No Acts & Articles mentioned in this case
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.8152 of 2013
===========================================================
1. Narendra Mishra S/O Late Shiv Shankar Mishra,Resident of
Mohalla - East Anandpuri, P.S. S.K. Puri, Distt. - Patna
.... .... Petitioner
Versus
1. The State Of Bihar Through The Commissioner Cum Secretary,
Urban Development Department, Government Of Bihar, New
Secretariat, Bailey Road, Patna
2. The Chief Administrator, Patna Municipal Corporation, Maurya
Lok Complex, PS. - Kotwali, Distt. - Patna
3. The Deputy Administrator, Patna Municipal Corporation,
Maurya Lok Complex, PS. - Kotwali, Distt. - Patna
4. The Executive Officer, Patna Municipal Corporation, New
Capital Circle, Patna
5. The District Magistrate, Patna
6. The Sub - Divisional Officer, Patna Sadar, Distt. Patna
7. The Circle Officer, Sadar Circle, Patna
8. Sri Shailendra Singh ( Builder ), Maa Sharda Complex 1st Floor
East Boring Canal Road, Patna
9. Sri Parichhan Singh S/O Late Sri Ramjee Singh Resi dent Of
Mohalla - Anandpuri, P.. Sri Krishnapuri, Distt.- Patna (land
owner of the disputed site)
10. The Registrar, Co-operative Society, Bihar
.... .... Respondents
With
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Civil Writ Jurisdiction Case No. 9574 of 2012
===========================================================
1. Sunil Kumar Son Of Late Nand Kishore Prasad Singh Resident
Of Mohalla- 7, H.F., Flat No. 2/29. Resident of H.I.G.
Bahadurpur, Housing Colony, P.S. Agam Kuan, District - Patna,
Pin - 800026
2. Shyam Nandan Prasad Sharma Son of Late Satya Narayan
Thakur Resident of Mohalla- 7, H.F. Flat No. 2/38. Resident of
H.I.G. Bahadurpur, Housing Colony, P.S. Agam Kuan, District -
Patna, Pin - 800026
3. Anand Shankar Son of Sri Surendra Prasad Singh Resident of
Mohalla- 7, H.F. 2/20. Resident of H.I.G. Bahadurpur, Housing
Colony, P.S. Agam Kuan, District - Patna, Pin - 800026
4. Satrughan Prasad Singh Son Of Sri Lakhan Lal Resident Of
Mohalla- 2/27. 7 H.F. Resident Of H.I.G. Bahadurpur, Housing
Colony, P.S. Agam Kuan, District - Patna, Pin - 800026
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
2/135
5. Vishal Kumar Son Of Late Kanhaiya Prasad Singh Resident Of
Mohalla- 2/24. 7 H.F. Resident Of H.I.G. Bahadurpur, Housing
Colony, P.S. Agam Kuan, District - Patna, Pin - 800026
.... .... Petitioner/s
Versus
1. The State Of Bihar Through Municipal Corporation Bihar, Patna
2. The Municipal Commissioner, Patna Nagar Nigam, Maurya Lok
Complex, 2nd Floor, Block -C, Patna - 1
3. The Executive Engineer, Patn a Nagar Nigam, Maurya Lok
Complex, 2nd Floor, Block-C, Patna - 1
4. The Executive Officer, Kankarbagh Anchal, Patna Nagar Nigam,
Near Kankarbagh Tempo Stand, Patna - 26
5. The Ward Commissioner, Ward No. 46, Panitanki, Bhootnath
Road, Kankarbagh, Patna-26
.... .... Respondent/s
With
===========================================================
Civil Writ Jurisdiction Case No. 11781 of 2014
===========================================================
1. Ranjit Trivedi S/o Sri Fanish Trivedi resident of Mohalla - Priya
Nagar, Sourth of Bailey Road, P.S. Rupaspur, Danapur, District -
Patna
.... .... Petitioner/s
Versus
1. The State of Bihar through the Commissioner cum Secretary,
Urban Development Department, Government of Bihar, New
Secretariat, Bailey Road, Patna
2. The Commissioner, Patna Municipal Corporation, Patna
3. The Chief Administrator, Patna Municipal Corporation, Maurya
Lok Complex, P.S. Kotwali District Patna
4. The Deputy Admi nistrator, Patna Municipal Corporation,
Maurya Lok Complex, P.S. Kotwali District Patna
5. The Executive Officer, Patna Municipal Corporation, New
Capital Circle, Patna.
.... .... Respondent/s
With
===========================================================
Civil Writ Jurisdiction Case No. 16050 of 2014
===========================================================
1. Ram Udar Singh, S/o. late Ram Sagar Singh, R/o. Vashishtha
Vihar Colony, Municipal Cor poration, Ward No.11, P.O.
Anisabad, P.S. Phulwari Sharif, District- Patna.
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
3/135
.... .... Petitioner/s
Versus
1. The State of Bihar
2. The Principal Secretary, Urban Development Department,
Government of Bihar, Patna
3. The District Magistrate, Patna
4. The Patna Municipal Corporation, through the Commissioner,
Patna Municipal Corporation, Patna
5. The Executive Officer, New Capital Division,Patna Municipal
Corporation, Patna.
.... .... Respondent/s
With
===========================================================
Civil Writ Jurisdiction Case No. 20570 of 2012
===========================================================
1. Suresh Pd. Yadav S/O Late Kishun Rai Resident Of Village -
Ilahibag, P.O- Bairia, P.S- Gopalpur, District- Patna.
2. Rakesh Kumar S/O Late Sheojee Singh Resident Of Village +
P.O- Bairia, P.S- Gopalpur, District-Patna.
3. Dr. Brahmanand Prasad S/O Late Ramnandan Singh Resident
Of Village + P.O- Manoharpur Kachhuara, P.S - Gopalpur,
District- Patna.
4. Arun Kumar S/O Late Ramsalik Rai Resident Of Village + P.O -
Manoharpur, Kachuara, P.S- Gopalpur, District- Patna.
5. Dilip Kumar Singh S/O Late Rajdeo Singh Resident Of Village-
Chak Bairia, P.O- Bairia, P.S- Gopalpur, District- Patna.
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. The Commissioner, Departement Of Urban Development &
Housing, Govt. Of Bihar, Patna.
3. The Principal Secretary, Department Of Urban Development &
Housing, Govt. Of Bihar, Patna.
4. The Bihar State Pollution Control Board, Bihar, Patna,
Represented Through Its Secretary, Pollution Control Board, B
Ihar, Beltron Bhawan, Shashtri Nagar, Patna.
5. The Secretary, Bihar State Pollution Control Board, Bihar
Beltron Bhawan, Shashtri Nagar, Patna.
6. The Patna Municipal Corporation, Represented Through Its
Cheif Municipal Officer, Patna Municipal Corporation, Patna.
7. The Empowered Standing Committee, Patna Municipal
Corporation, Patna.
8. The Mayor, Patna Municipal Corporation, Patna.
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
4/135
9. The Circle Officer, Sampathchak, District- Patna.
10. Mr. Nirbhay Kumar Singh, Pramukh, Panchayat Samiti -
Sampatchak, Patna.
11. The Executive Officer- Cum- Block, Development Officer,
Sampatchak, Patna.
12. The Mukhiya Of Panchayat Raj - Bairia Karnpura, Within The
Block- Sampatchak, District- Patna.
13. The Union Of India, Represented Through The Cabinet
Secretary, Ministry Of Pollution & Environment, Govt. Of India,
New Delhi.
14. The Cabinet Secretary, Ministry Of Pollution & Environment,
Govt. Of Bihar, New Delhi.
.... .... Respondent/s
===========================================================
Appearance :
(In all cases)
For the State- respondents: Mr. R.B. Mahto, Advocate General
Mr. Lalit Kishore, PAAG
Mr. D.K. Sinha, AAG-2
Mr. Roy Shivaji Nath, AAG-3
Mr. Shambhu Nath, AC to AAG-3
Mr. Ranjit Kumar Pandey, Advocate
For the Patna Municipal Corporation: Mr. Y. V. Giri, Sr. Advocate
Mr. H.S. Himkar, Advocate.
(In CWJC No. 8152 of 2013)
For the Petitioner/s : Mr. Suresh Prasad Singh No.1, Adv.
Mr. Vitesh Kumar Singh, Advocate
Mr. Sarvan Kumar, Advocate
(In I.A. No. 9508 of 2014) Mr. Pankaj Kumar Jha, Advocate
Mr. Santosh Kumar, Advocate
Mr. Madhurendra Sharma, Adv.
(In I.A. Nos. 324 and 9317 of 2014):Mr.S.B.K. Mangalam, Adv.
(In I.A. No. 59 of 2015) Mr. Vinod Kanth, Sr. Adv.
(In I.A. No. 108 of 2015) Mr. Prasoon Sinha, Adv.(in person)
(In CWJC No. 9574 of 2012)
For the Petitioner/s : Mr. Satya Ranjan Sinha, Adv.
Mr. Sri Nath Pathak, Adv.
Mr. Sandeep Kumar, Adv.
(In I.A. No. 9508 of 2014)
For the Intervenor: Mr. Praveen Kumar, Adv.
(In I.A. No. 9508 of 2014) Dr. Kumar Amitesh Chandra,Adv.
For the Intervenor:
For the Patna Municipal Corporation: Mr. Prasoon Sinha, Advocate
Mr. Manish Kumar No.2, Adv.
(In CWJC No. 11781 of 2014)
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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For the Petitioner/s : Mr. Ratan Kumar
For the Respondent/s : Mr. Roy Shivaji Nath, AAG-3
(In CWJC No. 16050 of 2014)
For the Petitioner/s : Mr. Anil Kumar
For the Respondent/s : Mr. AJAY, GA12
(In CWJC No. 20570 of 2012)
For the Petitioner/s : Mr. S.P. Srivastava, Advocate.
For the Respondent/s :
===========================================================
CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI
AND
HONOURABLE MR. JUSTICE V.N. SINHA
AND
HONOURABLE MR. JUSTICE NAVANITI PRASAD
SINGH
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE I. A. ANSARI)
Date: 30.01.2015.
Compelled to do what is imperative so as
to adhere to, and maintain, judicial discipline and
impelled by the call of duty, I, with some degree of
sadness and a deep sense of anguish, pen down my
views and conclusions in the context of the facts and
attending circumstances, which have led to the
constitution of this Full Bench. Strictly speaking,
administration of justice inheres judicial discipline. No
wonder, therefore, that while administering justice,
judicial discipline is needed to be adhered to.
2. These two Public Interest Litigations
(PIL) and the Interlocutory Applications filed therein
have been ordered to be listed before this Full Bench
so as to arrest apparently conflicting directions
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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emanating from two Division Benches of this Court in
relation to a singular matter, which has arisen from
the State Government‟s Resolution No. 17184, dated
12.12.2014, placing, in exercise of its powers under
Rule 3(1)(a) of All India Services (Discipline & Appeal)
Rules, 1969, under suspension, Shri Kuldip Nara yan,
I.A.S., who had been functioning at the time of his
suspension, as Commissioner, Patna Municipal
Corporation, and the consequential order, contained in
State Government‟s Resolution No. 3966, dated
15.12.2014, directing Shri Kapil Ashok Shirsit, I.A.S.,
Additional Municipal Commissioner, Patna Municipal
Corporation, to discharge the functions of the Chief
Executive Officer-cum-Municipal Commissioner of the
Patna Municipal Corporation.
BACKGROUND FACTS
3. The material facts, which led to the
constitution of this Full Bench, may, in brief, be set
out as under:-
(i) On 01.11.2012, a PIL was filed by
Suresh Prasad Yadav and others, being C.W.J.C. No.
