The revenue document enclosed to the additional affidavit (cert ified copy of Chitha) classifying the land as ’jalatan’, which expression is cla imed to mean wetland, is of the year 1975. At the same time, in para 13 of the a dditional affidavit it has been admitted by the petitioner that with the passage of time many of the wetlands have turned into wasteland due to natural and geog raphical reasons. In the above circumstances, we are unable to accept what has b een contended to be a live connection between the allotment of land in favour of the respondent No.7 and the judgment delivered in Cont. Case (Crl.) No. 8/2005. Ordinarily and in the normal course we would have closed the PIL on the basis of our lack of satisfaction as recorded above. However, to satisfy our con science that the closure of the cases against the Respondent No.6 by the judicia l orders passed by the Designated Court has been done by application of acceptab le parameters of law, we had called for the records of TADA F.R. Case No. 2/2004 (Chandmari PS Case No. 77 of 1991) and TADA Sessions Case No. 2/2004 (Panbazar P.S. Case No. 15 of 1991). As the judicial orders dated 10.3.2004 and 11.10.200 4 passed in the aforesaid two cases are not specifically in issue in the present PIL, we refrain from recording an exhaustive analysis of the aforesaid two judi cial orders. However, our examination of the said orders has indicated the absen ce of any ex facie error or perversity in the said orders. Accordingly, we are o f the view that it will not be appropriate to re-open the two cases which are n early two decades old by this time, the delay of the petitioner notwithstanding. In view of the foregoing discussions and for the reasons alluded to in t he preceding paragraphs, we are of the view that the present PIL should not be e ntertained. We, accordingly, dismiss the PIL. Furthermore, as we entertain serio us doubts with regard to the bonafides of the petitioner in instituting the pres ent PIL, we deem it appropriate to impose cost of Rs. 50,000/- on the petitioner which amount will be credited to the account of the State Legal Services Author ity for providing legal aid. The petitioner has deposited a sum of Rs. 1,00,000/- with the Registry pursuant to our earlier order dated 3.9.2009. The balance amount shall be refunded to him without any delay.