R. A. No. 354 /2008 in LPA 417 /2007 Page 1 of 23 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 6.07.2012 + Review Application No. 354/2008 in LPA No.417/2007 Delhi Development Authority … Appellant versus M/s Marble Point & Ors. … Respondents Mr.Jayant Bhushan, Sr. Advocate ... Applicant Advocates who appeared in this case: For the Appellant :Mr. Mr.Rajiv Bansal Advocate. For Respondent : Mr. B.S.Mann Advocate For Applicant : Mr.Shanti Bhushan Sr. Advocate with Mr.Manish Bishnoi Advocate CORAM: HON'BLE MR. JUSTICE ANIL KUMAR HON'BLE MS. JUSTICE VEENA BIRBAL ANIL KUMAR, J. * 1. This order shall dispose of the application of Shri Jayant Bhushan Sr. Advocate against the order dated 20th August, 2008 disposing of the Letters Patent Appeal of the appellant and seeking review/recall of order by which order this court had also observed without referring the matter to Bar Council for appropriate action against applicant and without imposing any penalty or punishment that in all fairness, the applicant should not have appeared on behalf of the writ petitioners/respondents in the LPA as he had appeared on behalf of DDA/Appellant in the earlier writ petition filed by the same writ R. A. No. 354 /2008 in LPA 417 /2007 Page 2 of 23 petitioners in respect of allotment of alternative sites to them in Marble Market Papankala under the Scheme of Rehabilitation of Marble Traders who had been removed from the place of their business. 2. The factual matrix leading to this present application is detailed hereinafter. The respondents in the present LPA were carrying on the business of marble trading at Mehrauli- Badarpur Road since 1988. They were removed from their respective sites on 14th February, 1995 by the appellant/Delhi Development Authority on the ground that they were encroachers on public property. Subsequently, on 26th March, 1996, pursuant to the orders passed by the Supreme Court in M.C. Mehta v. U.O.I & Ors., 94 marble traders operating from the same locality were removed by the appellant. These 94 traders who were removed pursuant to the orders of the Supreme Court were allotted alternate sites by the appellant under the Scheme of Rehabilitation of Marble Traders in Pappankalan, however, the respondents herein were denied allotment. 3. The respondents preferred a writ petition being WP(C) 1674/1997 (earlier writ petition) seeking a writ of mandamus to DDA to allot alternate shops or sites to them on the terms and conditions as applicable to the other 94 persons who had been found to be eligible for allotment of sites. The prayer clause (in WP(C) No. 1674/1997) filed by the respondents was as follows – R. A. No. 354 /2008 in LPA 417 /2007 Page 3 of 23 “(a) Issue a writ of mandamus commanding the respondent to allot the alternative shop/plot to the petitioners on the terms and conditions as applicable to the other equally placed 94 persons alleged to be eligible for allotment by the DDA in the marble market at Papankala under the Scheme of Rehabilitation of the Marble traders removed/uprooted from Central South Ridge, Mehrauli- Badarpur Road in the scheme framed by the respondents and published in the Hindustan Times dated 7.3.1997.” 4. The earlier writ petition filed by the respondents was contested by the Delhi Development Authority and a counter affidavit dated 13th April, 1998 of the Director (CL) was filed by the applicant, Shri Jayant Bhushan Advocate. The writ petition was contested by the applicant on behalf of Delhi Development Authority contending interalia that the respondents are not entitled for allotment of alternative sites at the reserved price. The relevant portion of the affidavit filed on behalf of the DDA through the counsel/applicant is as under: "10. It is submitted that the petitioners, who are rank encroachers cannot take advantage of their own wrongs and claim allotment of alternative plots in view of their unauthorized encroachments. In any case, the petitioners cannot be equated with those who were removed after 26.3.1996 in pursuance of the directions of the Hon'ble Supreme Court and therefore, are not entitled to alternative allotment at reserved price." In the writ petition, the plea of allotment at reserved price was contested by the Delhi Development Authority through its Counsel, Shri Jayant Bhushan Advocate/applicant. R. A. No. 354 /2008 in LPA 417 /2007 Page 4 of 23 5. The said writ petition was, however, disposed of by an order dated 2nd April, 2003, the relevant portion of which is as follows – “In view of the aforesaid, it is directed that the petitioners should make application on the proper format used to make the application by those 94 persons and cases of the petitioners shall be considered on pari materia basis within a maximum period of three months from today. It is made clear that only those of the petitioners, who fulfill the said parameters and eligibility criteria would be entitled to the alternative allotment. The writ petition is disposed of with the aforesaid directions.” 