20570 of 2012 (referred to, for convenience, as `first
PIL’), bringing to the notice of this Court the
grievances of the people, in general, and residents of
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
7/135
village Sampatchak, Bairiya, P.S. Gopalpur, District
Patna, in particular, with regard to dumping of solid
municipal waste causing environmental pollution and
health hazard. As the same was being allegedly done
at the behest of the Patna Municipal Corporation, the
Patna Municipal Corporation was made one of the
party-respondents through the Chief Executive Officer-
cum-Municipal Commissioner. Some of the orders
passed in these proceedings, insofar as they are
relevant, are quoted hereunder:-
―17.05.2013- A
counter affidavit is filed today on
behalf of the Patna Municipal
Corporation affirmed by Sri Kuldip
Narayan, Municipal Commissioner.
We have gone through the same.
The Corporation
does not appear to be realizing the
gravity of the situation giving the
seriousness the matter deserves.
Time is running out. Further delay
would in our opinion create an
irretrievable and grossly hazardous
situation. The Corporation
acknowledges possession of the
lands having been given to it.
Surprisingly it then questions its
own acts with regard to
construction raised and objections
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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by such occupants. The counter
affidavit reflects muddled thinking
and is completely lacking in clarity
of vision, thought and action.
We were inclined
to issue certain directions to the
Corporation today, but refrain from
doing so at the request of the
Principal Additional Advocate
General. It is submitted that a
proper counter affidavit shall be
filed with regard to necessary steps
to be taken for solid waste
management in the form of a time
schedule to be strictly adhered to.
We are also
informed that the matter had
engaged the attention of the court
earlier also in another application,
we request the Principal Additional
Advocate General to bring any such
earlier orders on record also.
Put up on
20.06.2013 at 2:15 p.m.
Sd/- Navin Sinha, J.
Sd/- Shivaji Pandey,J ―
“21.08.2013- xxx xxx
xxx xxx
xxx xxx
xxx xxx
xxx xxx
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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xxx xxx
5. From the facts narrated
above, it is quite evident that the
statutory authorities established by
the State Government under Patna
Municipal Corporation Act or the
Union of India under Pollution
Control Act have failed to discharge
their legal duty within a reasonable
time. In the instant case, lan d
acquisition proceeding having been
completed on 29.09.2008 it is high
time that the authorities ought to
have established such plant.
Authorities having failed to
establish incinerator plant because
of inaction on their part, which is
likely to cause serious situation in
the city, we call upon the Chief
Secretary, Government of Bihar to
interact with the Urban, Revenue
Secretary, Government of Bihar
and the Secretary, Ministry of
Forest and Environment,
Government of India to ensure that
the necessary clearance from the
Ministry of Forest and
Environment, Government of India
as also the Board is issued within
two weeks from today.
xxx xxx
xxx
xxx xxx
xxx
Sd/- V. N. Sinha, J.
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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Sd/- Rajendra Kumar
Mishra, J.”
―24.09.2014
xxx xxx
xxx
xxx xxx
xxx
In view of the fact that
no satisfactory answer has been
given on behalf of respondent Nos.
6, 7 and 8 to the queries made by
us, we hereby, in the interest of
justice, direct respondent No.6 to
appear, in person, in this Court, at
10.30 AM, along with all relevant
records, tomorrow, i.e. on
25.09.2014, so that necessary
effective order can be passed.
Sd/-I. A. Ansari,
J.
Sd/- Anjana
Mishra, J.”
―25.09.2014- Heard learned counsel
appearing for the parties.
Mr. Kuldip Narayan,
Commissioner, Patna Municipal
Corporation is present.
In response to the
queries, which have been made by
us, what transpires is that the
allotment of work, in question, to a
private party requires approval of
the Cabinet and this subject had
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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not been included in any of the
agenda of the Cabinet so far. There
appears to be not only serious
lapses on the part of the Chief
Secretary and the other officials of
the State Government, but this
Court appears to have been,
intentionally and deliberately,
misled to pass various orders,
when the respondents knew very
well that the allotment of work to
any private party would require
approval of the Cabinet. However,
we do not express any definite
opinion, at this stage, on the
manner in which the respondents
have conducted themselves in the
proceedings of this P.I.L.
On the request made
on behalf of respondent No.5, we
direct that the P.I.L. be listed, for
order, on 14th October, 2014.
Considering the matter
in entirety and in the interest of
justice, personal appearance of Mr.
Kuldip Narayan, Commissioner,
Patna Municipal Corporation, is
hereby dispensed with until further
orders.
Sd/-I.A. Ansari, J.
Sd/- Anjana Mishra, J.”
(ii) In course of time, when the first
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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PIL was, again, taken up on 15.12.2014, it was
brought to the notice of the Division Bench that the
State Government had taken steps for suspending the
Municipal Commissioner, Patna Municipal Corporation
and show cause notices had already been issued in
this regard. It was also brought to the notice of the
Division Bench that Shri Kuldip Narayan, who was the
Municipal Commissioner -cum- Chief Executive Officer,
Patna Municipal Corporation, and representing the
Patna Municipal Corporation in the first PIL, had been
suspended by the State Government by order, dated
12.12.2014, and in his place, Shri Kapil Ashok , the
senior most officer serving the Patna Municipal
Corporation, had been directed by the Government,
vide order, dated 15.12.2014, to function as the
Municipal Commissioner -cum- Chief Executive Officer,
Patna Municipal Corporation.
(iii) In the light of the submissions
so made, the Division Bench observed thus,
―15.12.2014- xxx xxx
xxx
xxx xxx
xxx
It has, now, been
brought to the notice of this Court
that the State Government has
taken steps for superseding Patna
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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Municipal Corporation and show
cause notices have already been
issued in this regard. We do not
feel inclined to make any further
comments on this aspect.
xxx xxx
xxx
xxx xxx
xxx
As far as suspension
of the former Municipal
Commissioner, namely, Mr. Kuldip
Narayan, is concerned, we refrain
from making any comments on
his suspension; obviously,
because as far as his
suspension is concerned, the
same cannot be made subject
matter of a PIL and he may
challenge his suspension order,
if he is so advised, by
appropriate writ petition. For
the present, therefore, and
until the time a permanent
arrangement is made by the
State Government by
withdrawing suspension of Mr.
Kuldip Narayan , functions of
the Corporation, as the
submissions made on behalf of
the State Govt. and the
Corporation indicate, have to
be managed by Mr. Kapil
Ashok.
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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Sd/-I.A. Ansari, A.C.J.
Sd/- Samrendra Pratap Singh, J.‖
(Emphasis is supplied)
(iv) The import of the said order,
dated 15.12.2014, passed by the Division Bench, in
the first PIL, was clear. The matter, in relation to
suspension of Shri Kuldip Narayan, w as not to be
made a subject of a PIL, making it abundantly clear
that Shri Kuldip Narayan could challenge the same in
appropriate writ proceedings. Secondly, till the
Government withdrew the said order of suspension,
the Patna Municipal Corporation would be managed by
Shri Kapil Ashok.
(v) It may be pointed out that what
was specifically noted in the order, dated 15.12.2014,
passed in the first PIL, is that Shri Kapil Ashok was
given time by the Court to acquaint himself with the
affairs of the Patna Municipal Corporation and the
matter was adjourned to 19.12.2014. It may be
noted here that this order was passed in presence of
the counsel for the writ petitioners, State, the Patna
Municipal Corporation and the Commissioner, Patna
Municipal Corporation, none of whom have chosen to
doubt or challenge this order. In fact, the order, dated
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
15/135
15.12.2014, aforementioned has never been
challenged.
(vi) It may, now, be borne in mind
that on 16.04.2013, another writ petition was filed by
one Narendra Mishra, which gave rise to a PIL, bearing
C.W.J.C. No. 8152 of 2013, wherein the petitioner‟s
grievance was in relation to a particular multi-storied
building being constructed in violation of the Building
Bye-laws within the territorial area of the Patna
Municipal Corporation and, in spite of complaint
alleged to have been made in this regard, nothing was
being done by the Patna Municipal Corporation. The
Division Bench, dealing with the latter PIL, which we
would refer to as „second PIL‟, expanded the scope of
the writ pe tition to cover all multi -storied
constructions being done within the territorial
jurisdiction of the Patna Municipal Corporation and, on
08.07.2013, passed the following order :-
―08-07-2013- This matter
has been listed at our instance
today as during finalization of the
order dated 02.07.2013 we felt the
need for an additional direction
with regard to the office of the
Municipal Commissioner, Patna.
Heard Counsel for
the parties. We also take note of
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
16/135
the observations made in the case
of Arun Kumar Mukherjee (supra)
that frequent transfers of the then
Vice Chairman, Patna Regional
Development Authority, had
hindered enforcement of buildings
laws. We therefore, direct that the
present Municipal Commissioner,
Sri Kuldip Narain, IAS, shall not be
transferred without the permission
of the Court, both for the purpose
of continuity and answerability.
Sd/- Navin Sinha, J.
Sd/- Vikash Jain, J.‖
(vii) It may be noted that without
moving this Court for either vacating the directions
given by the order, dated 08.07.2013, or modifying
the same or for allowing Shri Kuldip Narayan to be
withdrawn and replaced by some other Officer, the
State approached the Supreme Court against the said
order, dated 08.07.2013, passed in the second PIL.
The Supreme Court declined to interfere and directed
the State, if so advised, to move the Division Bench of
this Court and if aggrieved by that order, giving liberty
to the State to approach the Supreme Court.
(viii) On 08.12.2014, in the second
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
17/135
PIL, an interlocutory application, bearing I. A. No.
9094 of 2014, was filed by one Amitesh Kumar, son of
Shri Lalan Prasad Singh, for intervention seeking
interim direction alleging, inter alia, that the father of
Amitesh Kumar, namely, Shri Lalan Prasad Singh, an
Executive Engineer of Kankarbagh Division of the
Patna Municipal Corporation, was being proceeded
against by Vigilance Department of the State and, in
this connection, a vigilance raid was conducted on
02.12.2014 and pursuant thereto, a First Information
Report was lodged giving rise to Vigilance Case No. 94
of 2014.
(ix) On 09.12.2014, the Division
Bench, dealing with the second PIL, took up I. A. No.
9094 of 2014 also and passed orders. The relevant
part of the order passed therein is quoted hereunder:
“09.12.2014.
xxx xxx
xxx
xxx xxx
xxx
I.A.No.9094 of 2014
Having considered the
averments made in I. A. No. 9094
of 2014, we have asked Shri Rama
Kant Sharma, learned Senior
Counsel, to seek instruction in the
matter. Put up this matter on 19th
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
18/135
December, 2014. Meanwhile, no
coercive step shall be taken
against Sh ri Lalan Prasad
Singh, Executive Engineer,
Patna Municipal Corporation
but he should appear before
the authority of the vigilance
and submit his show cause .
This order is being passed
in connection with Vigilance Case
No. 94 of 2014.
Sd/- V. N. Sinha, J.
Sd/- Prabhat Kumar Jha, J.”
(Emphasis is added)
(x) By order, dated 09.12.2014, the
second Division Bench, in the second PIL, thus,
directed that no coercive steps be taken, in the
vigilance case, against Sri Lalan Prasad Singh, even
though Sri Lalan Prasad Singh was not even a party to
any of the proceedings in the second PIL nor could he
claim the protection of the order, dated 08.07.2013,
passed, in the second PIL, whereby transfer of Sri
Kuldip Narayan, Municipal Commissioner, without leave
of the Court, had been ordered. The effect of the
directions, given, in the second PIL, in favour of Sri
Lalan Prasad Singh, was that he could neither be
arrested nor could any search or seizure be carried out
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
19/135
against him. Let it be noted here that there is no further
order whatsoever on the records of the second PIL
between 09.12.2014 and 15.12.2014.
(xi) As noted above in the first PIL, in the
pre-lunch session of the Court, on 15.12.2014, a
Division Bench had passed order, in relation to the
suspension of Shri Kuldip Narayan, clearly noticing
that his suspension cannot be made subject matter of
a public interest litigation and he could pursue his
remedy in an independent writ proceeding, if so
advised, and until the time a permanent arrangement
is made by the State Government by withdrawing
suspension of Shri Kuldip Narayan, functions of the
Patna Municipal Corporation, as the submissions made
on behalf of the State Government and the Patna
Municipal Corporation indicate, have to be managed
by Shri Kapil Ashok; but on the same day, i.e., on
15.12.2014, an interlocutory application, bearing I. A.
No. 9327 of 2014, was filed, in the second PIL, by
Shri Kuldip Narayan himself, bringing to the notice of
the Court the order of his suspension passed by the
State Government and praying for its stay and
quashment. This was, immediately, moved be fore the
Division Bench, dealing with the second PIL, in the
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
20/135
post lunch session, even though the order passed, in
the first PIL by another Division Bench, in the pre
lunch session, was known to all including Sri Kuldip
Narayan and his learned counsel. When the matter
was taken up in the post lunch session by the second
Division Bench on 15.12.2014, the second Division
Bench, having been informed, on behalf of the State,
of the order passed on the same day by the first
Division Bench and having noted the inf ormation so
received, stayed the resolution of the State
Government suspending Shri Kuldip Narayan by
adjudicating upon the merits of the suspension and,
then, on the next day, i.e., 16.12.2014, ordered
interim stay of suspension to continue till final orders
were passed in the second PIL regarding suspension
of Shri Kuldip Narayan, on the basis of I. A. No. 9327
of 2014, filed by Shri Kuldip Narayan, seeking stay of
his suspension and quashing thereof. For the purpose
of clarity, the relevant portion of the order, made in
the second PIL, in the post lunch session on
15.12.2014, is reproduced below:
―The Municipal
Commissioner, Patna has filed I.A.
No. 9327 of 2014 assailing the
resolution of the Government
dated 12.12.2014, whereunder he
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
21/135
has been placed under suspension.
2. Mr. Lalit Kishore, Principal
Additional Advocate General,
however, submitted that the
resolution suspending the Municipal
Commissioner, Patna was placed
before a co-ordinate Bench of this
Court today itself while the Bench
was considering another Public
Interest Litigation relating to Waste
Management Scheme (raising of
incerinator plant) and the Court
observed that in a Public Interest
Litigation suspension order of an
officer cannot be
assailed/questioned. In this
connection, we may observe that
we are cognizant of the legal
position that even if transfer of
a Government servant is stayed
by the Court (in the instant
case of the Municipal
Commissioner, Patna) the
officer can be placed under
suspension by the disciplinary
authority. In the instant case
aforesaid legal position,
however, is not applicable as in
the background of the present
case, we are of the view that this
Court under order dated
02.07.2013 passed in the present
case giving details of hundreds of
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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illegal construction within the
municipal limits of Patna directed
the Municipal Commissioner to
initiate vigilance cases against
those who had raised illegal
constructions violating the bye -
laws within a reasonable time.
Subsequently under orders dated
08.07.2013, the Division Be nch
taking note of the earlier direction
of this Court in the case of Arun
Kumar Mukherjee (supra) that
frequent transfers of the then vice-
chairman of the Patna Regional
Development Authority has
hindered enforcement of building
bye-laws directed that the present
Municipal Commissioner, Patna
shall not be transferred without
permission of the Court for
ensuring continuity and
answerability. Against the aforesaid
order dated 08.07.2013 State
Government approached the
Supreme Court in Special Leave to
Appeal which was disposed of
under order dated 25.11.2013
passed in Special Leave to Appeal
(Civil) No. 36936 of 2013,
observed that State Government
before intending to transfer the
Municipal Commissioner, Patna
would seek permission from the
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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High Court. It further appears
that till date State Government
has not sought any permission
to transfer the Municipal
Commissioner on the ground of
inaction on his part and has
straightaway passed resolution
dated 12.12.2014 putting him
under suspension on the
ground of his inaction for non-
installation of incerinator plant
under Solid Waste Management
Scheme and for removal of
illegal encroachment as also for
not stopping illegal
construction in the year 2012 -
13, 2013-14, whereas from the
facts it is evident that the
encroachment as well as illegal
constructions were made much
earlier to the posting of Municipal
Commissioner, Patna on the
present post of Municipal
Commissioner as would appear
from the report of the Additional
Municipal Commissioner Mr. Kapil
Ashok as well as from the different
orders passed in this case as also
in the case of Arun Kumar
Mukherjee.
3. Let the file in which
proposal to place the Municipal
Commissioner was considered by
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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the Government be produced
before us tomorrow at 02:15 P.M.,
when we shall finally hear the
prayer made in the aforesaid
Interlocutory Application, but until
then operation of the resolution is
stayed.
4. Put up tomorrow at
02:15 P.M. under the same
heading.‖
(Emphasis is supplied)
(xii) What is impossible to ignore is the
fact that on 15.12.2014 itself, in the second PIL,
State had filed two interlocutory applications, being
I.A. No. 9357 of 2014 and I.A. No. 9359 of 2014,
seeking leave of the Division Bench to post another
officer in place of Shri Kuldip Narayan, who had been
suspended, so that functions of the Patna Municipal
Corporation might continue. The Division Bench, in
the second PIL, made, however, no order on the
State‟s two interlocutory applications aforementioned,
namely, I.A. No. 9357 of 2014 and I.A. No. 9359 of
2014. Not even notices were ordered to be issued on
these two interlocutory applications of the State.
(xiii) The State being in a
predicament, where first Division Bench had passed an
order clearly holding that the suspension of Shri Kuldip
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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Narayan would not be a subject matter of a PIL and if
so advised, he could move a separate writ petition and
further directing, “… … … until the time a permanent
arrangement is made by the State Government by
withdrawing suspension of Shri Kuldip Narayan,
functions of the Patna Municipal Corporation, as the
submissions made on behalf of the State Government
and the Patna Municipal Corporation indicate, have to
be managed by Shri Kapil Ashok‖, the later order of
the Division Bench, in the second PIL, stayed the
order of suspension of Shri Kuldip Narayan, in a public
interest litigation, making him continue as Incharge of
the Patna Municipal Corporation, the matter was
brought to the notice of the first Division Bench, which
had been dealing with the first PIL. This Division
Bench happened to be presided over incidentally by
me as the Acting Chief Justice.
(xiv) Noticing apparently conflicting
orders in relation to the same matter of suspension of
Shri Kuldip Narayan and interference therewith in a
public interest litigation, the first Division Bench
passed an order, on 17.12.2014, in the first PIL,
directing both the cases to be placed before the Acting
Chief Justice, on the administrative side, to consider if
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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the both cases (i.e., the first PIL as well as the
second PIL) be referred to a larger Bench so as to
arrest the conflicting orders with regard to the very
maintainability of a service dispute in a public interest
litigation and the dichotomy created on account of two
conflicting observations made and directions passed
by two different Division Benches. The order, dated
17.12.2014, so passed in the first PIL, by the first
Division Bench, read as under,
―17.12.2014. Mr. Lalit
Kishore, learned Principal
Additional Advocate General, has
brought to the notice of this Court
that in the order passed, on
15.12.2014, in CWJC No. 20570 of
2012, and the order, passed, on
15.12.2014, in I.A. No. 9327 of
2014, arising out of CWJC No.
8152 of 2013, two different
Benches have made
observations, taking views and
passing directions
contradictory to each other,
and the State, placed in such a
situation, is unable to
effectively deal with the
administration and such
conflicting observations,
directions and orders,
emanating from two Benches of
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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this Court, would impair
administration of justice and
underline the majesty of the
rule of law. It is also brought to
the notice of this Court that if
the Bench, which has been in
seisin of I.A. No. 9327 of 2014,
was of the opinion that it was
required to take a view
different from what had been
expressed in the order, dated
15.12.2014, in CWJC No. 20570
of 2012 and the directions
passed therein allowing Mr.
Kapil Ashok to appear, on
behalf of Patna Municipal
Corporation, in CWJC No. 20570
of 2012, as the In -Charge,
Municipal Commissioner, it
would have been appropriate to
refer the matter to a larger
Bench for necessary decision .
We find substance in the
submissions made by the learned
Principal Additional Advocate
General, more particularly, when
we notice that by the order, dated
15.12.2014, passed in I.A. No.
9327 of 2014, while setting at
naught the observations made and
the directions given in order, dated
15.12.2014, in CWJC No. 20570 of
2012, the learned Bench has not
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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expressed any view if the
impugned order of suspen sion,
which was the subject matter of
I.A. No. 9327 of 2014, can be
legally set aside and quashed in a
Public Interest Litigation.
Considering, therefore, the
matter in its entirety and in the
interest of justice, we are of the
view that a larger Bench nee ds
to be constituted for the
purpose of dealing with both
the writ petitions, namely,
CWJC No. 20570 of 2012, and
also the I.A. No. 9327 of 2014,
arising out of CWJC No. 8152 of
2013, so as to arrest conflicting
directions emanating from two
different Benches.
Registry is, therefore,
directed to place the matter, on the
administrative side, before Hon’ble
the Chief Justice (Acting) for
consideration if a larger Bench
needs to be constituted.
Sd/- I.A. Ansari, ACJ
Sd/- Samarendra Pratap Singh, J.‖
(Emphasis is supplied)
(xv) The Acting Chief Justice
accordingly passed administrative order that both the
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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cases be, immediately, listed before a larger Bench
i.e. Full Bench, and the three senior most Judges of
the Court i.e. the Acting Chief Justice, Justice V. N.
Sinha and Justice Navaniti Prasad Singh would
constitute the Full Bench to hear the two public
interest litigations. It is in this perspective that this
batch of PILs, with all interlocutory applications filed
therein, have been listed and taken up for
consideration by the Full Bench.
SUBMISSIONS
4. As vehement lengthy arguments have
been advanced before this Full Bench with regard to
the legality of the constitution of this Full Bench, while
referring the two PILs to a Full Bench and other
matters impinging upon the constitution of the Full
Bench, I deem it proper to deal with them as well.
5. The first thing, I would like to note, is
that no counsel, appearing for any of the parties in
any of these proceedings before the Full Bench, has
chosen to doubt or challenge the correctness of order,
dated 15.12.2014, passed in the first PIL, i.e.,
C.W.J.C. No. 20570 of 2012, wherein the first Division
Bench had held that Shri Kuldip Narayan could
challenge his suspension in a separate writ petition,
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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but not in a PIL nor has anyone doubted the
impartiality of the first Division Bench, in the first
PIL, allowing Shri Kuldip Narayan a leeway. Without
challenging the correctness, legality or otherwise of
the order passed, in the first PIL, in the pre-lunch
session, on 15.12.2014, Shri Kuldip Narayan,
however, filed, on 18.12.2014, I.A. No. 9498 of 2014
questioning the cases being referred to the Full Bench.