6. Pursuant to the above said directions, the appellant/DDA constituted a committee to look into the matter of the entitlements of the respondents for alternate allotment, which committee submitted a report before the competent authority on 21st October, 2004 recommending allotment of the alternative plots to the respondents. The said recommendation was also approved by the Lt. Governor. Thereafter, the appellants vide letter dated 12th July, 2006 asked the respondents to deposit a sum of Rs.33,47,663/- as the initial amount constituting 35% of the premium of the alternative plot within 60 days of the issuance of the letter. 7. Aggrieved by the said letter the respondents preferred a writ petition being WP(C) No. 12038-47/2006 seeking a writ of certiorari to quash the letter dated 12th July, 2006 issued by the appellant to the extent that it raised a demand for the alternative plots allotted to the respondents at the rate of Rs.38,259/- per sq. m, on the ground that R. A. No. 354 /2008 in LPA 417 /2007 Page 5 of 23 the 94 marble traders who were similarly placed as the respondents were allotted similar plots for Rs.5200/- per sq. m. in 1997. 8. By an order dated 6th February, 2006 the learned single Judge quashed the demand letter dated 12th July, 2006 and held that the respondents were entitled to the allotment and the grant of leasehold rights @ Rs.5200/- per sq. m. By a subsequent order dated 21st February, 2006 the learned Judge had also directed the appellant to conduct draw of lots and to allot plots to the respondents within 8 weeks. 9. The appellant had impugned these two orders dated 6th February, 2006 and 21st February, 2006 in the present appeal. A Division Bench of this court by judgment dated 20th August, 2008 had dismissed the appeal. While pronouncing the judgment, it had come to the notice of the Court that Shri Jayant Bhushan, Senior Advocate who had been appearing for the respondents had filed an affidavit on behalf of the DDA/appellant in WP(C) No. 1674/1997, earlier writ petition. As mentioned before the said writ petition had been filed by the respondents herein against the DDA/appellant herein, seeking a writ of mandamus to DDA to allot alternate shops or sites to them on the terms and conditions as applicable to the other 94 marble traders who had been found to be eligible for allotment of sites. The DDA had R. A. No. 354 /2008 in LPA 417 /2007 Page 6 of 23 contested the allotment of alternative plots at reserve price to the respondents through the applicant. 10. This had prompted the Hon‟ble judges to record a separate order, along with the judgment dated 20th August, 2008, remarking “In our view, in all fairness, Mr. Jayant Bhusan should not have appeared on behalf of the respondents in this case especially when Mr. B. S. Mann claims that the factum of his having filed an affidavit on behalf of DDA had been brought to his notice.” It is this above mentioned observation in the order dated 20th August, 2008 that the applicant wants recalled/reviewed. 11. The applicant has sought review/recall of the order, on the ground that the two writ petitions were different as the LPA that was being heard by the Division Bench was against order passed in WP(C) No. 12038-47, whereas the applicant had appeared for the appellant/DDA in a totally different writ petition, being WP(C) No. 1674/97 titled as M/s Marble Point & ors. Vs Lt. Governor & Delhi Development Authority 12. It had been contended by the applicant that the issues involved in the two writ petitions were totally different. According to the applicant, the earlier writ petition was concerned with the entitlement of the respondents for allotment of alternative plots whereas the second writ R. A. No. 354 /2008 in LPA 417 /2007 Page 7 of 23 petition was concerned with the rate at which the alternative plot was allotted to the respondents. The applicant alleged that there were no rules which prevented a counsel from appearing for opposite parties in different litigations. It has been asserted by the applicant that the Rule 33 of the Standards of Professional Conduct and Etiquette framed by the Bar Council of India is applicable only when an advocate appears in the very same suit or appeal for opposite parties, in which suit or appeal the counsel had drawn pleadings or acted for the different party. It has also been contended that