6. Assailing the very legality in the
constitution of this Full Bench, Mr. Y. V. Giri, learned
Senior Counsel, appearing on behalf of the Municipal
Commissioner -cum- Chief Executive Officer of the
Patna Municipal Corporation, Shri Kuldip Narayan, and
also the Patna Municipal Corporation, submits that
listing of all the cases together before the Full Bench
of three Judges by the orders of the Acting Chief
Justice was not permissible under the Patna High
Court Rules, especially, when, according to him, there
were no conflicting order or orders in ignorance of
binding precedent. Mr. Giri, learned Senior Counsel,
also submits that though Shri Kuldip Narayan was an
officer of the State Government in the cadre of All
India Service (I.A.S.), he having been appointed as
the Municipal Commissioner, Patna Municipal
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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Corporation, the State Government was incompetent
to take any disciplinary action against him under the
All India Services (Discipline & Appeal) Rules, 1969,
and it had no jurisdiction to either start disciplinary
proceedings or to suspend him, especially, in respect
of nothing done or alleged to have been done by him
as a Municipal Commissioner under the provisions of
the Bihar Municipal Act, 2007. His further submission
is that notwithstanding clear order, dated 15.12.2014,
passed in the first PIL, specifically pointing out that
the order of suspension could not be made subject
matter of PIL and notwithstanding that the second
Division Bench, being cognizant of the said order,
having entertained the interlocutory application being
I. A. No. 9327 of 2014 as filed by Shri Kuldip Narayan
in the second PIL, and notwithstanding the stay
granted by the second Division Bench as against the
order of suspension and thereby allowing Shri Kuldip
Narayan to continue as Commissioner, Patna Municipal
Corporation, there was no conflict and the second
Division Bench ought to have been permitted to
proceed and adjudicate upon the merits of the
suspension order in the second PIL and any party,
aggrieved by the final order, could seek his remedy
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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accordingly, but referring all the cases to the Full
Bench, at such a stage, was not permissible.
7. Let it be noted that with the best
traditions maintained at the Bar, Mr. Giri, learned
Senior Counsel, appearing on behalf of Shri Kuldip
Narayan, has not, however, raised any plea, attributed
or even faintly suggested, of likelihood of bias against
any member constituting this Full Bench. Why I made
this observation would become clear and evident as
we proceed further.
8. Amazing though it may sound, Mr.
Shree Prakash Srivastava, learned counsel appearing
for the petitioners, in the first PIL, has also assailed
the legality of the constitution of this Bench. His
arguments are, however, a little different. His
contention is that the first PIL had been directed to
be listed on 19.12.2014, whereas the matter, on being
mentioned by the learned Principal Additional
Advocate General, in the pre lunch session of
17.12.2014, was taken up without publication of any
notice. I may, immediately, point out that the matter
was taken up, on 17.12.2014, on publication of notice.
This apart, adverse order ought to have been passed,
and had not been passed, against the interest of the
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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petitioners in the first PIL, while referring the two
PILs, on the administrative side, to the Acting Chief
Justice, for consideration, if a larger Bench needed to
be constituted to arrest conflicting orders and
directions emanating from the two Division Benches of
this Court.
9. The other grievance of Mr. Shree
Prakash Srivastava, learned counsel, is that the
subject matter of the second PIL has been imported
into the first PIL. I find no substance in this
submission inasmuch as the two PILs are on two
different subjects and it was only because of the fact
that the Commissioner, Patna Municipal Corporation,
stood suspended, that different and colliding
directions, may be unintentionally, emanated from two
Division Benches of this Court, which was w holly
unhealthy, may be, unconsciously and unless
conflicting observations and directions were restricted,
such conflicts would negate the concept of judicial
discipline and deny to the people proper and effective
administration of justice.
10. I may further point our that Mr.
Shree Prakash Srivastava, learned counsel, was
repeatedly asked by us to point out how he or, for that
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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matter, his writ petition or his writ petitioners were at
all adversely affected by placing the matter before the
Full Bench, he had no clear reply. Why he was
opposing the hearing before the Full Bench, he could
not clearly specify. I am surprised and dismayed.
11. We, then, have Mr. Jyoti Ranjan Jha,
Advocate, appearing for Shri Amitesh Kumar, in I.A.
No. 9094 of 2014, filed in the first PIL, adopting the
same line of arguments as Mr. Giri; but in course of
his argument, he, however, urged the Court that his
submissions should be taken note of as an
independent Advocate in the matter. To me, the
reasons were obvious. I have earlier indicated the
contents of this I.A. No. 9094 of 2014 as filed in the
second PIL, wherein Shri Amitesh Kumar had sought
to protect the interest of his father, Shri Lalan Prasad
Singh, Executive Engineer in the Kankarbagh Division
of the Patna Municipal Corporation, in respect of the
vigilance case filed and registered against him,
wherein the second Division Bench, in the second
PIL, ordered, on 09.12.2014, that no coercive steps
be taken, in the vigilance case against Sri Lalan
Prasad Singh, even though he was not a party to any
of the proceedings in the public interest litigation nor
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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could he even remotely claim the protection of the
order, dated 08.07.2013, passed, in the second PIL,
wherein an order of restraint was passed only in
respect of transfer of Sri Kuldip Narayan, Municipal
Commissioner, without leave of the Court. The effect
of the directions, given in favour of Sri Lalan Prasad
Singh, was that neither could he be arrested nor was
any search or seizure possible.
12. It may also be noted here that on
15.12.2014 itself, in the second PIL, State had filed
two interlocutory applications, being I.A. No. 9357 of
2014 and I.A. No. 9359 of 2014, seeking leave of the
Division Bench to post another officer in place of Shri
Kuldip Narayan, who had been s uspended, so that
functions of the Patna Municipal Corporation might
continue.
13. Before proceeding further, I may
refer to I.A.No. 108 of 2015 filed, in C.W.J.C.No. 8152
of 2013, by Mr. Prasoon Sinha, an Advocate, strictly
in his individual capacity. It has not been filed on
behalf of any of the parties to the writ petition, much
less on behalf of Shri Kuldip Narayan or on his
instructions. By this application, Mr. Prasoon Sinha has
sought Justice Navaniti Prasad Singh to recluse from
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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being a Member of the Full Bench and hearing this
matter on the ground of likelihood of bias against Shri
Kuldip Narayan. With this interlocutory application, I
will deal with elaborately at a later stage. I may,
however, hasten to add that Shri Kuldip Narayan has
raised no such apprehensions nor has any such
apprehensions been expressed by any of the parties to
the proceedings.
14. I may also note here that Mr. Kumar
Amitesh Chandra, Advocate, who apparently appears
for some of the connected matters, raised serious
objections to the stand of Mr. Prasoon Sinha,
Advocate, who appeared not as a party, but
independently by means of I. A. No. 108 of 2015,
seeking one of the members of the Full Bench to
rescue on the ground of likelihood of bias. Mr. Kumar
Amitesh Chandra, learned counsel, placed on record
some orders of different Courts in different
proceedings, wherein different Benches, including that
of Justice V. N. Sinha, have passed severe strictures
against Shri Kuldip Narayan. This questions the bona
fide of Mr. Prasoon Sinha, Advocate, in choosing to
ignore these orders and strictures passed, while
raising the plea of likelihood of bias against one of the
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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members of this Full Bench.
15. With some degree of appreciation, I
must hasten to point out that no bias or prejudice has
been alleged by any of the parties to the two Public
Interest Litigations against any of the Judges,
constituting either the first Division Bench or the
second Division Bench, nor has any of the parties to
the two public interest litigations or interlocutory
applications filed therein have expressed any doubt on
the impartiality of the members of this Full Bench,
which was encouraging and gave us the impetus to do
what was warranted of us by the law of this great
land.
16. Mr. Santosh Kumar, learned Counsel,
appearing on behalf of some of the Municipal
Councillors through I.A. No. 9508 of 2014, filed in
C.W.J.C. No. 8152 of 2013, sought for their
impleadment in opposition to the actions of the State
Government in issuing orders of suspension of Shri
Kuldip Narayan. Placing reliance on recent judgment
of the Supreme Court in the case of State of Punjab
v. Salil Sabholok and others, reported in (2013) 5
SCC 1, he has submitted that the service matters can
be agitated in a PIL.
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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17. Mr. Sanjay Singh, learned counsel,
appearing on behalf of Builders Association, who, at
different stages had filed various interlocutory
applications in the second PIL, urges the Court to
take note of the fact that unnecessarily, the Builders
Association and its members are being dragged into
the present controversy, though they have no
personal animus against Shri Kuldip Narayan and
except for raising a boggy against the Builders
Association , no fact or any act of Builders Association
has at all been pleaded by any party to sh ow “any
unholy nexus between the State and Builders
Association”. Mr. Singh pleads that this fact may be
borne in mind by the Full Bench, while deciding the
matter.
18. Mr. S. B. K. Manglam, learned
counsel, appearing for the Mayor of the Municipal
Corporation, vide I.A. No. 9317 of 2014, tried to
intervene, once again, in support of the impugned
actions taken by the State Government. I may only
note, in this regard, that this interlocutory application
was rejected by order, dated 15.12.2014, by the
Division Bench in the second PIL and does not
survive for consideration.
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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19. Mr. Lalit Kishore, learned Principal
Additional Advocate General, who appeared on behalf
of the State, in all the cases, submits, firstly, that in a
PIL, exclusively relating to failure of Patna Municipal
Corporation to discharge its statutory obligations, any
individual grievance of an officer, in relation to service
matter, at his own behest, could not have been
entertained and the interlocutory application (I.A. No.
9327 of 2014), filed by Shri Kuldip Narayan, in the
second PIL, was, thus, not maintainable as being
misconceived and it needed to be dismissed.
20. With regard to the above, learned
Principal Additional Advocate General further submits
that the second Division Bench, in view of the order of
the first Division Bench, was required to decline to
entertain the said interlocutory application and if the
second Division Bench differed, for any reason, with
the views of the first Division Bench or with the
directions passed in the first PIL, the only option for
the second Division Bench was to refer the matter to
the Chief Justice to constitute a larger Bench to
consider or adjudicate the issue. He, then, submits
that the Chief Justice (in the present case, the Acting
Chief Justice), being the master of rolls, had, in the
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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light of the provisions of the Patna High Court Rules,
full authority in assigning of cases and constitution of
Benches and, indeed, the Chief Justice had the duty
and the jurisdiction to direct the placement of all the
cases before a Full Bench.
21. Lest I fail in my duty to record the
submission made by Mr. Ram Balak Mahto, learned
Advocate General, I may point out that the learned
Advocate General submits that I. A. No. 108 of 2015,
in the second PIL, filed, in course of hearing before
the Full Bench, by Mr. Prasoon Sinha, an Advocate, in
his personal capacity, not on behalf of or not on
instructions of a party to the cases, seeking one of the
members of the Full Bench to recuse from the
proceedings on the ground of likelihood of bias against
Shri Kuldip Narayan is nothing, but a mischievous
effort to scandalize the Court and depicts irresponsible
conduct of an officer of the Court, not compatible to
the status of an Advocate of the Court and, as such,
the interlocutory application, filed by Mr. Prasoon
Sinha, may please not be taken cognizance of and
may be summarily dismissed so that the Full Bench
may, without any hindrance, proceed to do what law
warrants it to do.
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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CONFLICT IN PERCEPTION OF LAW AND IN
ISSUANCE OF DIRECTIONS
22. In my view, there was apparent
conflict between the clear view taken by the first
Division Bench, in the first PIL, presided over by me
inasmuch as it was indicated, in no uncertain words, in
the order, dated 15.12.2014, passed in the pre lunch
session that an order placing a Government servant
under suspension, cannot be made a subject of a
public interest litigation and observing that „until the
time a permanent arrangement is made by the State
Government by withdrawing suspension of Shri Kuldip
Narayan, functions of the Corporation, as the
submissions made on behalf of the State Govt. and
the Corporation indicate, have to be managed by Shri
Kapil Ashok’.
23. Notwithstanding the said order,
dated 15.12.2014, which was known to all concerned,
including the learned counsel for Shri Kuldip Narayan,
who appeared in the second PIL, a prayer was made
before the second Division Bench, in the second PIL,
by Sri Kuldip Narayan to quash and stay his order of
suspension and notwithstanding the fact that all these
aspects of the matter were also made known to the
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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second Division Bench, in the second PIL, the second
Division Bench, however, not only entertained the
interlocutory application filed by the suspended officer,
Shri Kuldip Narayan, but, immediately, stayed the
order of suspension in the public interest litigation
itself.
MODE TO RESOLVE CONFLICT, WHEN TWO CO -
ORDINATE BENCHES DIFFER WITH EACH OTHER
OR ONE DIVISION BENCH IS REQUIRED TO TAKE
A VIEW DIFFERENT FROM THE OTH ER CO-
ORDINATE BENCH
24. Situated thus, we are constrained to
deal with the position of law, to the extent the same is
relevant in the present scenario inasmuch as this Full
Bench, while resolving the conflict, has to lay down
the correct position of law, governing the subject, and
resolve the conflict so that the High Court speaks in
one clear and unhesitant words in order to let the
public, in general, and litigants and the counsels, in
particular, know as to what the law on the subject is
and what shall be the correct course to be charted by
this very Full Bench, so as to ensure maintenance of
judicial discipline and attain the goal and the object of
effective administration of justice.
25. It is not only the question as to
whether the views, expressed by the first Division
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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Bench, dealing with the first PIL, in the pre lunch
session of 15.12.2014, were legally correct or not, the
question is whether the second Division Bench, dealing
with the second PIL, acted, consistent with the best
traditions of judicial discipline, in making apparently
conflicting directions and setting at naught the
observations of the first Division Bench, made in the
first PIL in the pre lunch session on 15.12.2014 and
the directions passed therein that until the time a
permanent arrangement is made by the State
Government by withdrawing suspension of Shri Kuldip
Narayan, functions of the Patna Municipal Corporation,
as the submissions made on behalf of the State
Government and the Patna Municipal Corporation
indicate, have to be managed by Shri Kapil Ashok.
26. With great respect and with all
humility at my command, I am constrained to observe
that the law and the judicial propriety demanded that
if the second Division Bench did not agree with the
order passed earlier by the first Division Bench in
relation to the same matter and wanted to take a
different view, then, the matter ought to have been
referred by the second Division Bench to a larger
Bench and as that was not done, I, being the Acting
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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Chief Justice, and the facts having been brought to my
notice, directed both the cases, as a whole, to be
taken up by Full Bench to arrest the said conflicts.
SERVICE DISPUTE VIS-À-VIS PUBLIC INTEREST
LITIGATION
27. I should, now, consider the
argument of Mr. Santosh Kumar, Advocate, appearing
for some of the Municipal Councilors, who are
opposing the actions of the State Government in
suspending the Municipal Commissioner and
challenging the order of suspension in the PIL. Firstly,
no intervention to support a petitioner is permissible
under the Patna High Court Rules inasmuch as proviso
to Rule 5 of Chapter XXIC of the Patna High Court
Rules makes it clear that intervention or intervenors
can only oppose or be heard in opposition. Thus, the
application of the Councillors of the Patna Municipal
Corporation, impugning the order of suspension of
Shri Kuldip Narayan, is wholly misconceived in law and
cannot be sustained and, therefore, rejected. Since,
Mr. Santosh Kumar has relied upon a decision of the
Supreme Court in the case of State of Punjab v.
Salil Sabhlok and others, reported in (2013) 5 SCC
1, to submit that even in PIL, service matter can be
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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entertained, I may point out that I have examined the
decision in Salil Sabhlok (supra), and in my view,
reliance is wholly misconceived.
28. Apart from other decisions as
referred to earlier on this aspect, I may refer to the
recent judgment of the Supreme Court, in the case of
Hari Bansh Lal v. Sahodar Prasad Mahto and
others, reported in (2010) 10 SCC 655 , wherein the
Supreme Court has clearly held, at paragraph 15 of
the reports, as follows :-
―15. The above
principles make it clear that
except for a writ of quo
warranto, public interest
litigation is not maintainable in
service matters.‖
29. A writ of quo warranto is a writ
based upon challenge of a right of a person to hold
public office and is maintainable by any one at large.
That is different from a PIL as generally understood.
Keeping this in mind, if we see the decision in the case
of Salil Sabhlok (supra), the Apex Court therein had
clearly held that what was in challenge was not an
appointment of a person holding a civil post. In other
words, what was challenged by way of PIL was not a
service matter, but what was challenged was selection
of a person holding a constitutional post of the
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Chairman of the Public Service Commission. It was
clearly a case of quo warranto and not a case of PIL
simplicitor in a service matter. I am constrained to
observe that the decision in Salil Sabhlok (supra),
relied upon by Mr. Santosh Kumar, is not an authority
for the proposition he has sought to canvas.
30. To me, the law, in relation to PIL, is
clear. A PIL is not to be an adversarial litigation; but
inquisitorial in character. PIL is meant to deal with
larger public interest litigation at the behest of public
spirited person(s) espousing cause(s) of people, who
are voiceless and who may not be in a position to
move Courts to vindicate their rights. It is a litigation
claiming no personal right and claiming no personal
relief. The moment an individual claims to enforce a
personal right and claims a personal relief, it ceases to
be a subject matter of PIL and is not maintainable as
such; more particularly, if the subject matter relates
to service dispute. Enforcement of personal right and
asking for a personal relief are clearly beyond the
object with which PIL was conceived. Individuals have
well defined forums for vindicating their individual
rights and PIL is not for the said purpose nor can
individual disputes be brought for adjudication in a
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PIL and, in fact, in terms of the Patna High Court
Rules relating to PIL, a certificate is required to be
submitted by an applicant stating that none of his
personal interest is involved in the public interest
litigation, whereas the prayers, for stay of suspension
and quashment, made by Sri Kuldip Narayan had no
element of public interest, but purely private and
individual interest.
WAS SHRI KULDIP NARAYAN’S INTERLOCUTORY
APPLICATION, SEEKING INTERVENTION OF HIGH
COURT IN A PIL, SUSTAINABLE? CAN A COURT
MAKE AN INTERIM ORDER ON AN
INTERLOCUTORY APPLICATION IF THERE IS NO
SUBSTANTIVE APPLICATION AND IF THE COURT
DOES NOT HAVE THE POWER TO FINALLY GRANT
A RELIEF, WHICH THE INTE RLOCUTORY
APPLICATION SEEKS, CAN IT GRANT ANY RELIEF,
WHICH IS INTERIM IN NATURE?
31. It may be noted that Shri Kuldip
Narayan is a member of All India Service, i.e., Indian
Administrative Service, and the State Government is
the cadre controlling authority. In exercise of powers
under Section 3(1)(a) of the All India Service
(Disciplinary & Appeal) Rules, 1969, the State
Government had decided to initiate departmental
proceedings against the said of ficer and, in
contemplation thereof, it decided to suspend him in
exercise of the statutory powers conferred on the
State by the said Statute. The officer was personally
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impugning the action of the State in his personal
capacity and seeking a personal and private relief of
not only stay of his suspension, but also for getting
the order of suspension quashed, though he had right
either in moving the Central Administrative Tribunal or
in a separate writ petition if he could make out a case
for invoking the extra ordinary jurisdiction of the High
Court under Article 226 of the Constitution of India;
but in a PIL, and that too, by a mere interlocutory
application, no such relief could have been sought for,
or granted, either for limited or unlimited purpose. It
is trite that a Court will not pass any interim order
which it cannot pass finally; whereas the present one
was a case, wherein Sri Kuldip Narayan had
challenged the legality of his suspension by way of an
interlocutory application and not even by means of
any substantive application.
32. In Ashok Kumar Pandey v. State
of West Bengal, reported in (2004) 3 SCC 349 , the
relevant observations, appearing at paragraph 16,
read as follows,
―… … … Though in
Duryodhan Sahu (Dr.) v. Jitendra
Kumar Mishra (1998) 7 SC C 273),
this Court held that in service
matters PILs should not be
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entertained, the inflow of so -
called PILs involving service
matters continues unabated in
the courts and strangely are
entertained. The least the High
Courts could do is to throw
them out on the basis of the
said decision‖.
(Emphasis is supplied)
33. The said position was reiterated by
the Supreme Court, in Grijesh Shrivastava and
Others v. State of Madhya Pradesh and Others ,
reported in (2010) 10 SCC 707 , in the following
words,
“15. In Duryodhan Sahu
(Dr.) v. Jitendra Kumar Mishra
1
a
three-Judge Bench of this Court
held that a PIL is not maintainable
in service matters. This Court,
speaking through Srinivasan, J.
explained the purpose of
administrative tribunals created
under Article 323 -A in the
backdrop of extraordinary
jurisdiction of the High Courts
under Articles 226 and 227. This
Court held: (SCC p. 281, para 18)
―18. … If public interest
litigations at the instance of
strangers are allowed to be
entertained by the [Administrative]
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Tribunal, the very object of speedy
disposal of service matters would
get defeated.‖
Same reasoning applies
here as a public interest litigation
has been filed when the entire
dispute relates to selection and
appointment.
16. In B. Srinivasa Reddy
v. Karnataka Urban Water Supply
& Drainage Board Employees’ Assn.
this Court held that in service
matters only the non -appointees
can assail the legality of the
appointment procedure (see SCC
p. 755, para 51 of the Report).
17. This view was very
strongly expressed by this Court in
Dattaraj Nathuji Thaware v. State
of Maharashtra by pointing out that
despite the decision in Duryodhan
Sahu, PILs in service matters
―continue unabated‖. This Court
opined that the High Courts should
―throw out‖ such petitions in view
of the decision in Duryodhan Sahu
1
(SCC p. 596, para 16).
18. Same principles have
been reiterated in Ashok Kumar
Pandey v. State of W.B.
4
(SCC at
p. 358, para 16).
19. In a recent decision
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of this Court delivered on 30-8-
2010, in Hari Bansh Lal v. Sahodar
Prasad Mahto, it has been held
that except in a case for a writ
of “quo warranto”, PIL in a
service matter is not
maintainable (see SCC para 15).‖
(Emphasis is added)
34. The earlier view, which we have
indicated above, has also been recently revisited and
reiterated by the Supreme Court, in Ayaaubkhan
Noorkhan Pathan v. State of Maharashtra and
Others, reported in (2013) 4 SCC 465 , wherein the
Court, in paragraph 15, observed thus,
―15. Even as regards the
filing of a public interest litigation,
this Court has consistently held
that such a course of action is
not permissible so far as
service matters are concerned.
(vide Duryodhan Sahu v. Jitendra
Kumar Mishra (1998) 7 SC C 273),
Dattaraj Nathuji Thaware v. State
of Maharashtra (2005) 1 SCC 590)
and Neetu v. State of Punjab
(2007) 10 SCC 614).‖
(Emphasis is supplied)
35. If this be the law and the legal
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position as consistently held by the Supreme Court,
Division Bench, in second PIL, could have, with
greatest respect, referred the matter to a Full Bench
instead of entertaining I. A. No. 9327 of 2014, filed by
Shri Kuldip Narayan, challenging, in a pending PIL,
his suspension with prayers of stay thereof and its
quashment. Such an application was totally foreign to
a PIL; more so, in the second PIL, wherein subject
matter was entirely different. It is not that Shri Kuldip
Narayan was remediless. He had a statutory remedy
before the Central Administrative Tribunal or, if so
advised, by an independent writ petition. He and his
learned counsel were aware of the order of the first
Division Bench passed, in the pre lunch session, in the
first PIL, on 15.12.2014 and so was the second
Division Bench made aware of the order
aforementioned of the first Division Bench in the first
PIL; yet a dispute, relating to service matter, was
entertained in the second PIL by the second Division
Bench ignoring the law laid down by the Apex Court as
stands incicated above I would, accordingly, dismiss
I.A. No. 9327 of 2014, filed on 15.12.2014, by Shri
Kuldip Narayan, in C.W.J.C. No. 8152 of 2013.