none of the parties had objected to his appearing on behalf of the respondents in the present Letters Patent Appeal though he had been contesting the plea of respondents to allot them alternative plots at reserve price in the earlier writ petition on behalf of Delhi Development Authority which writ petition was filed by the respondents. According to applicant since no party was aggrieved by the appearance of the applicant, there was no occasion for the Court to consider the propriety of the applicant appearing in the matter on behalf of the respondents though he had appeared on behalf of appellant/Delhi Development Authority in the earlier writ petition contesting the plea of respondents for allotment of alternative plot at reserve price. 13. The learned counsel has relied on (2005) 12 SCC 238, Krishna Kumar Mittal Vs Parameshwar Dayal Gupta. The counsel for the applicant has contended that in this case a lawyer had appeared in the R. A. No. 354 /2008 in LPA 417 /2007 Page 8 of 23 same case for opposite parties. The bar Council had exonerated him of professional misconduct and the Supreme Court had also concurred with the view of bar Council and therefore the remarks about the petitioner should be expunged. 14. The Counsel for the applicant has vehemently argued that it is a basic principle of justice that no adverse order should be passed against a party without hearing him. It is contended that before deprecating the conduct of the applicant, he ought to have been heard by the Court. Reliance was placed on 2009 (1) SCALE 745, Asit Kumar Kar Vs State of West Bangal. The learned counsel for the applicant has also contended that as a general principle for the proper administration of justice, derogatory remarks ought not to be made against counsel or against a person whose conduct comes into consideration, unless it is absolutely necessary. The learned counsel has referred to AIR 1990 SC 1737, A.M.Mathur Vs Pramod Kumar Gupta. The learned counsel for the applicant has also relied on AIR 1964 SC 703, The State of Utter Pradesh Vs Mohammad Naim. 15. The application is contested by the DDA/non-applicant contending that the issue in both the writ petitions is inextricably inter- linked and overlapping to a large extent, if not the same. Relying on the prayer clauses of both the writ petitions it has been averred that the issue in the first writ petition was whether the respondents were R. A. No. 354 /2008 in LPA 417 /2007 Page 9 of 23 entitled to allotment of alternative plot and the price at which the allotment was to be made and the issue in the second writ petition was whether the respondents would be entitled to allotment at pre- determined price at which the allotment had been made to the other 94 marble traders. The non applicant/ Delhi Development Authority has also contended that the Court, in order dated 20th August, 2008, was merely expressing an opinion, which cannot be construed as castigating or chastising the applicant and therefore, there was no requirement to give notice to the applicant before recording the said observation. The prayer clause in WP(C) No. 1674/1997, earlier writ petition is as follows: – “(a) Issue a writ of mandamus commanding the respondent to allot the alternative shop/plot to the petitioners on the terms and conditions as applicable to the other equally placed 94 persons alleged to be eligible for allotment by the DDA in the marble market at Papankala under the Scheme of Rehabilitation of the Marble traders removed/uprooted from Central South Ridge, Mehrauli- Badarpur Road in the scheme framed by the respondents and published in the Hindustan Times dated 7.3.1997” Whereas the prayer clause in WP(C) No. 12038-47/2006, subsequent writ petition is as follows – “A. Issue an appropriate writ(s), order(s) or direction(s) in the nature of the certiorari quashing/setting aside letter dated 12.7.2006 (Annexure P-1 colectively) issued by the respondent to the petitioners to the extent of demand of the cost of the alternative plots @ Rs.38,259/- (Provisional)per sq. mtr. In respect of the alternative plots for which the R. A. No. 354 /2008 in LPA 417 /2007 Page 10 of 23 petitioners have been found to be eligible on the same parameters and criteria at which allotment has already been made to the other traders in lieu of the removal of the respective marble shops of the petitioners by the respondent. B. Issue an appropriate writ(s), order(s) or direction(s) in the nature of mandamus, directing the respondent to allot the alternative plots measuring 250 sq. mtr. to each of the petitioners in Sector 20 Dwarka at the same pre- determined rate @ Rs.5200/- per sq. mtr at which the allotment has been made to other similarly situated traders.” 