36. Coupled with the above, it is,
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unavoidably worth pointing out that in a case, where
final order cannot be passed, interim order ought not
have been passed. If the court could not have
quashed the order placing Shri Kuldip Narayan under
suspension, the question of granting stay of such an
order did not arise at all. It would have b een a
different matter, had Shri Kuldip Narayan merely laid
information, in the second PIL, that he was unable to
perform the duties assigned to him by the Court,
because of his suspension and, then, the Court could
have taken initiative to do the needful.
37. Unbelievably, Shri Kuldip Narayan,
with the help of his I. A. NO. 9327 of 2014, did not
merely inform the Court, in second PIL, that he was
unable to carry out the directions of the court; rather,
he applied for quashing and stay of the order putting
him under suspension pending drawing of
departmental proceeding and operation of this order
was stayed in the post lunch session, on 15.12.2014,
in the second PIL.
38. Amazingly enough, Shri Kuldip
Narayan, in his I. A. No. 9327 of 2014, while putting
to challenge the Government‟s Resolution, dated
12.12.2014, placing him under suspension, as
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indicated hereinbefore, has alleged that in the garb of
his failure as Commissi oner, Patna Municipal
Corporation, he, for extraneous reasons and not for
any dereliction of his duties, has been placed under
suspension by the Government‟s Resolution, dated
12.12.2014. The accusation, so made by Shri Kuldip
Narayan, meant that he was in viting the Court to
decide nor merely the correctness and legality of the
suspension order, but also the motive behind the
issuance of the impugned Resolution placing him
under suspension and, in this regard, he has also
alleged that the impugned Resolution has been passed
in collusion with some influential and powerful
builders. Interestingly though, no material particular
was, in this regard, placed on record by Shri Kuldip
Narayan and no name of any builder has been
mentioned on this aspect of the case by Shri Kuldip
Narayan. It remains, therefore, a mystery as to who
those influential and powerful builders are, though the
law is fairly settled that if collusion is alleged, the
name or names of the person or persons, who have
colluded, must be disclosed in the pleadings.
39. In the second PIL, thus, Shri Kuldip
Narayan was inviting the Court to determine the merit
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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of his suspension including the motive in issuing the
impugned Resolution; whereas the real purport and
motive of his suspension order can be e xamined, if
challenged, by the Central Administrative Tribunal, as
Shri Kuldip Narayan is an IAS Officer and, it is in a
rare, rather, very rare case, that the matter may,
perhaps, be examined in a proceeding under Article
226 of the Constitution of India provided that the
order of suspension suffers from any constitutional
infraction or infirmity.
40. Very hesitantly and with greatest
respect, I am constrained to say that in the second
PIL, the Division Bench entered into the merit of the
impugned Resolution, placing Shri Kuldip Narayan
under suspension, which could not have entered into
in the light of the observations, which had been made
in the first PIL.
41. I am pausing here to point out, as I
have already indicated above, that there are materials
on record showing severe strictures having been
passed by various Courts against Shri Kuldip Narayan
and, in a proceeding, like Public Interest Litigation, the
Court will not enter into the merit of a suspension
order, when the officer, who was not to be transferred
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without leave of the Court, has not till date been
transferred and, in fact, an application is on record,
whereby the State Government has sought for leave
of the Court to withdraw the suspended officer and it
would be for the Court to decide whether to allow or
not to allow such withdrawal of Shri Kuldip Narayan
from the post of Commissioner, Patna Municipal
Corporation, while he remains placed under
suspension.
A FULL BENCH, THOUGH NOT AN APPELLATE
BENCH, NEVERTHELESS OWES A DUTY TO
RESOLVE CONFL ICT IN THE PERCEPTION OF LAW
BETWEEN TWO DIVISION BENCHES AND IN THE
DIRECTIONS EMANATING FROM TWO CO -
ORDINATE BENCHES
42. I remind myself, again and again,
that this Full Bench is not sitting as an appellate Court
over the correctness of the decision of the second
Division Bench in relation to the suspension of Shri
Kuldip Narayan. This Full Bench, however, has the
onerous task and/or the obligation to lay the correct
position of law governing the subject and adopt, with
utmost respect, that course of action, which judicial
propriety demands the Full Bench to adhere to by
bringing consistency in the conflicting observations
and such directions which are colliding with each other
so as to reach certainty and consistency in the judicial
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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proceedings.
CAN A COURT, WHILE DEALING WITH A PIL, GIVE
AT THE INSTANCE OF NOT THE AGGRIEVED
PERSON, BUT AT THE INSTANCE OF THE SON OF
THE AGGRIEVED PERSON, GIVE DIRECTIONS
RESTRAINING INVESTIGATION INTO THE
ALLEGED COMMISSION OF OFFENCES.
43. It may be noticed that in course of
hearing before the Full Bench, Mr. Jyoti Ranjan Jha,
Advocate, has intervened, on behalf of one Shri
Amitesh Kumar, who has filed I. A. No. 9094 of 2014,
on 08.12.2014 ─ as I have already noted above ─
making a grievance that his father, Shri Lalan Prasad
Singh, an Executive Engineer of Kankarbagh Division
of the Patna Municipal Corporation, was wrongly being
proceeded against by the Vigilance Department of the
State and, on the basis of a First Information Report
lodged in this regard, a case had be en registered
against his father. On this interlocutory application
filed in the second PIL, the second Division Bench
passed, on 09.12.2014, an interim order prohibiting
taking of any coercive steps against Shri Lalan Prasad
Singh meaning thereby that he could not have been
even arrested and his custodial interrogation was
impermissible until the Court took a different view nor
was any search or seizure, in this regard, possible.
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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44. It may be noted and noted with
some concern that Shri Lalan Prasad Singh chose not
to move the Court himself seeking any relief, much
less in the PIL, but his son moved the said
interlocutory application and sought a personal relief
for his father. This, again, I find curious and not
permissible. No hesitation, therefore, in holding, with,
however, all humility and respect, that the said
interlocutory application, in the second PIL, was
wholly misconceived in law and not maintainable and I
hold accordingly. I. A. No. 9094 of 2014, filed by Mr.
Amitesh Chandra, is dismissed summarily.
WHETHER CONSTITUTION OF THIS FULL BENCH IS
CORRECT AND VALID: SHADOW OF JUDICIAL
PROPRIETY
45. Now, I would like to deal with the
objection of Mr. Y. V. Giri, learned Senior Counsel, and
Mr. Jyoti Ranjan Jha, Advocate, with reference to the
Patna High Court Rules not permitting reference to
Full Bench in the present factual matrix. First reliance
has been placed on Rules 11 and 12 of Chapter II of
Patna High Court Rules, as also Rule 1 of Chapter V of
Patna High Court Rules. The said Rules, for
convenience, are quoted hereunder :-
―Chapter II -
Constitution of Benches a nd
Powers of Benches and of the
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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Registrar-
xx xx xx
xx xx xx
―11. Notwithstanding
anything to the contrary in the
rules the Chief Justice may direct
that any application, petition,
suit, appeal or reference shall be
heard by a full Bench.
12. A Full Bench shall be
a Bench of any number not less
than three Judges
Chapter V- Reference to
a Full Bench-
1. Whenever a Division
Bench desires and the Chief
Justice consents that any case
shall be referred to a Full Bench,
or whenever in any case a
Division Bench differs from any
other division Bench upon a point
of law or usage having the force
of law, such case shall be referred
for decision by a Full Bench.‖
46. Before proceeding further with this
aspect of the submission, I may also notice the
argument of Mr. Jyoti Ranjan Jha, learned counsel,
that the expression `Chief Justice‟, as used in Patna
High Court Rules, does not mean and would not
include `Acting Chief Justice‟. I am unable to agree
with this argument for the simple reason that it is only
in absence of the Chief Justice, a puisne Judge is
notified to take charge and perform the functions of
Chief Justice and there is no restriction on the powers
of the Acting Chief Justice in this regard.
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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47. It is also contended by Mr. Jyoti
Ranjan Jha, learned counsel, that since the Full Bench
was constituted by the then Acting Chief Justice, the
Full Bench should, now, be presided over by Hon‟ble
the Chief Justice. This submission does not take notice
of the fact that a cause list is published by the order of
Hon‟ble the Chief Justice and it is the decision of
Hon‟ble the Chief Justice that these cases are listed
before this Bench.
48. In fairness to Mr. Giri, I must notice
that his submission has been that the Acting Chief
Justice did not exercise powers under Rule 11 of
Chapter II of the Patna High Court Rules and there
being no difference of opinion between the order
passed in the first PIL and any order passed in the
second PIL, powers under Rule 1 of Chapter V of
Patna High Court Rules could not have been exercised.
He places reliance on two Division Bench decisions of
this Court in the cases of An Advocate v. The
Registrar, Patna High Court and others , reported
in 1990 BBCJ 813, and High Court of Judicature
at Patna v. Ramawatar Singh , reported in 1993(1)
PLJR 644.
49. First, I would like to notice the true
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import of the Rules aforesaid. Rule 11 of Chapter II
clearly gives overriding power to the Chief Justice to
direct any matter to be heard by a Full Bench. There is
no condition or limitation attached thereto. When we
come to Chapter V, Rule 1, it is in two parts. Firstly,
where a Division Bench desires and the Chief Justice
consents, the case shall be referred to Full Bench.
Secondly, where any subsequent Division Bench
differs from an earlier Division Bench, then, the case
shall be referred for a decision to the Full Bench.
50. Thus, Rule 11 of Chapter II is an
independent power of the Chief Justice , whereas, the
first part of Rule 1 of Chapter V is dependent upon the
desire of a Division Bench and consent of the Chief
Justice thereto irrespective of whether there is
difference of opinion or not. Such cases are well
known, where question of great importance is desired
to be decided by a larger body of Judges and the Chief
Justice agrees to it. The second part of Rule 1 clearly
predicates the situation of difference of opinion and in
such a situation, no consent of the Chief Justice is
necessary.
51. In my considered view, the Rule s
aforementioned clearly postulate the position of the
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Chief Justice as the Master of roster.
52. In fairness to Mr. Giri, who relies on
the aforesaid two decisions of the Division Bench of
this Court to submit that once any matter is placed
before a Judge or a Bench, then, the Chief Justice
ceases to have jurisdiction to re-allocate the matter or
refer the pending case to Full Bench, I cannot accede
to the very wide generalized proposition so advanced.
In this regard, I may, first, take note of the case of
Inder Mani v. Matheshwari Prasad , reported in
1996(6) SCC 587 , wherein at paragraph No. 7, it has
been held as under :-
“7. ……………… It is the
prerogative of the Chief Justice to
constitute benches of his High
Court and to allocate work to such
benches. Judicial discipline requires
that the puisne Judges of the High
Court comply with directions given
in this regard by their Chief Justice.
In fact it is their duty to do so.
Individual puisne Judges cannot
pick and choose the matters they
will hear or decide nor can they
decide whether to sit singly or in a
Division Bench. When the Chief
Justice had constituted a Division
Bench of Justice V.N. Khare and
the learned Judge, it was
incumbent upon the learned Judge
to sit in a Division Bench with
Justice V.N. Khare and dispose of
the work assigned to this Division
Bench. It was most improper on his
part to disregard the administrative
directions given by the Chief
Justice of the High Court and to sit
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singly to take up matters that he
thought he should take up. Even if
he was originally shown as
sitting singly on 22 -12-1995,
when the Bench was
reconstituted and he was so
informed, he was required to
sit in a Division Bench on that
day and was bound to carry out
this direction.‖
53. I may, then, refer to the case of
State of Rajasthan v. Prakash Chand and others ,
reported in 1998 (1) SCC 1 , wherein at paragraph
22, their Lordships have said thus :
“ 22. ………………… a
catena of authorities, rejected the
arguments of the learned counsel
and opined that the order of the
Chief Justice, on an application
filed by the Chief Standing
Counsel, to refer a case, which was
being heard by the Division Bench,
for hearing by a larger Bench of
three Judges because of the
peculiar facts and circumstances as
disclosed in the application of the
Chief Standing Counsel, was a
perfectly valid and a legally sound
order.‖
54. Then, in paragraph 23 of Prakash
Chand (supra), their Lordships held thus:
“23. …………..No legal
system can permit mac hinery
of the Court to collapse. The
Chief Justice has the authority
and the jurisdiction to refer
even a part-heard case to a
Division Bench for its disposal
in accordance with law where
the Rules so demand. It is a
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complete fallacy to assume that
a part-heard case can under no
circumstances be withdrawn
from the Bench and referred to
a larger Bench, even where the
Rules make it essential for such
a case to be heard by a larger
Bench.‖
55. There are other decisions of the
Supreme Court, which clearly lay down that the Chief
Justice of a High Court is clearly the Master of the
Roster. [See (2006) 8 SCC 294, (2008) 3 SCC 542
and (2010) 10 SCC 320 ]. In the present case, the
Division Bench in the first PIL, clearly held that the
matter of suspension of Shri Kuldip Narayan could not
be made subject matter in a PIL and until the time a
permanent arrangement is made by the State
Government by withdrawing suspension of Shri Kuldip
Narayan, functions of the Patna Municipal Corporation.
Though the directions aforementioned were passed in
the post lunch sessions, on 15.12.2014, in the first
PIL, the Division Bench, in the second PIL, on the
same very day, i.e., in the pre lunch sessions, on
15.12.2014, entertained interlocutory application of
Shri Kuldip Narayan for staying and setting aside his
order of suspension passed by the State Government.
This was not only entertained, but the order of
suspension was stayed effectively deviating from, and
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setting at naught, the order passed, in the first PIL,
that until the time a permanent arrangement is made
by the State Government by withdrawing suspension
of Shri Kuldip Narayan, functions of the Patna
Municipal Corporation. Clearly, the Division Bench, in
the second PIL, chose to differ from the order passed
on the same day earlier in the first PIL. Judicial
propriety does not permit this. It was open to the
Division Bench, while dealing with the second PIL, to
take a different view of the matter, but judicial
propriety and the Patna High Court Rules demanded
that in latter case, there being a difference of opinion,
the matter needed to have been referred by the
Division Bench, which was in seisin of the second
PIL, to a larger Bench instead of proceeding to decide
the matter on merits and even granting stay.
56. With regard to the above, I may only
refer to one decision of the Supreme Court in
Assistant Collector of Estate Duty v. Devaki
Ammal, reported in 1995 Supp (2) SCC 39, and, in
particular, what their Lordships have observed, in
paragraph 3, which reads as follows :-
― 3. We are at a loss to
understand how, once one Division
Bench of a High Court has held a
particular provision of law to be
constitutional and not violative of
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Article 14, it is open to another
Division Bench to hold that the
same provision of law is
unconstitutional and violative of
Article 14. Judicial discipline
demands that one Division Bench
of a High Court should, ordinarily,
follow the judgment of another
Division Bench of that High Court.
In extraordinary cases, whe re
the latter Division Bench finds
it difficult, for stated reasons,
to follow the earlier Division
Bench judgment, the proper
course is to order that the
papers be placed before the
learned Chief Justice of the
High Court for constituting a
larger Bench. Certainly, where
one Division Bench has held a
statutory provision to be
constitutional it is not open to
another Division Bench to hold
otherwise.‖
(Emphasis is supplied)
57. Thus, in my view, the stand that the
reference to Full Bench was incompetent o n the
grounds aforesaid has to be rejected. I would,
therefore, hold that there being a difference of opinion
and a real conflict of orders between the two Division
Benches in respect of the same issue, as rightly
submitted by the learned Principal Additional Advocate
General, the cases were rightly ordered to be placed
before a Full Bench; rather, in such a situation, it was
the duty of the Acting Chief Justice to do so to arrest
the conflicting orders to continue. I may add that the
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ultimate decision taken by the Chief Justice is an
administrative decision upon reference by a Division
Bench or even suo motu.
WHETHER PATNA HIGH COURT RULES, DEALING
WITH PIL, PROHIBITS MAKING OF REFERENCE TO
FULL BENCH?
58. Now, I may refer to the argument in
this regard independently made by Shri Jyoti Ranjan
Jha, Advocate. He argues that under the Patna High
Court Rules, there is Chapter XXI -CC dealing with
Public Interest Litigation. There being special rules for
PIL, the general rules would not apply. This Chapter
does not provide for reference to Full Bench and, as
such, no PIL could be referred to Full Bench. The
rules, relating to PIL, are not exhaustive. They touch
upon only certain aspects. We may refer to Rules 8
and 9 of this Chapter, which are quoted hereunder
and they themselves in clear terms demolish the
argument of the learned counsel :
― Chapter XXI-CC-
Rules of Patna High Court to deal
with Public Interest Litigations.
xx xx xx
xx xx xx
8. The procedure for
dealing public interest litigation
shall otherwise be the same as that
for a Civil Writ Jurisdiction case
requiring consideration by a
Division Bench, usually headed by
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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the Chief Justice or by any other
Bench assigned by the Chief
Justice.
9. The procedure in these
Rules shall be without prejudice to
the power of the Court under
Articles 226 and 227 of the
Constitution under which the Bench
hearing a PIL, may in the interest
of justice and to promote public
interest devise special procedure
for satisfying itself with the
credentials and bona fide of the
petitioner and also to find out
relevant facts deemed necessary
for the purpose of the case.‖
59. From the provisions embodied in
Chapter XXI-CC relating to the rules of the Patna High
Court, which deals with Public Interest Litigation, it is
made clear that the procedure for dealing with Public
Interest Litigation shall be, except as has been
provided, in the rules of the Patna High Court, dealing
with Public Interest Litigation, the same procedure
shall be applied which is resorted to in the case of a
case of civil writ jurisdiction and that the procedure so
prescribed, shall be without prejudice to the power of
the Court under Articles 226 and 227 of the
Constitution of India.
60. Here, I would also like to consider
the decision of the Supreme Court in Gopakumar B.
Nair v. CBI and another, reported in (2014) 5 SCC
800, as cited by Mr. Giri. He submits that the larger
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Bench can overrule a question of law, but cannot undo
inter party orders. As a proposition of law, this
submission is wholly correct. However, this proposition
of law does not apply to the facts of the present
proceedings as the Full Bench has been constituted to
consider the correctness of an approach and the cases
as a whole, with the proceedings therein, have been
placed before the Bench, so that divergence in the
proceedings be arrested, otherwise, a Division Bench
would proceed in the same matter in an opposite
direction of a binding precedent in relation to the
same person, which is a most undesirable state of
affairs for a judicial system. There has to be
consistency in judicial approach.
WHETHER THE STATE GOVERNMENT CEASES TO
HAVE POWER TO SUSPEND AN OFFICER OF
INDIAN ADMINISTRATIVE SERVICE IF HE IS
APPOINTED AS COMMISSI ONER, PATNA
MUNICIPAL CORPORATION?
61. Now, I may come to the second line
of submission made by Mr. Giri. He submits that once
Shri Kuldip Narayan, IAS, was appointed as Municipal
Commissioner, State Government was incompetent to
take any disciplinary action against him, when he was
under the control of the Municipal Corporation, which
alone was competent to take any action. Since the
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submission so made by Mr. Giri, learned Senior
Counsel, relates to legality or merit of the suspension
order, I would consciously refrain myself from making
any observation on this aspect of the submissions of
Mr. Giri; more so, when I am clearly of the view that
neither an interlocutory application nor even a
substantive application, relating to service dispute,
could have been entertained in a pending PIL
inasmuch as the suspension order was passed pending
drawing of disciplinary proceedings or in
contemplation thereof and was, thus, a purely service
matter, unless the dispute required issuance of a writ
in the nature of quo warranto, which is not the case at
hand.
62. Though, I am clearly of the view that
the interlocutory application, made by Shri Kuldip
Narayan, seeking stay and quashing of the order of his
suspension, was not entertainable in the second PIL,
yet in order not to be seen evasive, I record the
reasons for not accepting the contention of Mr. Y. V.
Giri, learned Senior Counsel, that the State
Government was not competent to take disciplinary
action against Shri Kuldip Narayan. These reasons are,
however, for the purpose of rejecting the submissions
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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so made on behalf of Shri Kuldip Narayan. No doubt,
in terms of proviso to sub-section (7) of Section 36 of
the Bihar Municipal Act, 2007, if the Empowered
Standing Committee of the Municipal Corporation so
decides, the State Government is obliged to terminate
the appointment of such officer; yet this Section itself
authorizes the State Government to terminate such an
appointee made by it. For convenience, Section 36(7)
of the Bihar Municipal Act, 2007, is quoted
hereunder:-
―36. Officers of
Municipality –
xx xx xx xx
xx xx xx xx
(7) Notwithstanding
anything contained in the foregoing
provisions of this section, the State
Government may, at any time, in
the case of any person appointed
to any post referred to in sub -
section (1), terminate his
appointment :
Provided that if, in
the case of any such officer, the
empowered Standing Committee so
decides, the State Government
shall terminate the appointment of
such officer.‖
63. That apart, there is a fundamental
flaw in the argument of Mr. Giri, learned Senior
Counsel. Shri Kuldip Narayan was appointed as
Municipal Commissioner by virtue of his being an
officer of the Indian Administrative Service, the cadre
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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controlling authority whereof is the State Government.
The disciplinary control of any officer of this cadre
flows from All India Service (Disciplinary and Appeal)
Rules, 1961, and, in particular, Section 3 thereof. That
power of the State Government cannot be stultified in
any manner and that power is an absolute power of
the cadre controlling authority over the officers in the
cadre.
64. Notwithstanding appointment of an
IAS officer as a Municipal Commissioner, he does not
cease to be an IAS Officer. He is merely deputed, as
such, to perform the function of the Municipal
Commissioner as by law provided. He remains under
the disciplinary control of the State. I, therefore, agree
with the submission of the learned Principal Additional
Advocate General and reject the contention as raised
by Mr. Giri, in this regard, by holding that the
appointment of a Municipal Commissioner is by virtue
of an appointment of IAS with the State Government
as a Cadre Controlling Authority and this control does
not cease to exist merely because an IAS Officer has
been appointed as a Municipal Commissioner. The
Cadre Controlling Authority has the power to suspend
the officer even if he is on deputation.
WAS CONTEMPT PROCEEDING DRAWN OR
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ATTEMPTED TO BE DRAWN IN THE PRESENT
CASE?
65. However, if the second Division
Bench, in the second PIL, was of the view that the
order, placing Sri Kuldip Narayan under suspension,
constituted contempt of Court, notices ought to have
been issued, in this regard, to the person or persons
concerned; whereas no such step was taken. Far from
this, the order of suspension was itself stayed. If Shri
Kuldip Narayan‟s suspension had been ordered for
misappropriation of the funds of Patna Municipal
Corporation, could his suspension have been stayed,
in the second PIL, on the ground that his transfer
without Court‟s leave had been prohibited a nd his
suspension for alleged misconduct of fund of Patna
Municipal Corporation was mala fide and tantamount
to setting at naught the said restraint order passed in
the said PIL? The answer has to be, and can only be,
an emphatic „no‟.