16. The learned counsel for the DDA has relied on (1983) 4 SCC 255, Chandra Shekahr Soni Vs Bar Council of Rajasthan and ors.; (2004) 10 SCC 148, Dayashankar Vs O.T.Aldons; (2002) 1 SCC 100, Roshan Deen Vs Preeti Lal in support of the contention of the Delhi Development Authority that the remarks made against the counsel/applicant who had earlier been representing appellant /DDA and later on he appeared on behalf of the private respondent are not liable to be expunged as has been sought by him. 17. The learned counsel for the appellant/DDA has also contended that the observation made against the applicant is not liable to be expunged on the ground that no notice was given to him. He has contended that though notice was not given to him, however, pursuant to the application of the applicant, he has been heard and he has not been able to justify that the two matters were not substantially R. A. No. 354 /2008 in LPA 417 /2007 Page 11 of 23 different. Rather the cause of action of two matters in which the applicant had appeared, first for DDA and thereafter for private respondents was substantially the same. The applicant despite being cautioned about it by the briefing counsel had appeared for the opposite party and he has not been able to justify his misconduct. In the circumstances, it is contended that the applicant is not entitled for review/recall of observations made against him and observations made against the applicant should not be expunged by this Court. The learned counsel for the appellant/DDA has also relied on (2009) 8 SCC 106, R.K.Anand Vs Registrar, Delhi High Court. 18. This Court has heard the learned counsel for the parties. On perusal of the above extracted prayer clauses, it is apparent that the issues in the two writ petitions cannot be said to be different as claimed by the applicant. In WP(C) No. 1674/1997 the respondents herein had not sought allotment of alternative plots, but had also sought allotment on the same terms and conditions as had been applicable to the other 94 marble traders who had been allotted alternative sites by the appellant/DDA. The Delhi Development Authority through the applicant had contested the pleas of the respondents and had contended that the respondents are not entitled for allotment of alternative plots at reserve price. The issue agitated by the respondents in WP(C) No. 12038- 47/2006, the petition out of which the present appeal arose, was that they had been allotted alternative plots at a rate much higher than the R. A. No. 354 /2008 in LPA 417 /2007 Page 12 of 23 rates at which alternative plots were allotted to the other 94 marble traders. It is evident that the matter agitated in the second writ petition was also substantially in issue in the first writ petition, rather the issue of price was the same in both the writ petitions filed by the respondents. 19. From the record it is apparent that in the earlier writ petition which was filed by the private respondents, the applicant was the counsel for DDA and he had settled the counter affidavit dated 13th April, 1998. In the said counter affidavit in para 10 it was categorically asserted that the private respondents are not entitled to alternative allotment at reserve price. Thus, the issue in earlier writ petition was also whether the private respondents were entitled to allotment of alternative plot at reserve price or not. After the alternative allotment was made to private respondents, the dispute again had arisen whether the private respondents were liable to pay the rate at which alternative plots were allotted to them or they were liable to pay reserve price only, as was claimed from other marble dealers. In the circumstances the plea of the applicant that the subsequent writ petition filed by private respondents was entirely different from the first writ petition which was filed by them, cannot be accepted in the present facts and circumstances. R. A. No. 354 /2008 in LPA 417 /2007 Page 13 of 23 20. Perusal of the precedents relied on by the learned counsel for the applicant shows that they are apparently distinguishable. In Krishna Kumar Mittal (supra) an advocate after a number of years had appeared in the same litigation of the same property for the opposite party and consequently a complaint for professional misconduct for changing sides was filed. The advocate had withdrawn on behalf of opposite party as soon as it was pointed out by the complainant and consequently the bar Council had exonerated the advocate from the charges of professional misconduct. The Supreme Court also did not interfere with the decision of the Bar Council in the facts and circumstances. However in the present case review applicant, even after it was brought to his notice that he was the counsel for the DDA and had opposed the pleas of the respondents for allotment of alternative plots at reserve price, insisted on appearing for the private respondents on the plea that earlier writ petition was different. The applicant persisted that he can represent the opposite party/private respondents on the tenuous ground that the matter pertains to different aspect of the same subject matter. In the review/recall application also the applicant has not shown any remorse or has sought indulgence of this Court. In the circumstances, the applicant cannot rely on the ratio of the Krishna Kumar Mittal (supra) where the counsel on realizing his mistake immediately had withdrawn and had stopped representing the opposite party. In the said case counsel had appeared on behalf of the opposite party after considerable time in contradistinction to the present case, R. A. No. 354 /2008 in LPA 417 /2007 Page 14 of 23 where the briefing counsel of the respondents had even brought it to the notice of the applicant. 21. The Supreme Court in Asit Kuamr Kar (supra) relied on by the applicant had held that there is a distinction between a petition under article 32, a review petition and a recall petition. It was held that while in a review petition the court considers on merits whether there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls the order which is passed without giving an opportunity of hearing to an affected party. In this case the order passed cancelling the licenses of various persons without giving any opportunity to them, was recalled. However, in the present case on an application by the applicant, his counsel has been heard extensively on various dates. In the circumstances on the basis of the ratio of the said case, the observation made by this Court on 20th August, 2008 against the applicant are not liable to be recalled nor the said order is liable for review as has been sought by the applicant in the facts and circumstances and a futile attempt has been made by the applicant to contend that the subject matter of two cases had been entirely different. 22. In A.M.Mathur (supra) relied on by the applicant, the Court while dismissing a review petition had observed that Advocate General of the state did not act honestly and bona fide in briefing the then Chief R. A. No. 354 /2008 in LPA 417 /2007 Page 15 of 23 Minister. It was also remarked that he did not act befitting his status and he did not had the courage to face the situation in the Court. It was held that since the High Court had no jurisdiction to entertain the review petition, the judge ought not to have commented on the professional conduct of the advocate general and that too without an opportunity to him. It was further observed that judicial restraint and discipline are necessary for orderly administration of justice and this should be the constant theme of judges. With these observations the remarks against the Advocate General were expunged. However, in the instant case the Court had made observation against the counsel/applicant while disposing of the Letters Patent Appeal. It cannot be contended by the applicant that the Court was not competent to decide the Letter Patent Appeal in contradistinction to the case relied on by the applicant in which remarks were made against the Advocate General in a review petition which could not be entertained. If the Court has observed the breach of a Rule, the applicant cannot contend that the Court ought not to have mentioned about it. 23. While disposing of a criminal appeal, sweeping and general observations were made against the entire police force though the case related to only one police officer, in AIR 1964 SC 703, The State of Utter Pradesh Vs Mohammad Naim. In the said case it was held that it is judicially recognized that in the matter of making disparaging remarks against the persons or authorities whose conduct comes into R. A. No. 354 /2008 in LPA 417 /2007 Page 16 of 23 consideration before Courts of law, in cases to be decided by them, it is relevant to consider (a) whether the party whose conduct is in question is before the Court and he has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on the conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to comment or observe on that conduct. It was also held that judicial pronouncement must be judicial in nature and should not normally depart from sobriety, moderation and reserve. The applicant was before the Court and had appeared on behalf of private respondents on 18th September, 2007; 24.3.2008; 28.7.2008; 6.8.2008.