66. There is yet another aspect, which
needs to be dealt with, though this aspect would not
have been required to be dealt with except for the
reason that a specific submission has been made,
which constrains the Court to deal with the same.
CONDUCT OF SHRI KULDIP NARAYAN
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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QUESTIONED
67. Appearing on behalf of Shri Kuldip
Narayan, Mr. Y. G. Giri, learned Senior Counsel, has
submitted that Shri Kuldip Narayan, though a party to
the first PIL, relating to solid waste management, he
was, actually not responsible for the project and it was
Additional Commissioner, Patna Municipal Corporation,
who was the one responsible in terms of the orders
passed in the second PIL, relating to High rise
building.
68. Since the above aspect of the
submission made on behalf of Shri Kuldip Naraya n,
relates to the merit of his suspension, I would merely
comment that it was never brought to the notice of
the Court, in the first PIL, that Shri Kuldip Narayan
was not responsible for the project, which forms the
subject matter of the first PIL. Contrary thereto, Shri
Kuldip Narayan had all along been represented by his
learned Counsel and he has, in fact, entered personal
appearance, in the first PIL, to explain as to why the
project was being delayed, though the project was
wholly indispensable in order to do away with the
environmental and health hazard, which had been
affecting the residents of the locality in the area,
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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where the solid waste is being dumped.
69. Either, therefore, Shri Kuldip
Narayan had been misleading the Court, in the first
PIL, all along or he is, now, trying to escape, because
the orders, passed in the first PIL, relating to the
solid waste management, indicate failure of Patna
Municipal Corporation and forms, according to his
suspension order, one of the grounds of his
suspension inasmuch as the order of suspension
mentions, inter alia, that there has been failure of Shri
Kuldip Narayan as Commissioner, Patna Municipal
Corporation, in dealing with the issue of dumping of
solid waste.
70. At the cost of repetition, it is only
because Mr. Y. V. Giri, learned Senior Counsel,
vehemently argued, I have noticed these arguments
for its rejection; otherwise, the question of merit or
demerit of suspension order cannot, in my considered
opinion, be made a subject-matter of determination in
a PIL. As already held, Shri Kuldip Narayan had the
remedy before Central Administrative Tribunal or in a
separate writ, but not in PIL, by way of interlocutory
application.
WAS ANY PREJUDICE CAUSED TO THE
PETITIONERS, IN THE FIRST PIL, BY
CONSTITUTION OF THIS FULL BENCH? OTHER
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MISCELLANEOUS SUBMISSIONS MADE BEFORE
THIS BENCH
71. Now, coming to the submission of
Mr. Shreeprakash Srivastava, Advocate, suffice to say,
as I have already noted, that he could not point out as
to how he was at all prejudiced by the reference to
Full Bench. How his writ petition was to be adversely
affected in any manner, he could not point out.
72. In short, therefore, the first PIL,
relating to solid waste management, is not affected by
the present controversy and the petitioners of the first
PIL, relating to solid waste management, cannot raise
any objection to the reference being made to the Full
Bench. Interestingly though, Mr. Vitesh Kumar Singh,
learned Counsel for the petitioner in the second PIL,
has not made any specific submission in this regard.
73. Though I. A. No. 59 of 2015 has
been filed by an association of retired IAS Officers and
though time was taken to make submissions, on
behalf of the applicants, by Mr. Vinod Kanth, learned
Senior Counsel, none, eventually, appeared to press
this application and I. A. No. 59 of 2015 stands,
therefore, rejected.
ATTEMPT TO SCANDALIZE THIS FULL BENCH
74. Now, I may deal with I.A. No. 108 of
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2015 filed in C.W.J.C. No. 8152 of 2013. T his
interlocutory application has been filed by Mr. Prasoon
Sinha, Advocate, strictly in his individual capacity. It
has not been filed on behalf of any of the parties to
the writ petition, much less on behalf of Shri Kuldip
Narayan or on his instructions. By this application, he
has sought Justice Navaniti Prasad Singh to recuse
from being a Member of the Full Bench and hearing
this matter on the ground of likelihood of bias against
Shri Kuldip Narayan. Once again, I would note that
Shri Kuldip Narayan has raised no such apprehension.
What was the interest of Shri Prasoon Sinha,
Advocate, is not understood except to embarrass and
scandalize the Court. The Advocate General, as also
the Principal Additional Advocate General, have
strongly opposed the said application contending that
it is scandalous, unbecoming for an Advocate being an
officer of the Court and verges on contempt. On the
other hand, Mr. Kumar Amitesh Chandra, learned
Counsel, as noted earlier, placed on record some
orders of different Courts in different proceedings,
wherein different Benches, including that of Justice V.
N. Sinha, had passed severe strictures against Shri
Kuldip Narayan. Mr. Kumar Amitesh Chandra
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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questioned the bona fide of Shri Prasson Sinha,
Advocate, in choosing to ignore th ese orders and
strictures, while raising the plea of likelihood of bias
against one Member of the Full Bench.
75. Firstly, I would like to note that the
plea of bias or likelihood of bias is a personal plea to
be raised by a litigant at the earliest opportunity.
Here, I may specifically note that though Shri Kuldip
Narayan filed an interlocutory application seeking
personal relief for stay of his suspension order and its
quashment and, as noted earlier, he also filed an
interlocutory application questioning the legality of the
reference to Full Bench and was represented by the
learned Senior Counsel Mr. Y. V. Giri, there is,
nowhere, a whisper with regard to likelihood of bias as
against any Member constituting the Full Bench. In
this perspective, it is curious as to why and how Shri
Prasoon Sinha, as an independent Advocate, could
raise such a plea of likelihood of bias at all. It must be
remembered that an Advocate is first an officer of the
Court. He is never permitted to identify himself with
the cause or the case of any litigant. No Advocate, at
large, can intervene in any proceeding inter party.
Obviously, the interlocutory application, moved by Mr.
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Prasoon Sinha, in his individual capacity, lacks bona
fide. As rightly submitted by learned Advocate General
and learned Principal Additional Advocate General, it is
only to scandalize and embarrass the Court so that
this Full Bench does not hear the matter. One must
remember that the PIL means a Public Interest
Litigation and not a personal interest litigation or a
publicity interest litigation. Courts cannot permit Public
Interest Litigation to be degenerated into either a
personal interest litigation or a publicity interest
litigation. It is totally an unprofessional and unethical
conduct for a lawyer of the standing of Mr. Prasoon
Sinha.
76. In his affidavit, Mr. Prasoon Sinha,
Advocate, has referred to a case, being M.J.C. No.
3939 of 2014, arising out of C.W.J.C. No. 23620 of
2013, which was filed for initiating a proceeding of
contempt against, inter alia, Shri Kuldip Narayan, the
Municipal Commissioner. Mr. Prasoon Sinha has made
insinuations against Justice Navaniti Prasad Singh,
who was dealing with the said case, noting various
oral observations, which, allegedly, took place during
the court proceedings. Fortunately, he has annexed
the order passed in those proceedings (Annexure
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RR/B). Nothing of what he has said in his affidavit is
borne out by the records, much less by the final order,
which was passed in the case. I would like to note the
concluding part of the order, dated 07.11.2014,
passed by Justice Navaniti Prasad Singh, in the
aforesaid C.W.J.C. No. 23620 of 2013, which reads
thus,
“07.11.2014- xx xx xx
xx
xx xx xx
xx
6. It would, thus, be
appropriate for the petitioner to
move the Tribunal and seek
appropriate relief in relation to the
stay matter while the matter is
pending before it and the Tribunal
would be competent to pass such
order as it would deem fit and
proper in the facts and
circumstances of the case.
7. This Court, in the
peculiar facts of this case, would
not like to observe anything further
and the proceedings stand
terminated.
8. With these observations
and directions, this contempt
petition stands disposed of.‖
Sd-/
Navaniti Prasad Singh, J‖.
77. Then, Mr. Prasoon Sinha refers to
certain communications as between the Collector,
Munger, and the father of Justice Navaniti Prasad
Singh, some of which communications are said to
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have been made when Shri Kuldip Narayan was the
Collector of the said district. How did Mr. Prasoon
Sinha get these correspondences has not been
disclosed by him. Who gave those papers to him is not
disclosed by him. They are official communications
from the Collector to an individual. Mr. Prasoon Sinha
discloses them to be bas ed upon his personal
knowledge in the affidavit in support of the
application. Apart from the fact that it does not involve
Justice Navaniti Prasad Singh in any way, much less to
raise a plea of likelihood of bias, it is not even raised
by Shri Kuldip Narayan. All I can reply is what the
Supreme Court observed in the case of Ashok Kumar
Pandey (supra) and, in particular, paragraph 16
thereof in regard to such document, as quoted
hereinafter :.
“16. The other
interesting aspect is that in the PIL,
official documents are being
annexed without even indicating as
to how the petitioner came to
possess them. In one case, it was
noticed that an interesting answer
was given as to its possession. It
was stated that a packet was lying
on the road and when out of
curiosity the petitioner opened it,
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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he found copies of the official
documents. Whenever such
frivolous pleas are taken to explain
possession, the courts should do
well not only to dismiss the petition
but to also impose exemplary
costs. It would be desirable for the
Court to filter out frivolous
petitions and dismiss them with
costs as aforestated so that the
message goes in the right direction
that petitions filed with oblique
motive do not have the approval of
the courts.‖
78. I say no more.
79. There is yet another pleading in the
application filed by Mr. Prasoon Sinha, Advocate. I
wonder from where Mr. Prasoon Sinha, Advocate, got
the same. It is an order passed by Justice Navaniti
Prasad Singh in C.W.J.C. No. 21170 of 2013, being
order, dated 28.11.2013, wherein upon allegations of
bias being made, even though not founded on facts
and not found to be correct, the Court recuse itself
from the proceedings. That order is annexed as
Annexure RR/G to the affidavit of Mr. Prasoon Sinha.
Probably, Mr. Sinha wants to use it as a binding
precedent on Justice Navaniti Prasad Singh. I fail to
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see what is the relevance thereof in the present
matter. There the petitioner, for whatever it may be
worth, had the courage to stand up and allege the
apprehension of bias. He was not stranger to the
proceedings, who had raised the plea. Commensurate
to the majesty of the Court, though Justice Navaniti
Prasad Singh was not bound to recuse himself, yet in
larger interest of justice as “Justice is not only to be
done but seems to be done”, he recused himself. That
cannot be used as a precedent. A warning is
necessary. If such practice is allowed, then, any party
can choose to say anything and embarrass a Court
and manage to get its case transferred. That would
not be conducive to the judicial system. It is because
of this that I am constrained to observe that Shri
Prasoon Sinha, Advocate, failed to appreciate the
responsibility, which an Advocate owes to a Court. As
rightly submitted by the learned Advocate General, it
is a petition only to scandalize and embarrass the
Court with oblique motive verging on contempt. No
more words are necessary to express the anguish of
the Court on such a conduct of an officer of the Court.
80. As noted earlier, Mr. Kumar Amitesh
Chandra, Advocate, filed a number of order-sheets of
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different Courts and Benches, wherein severe
strictures were passed against Shri Kuldip Narayan.
He has filed an order passed, on 14.05.2010, in
C.W.J.C. No. 3637 of 2010, wherein my esteemed
brother, V. N. Sinha, has made the judgment in the
following manner:-
―14.05.2010- xx xx xx
xx xx
xx
Such approach of the
Collector of the district much less a
lesser revenue authority serving
under him speaks ill of the State
administration and this Court does
not approve of such conduct on the
part of the Collector. Collector
being the highest revenue
authority in the district if behaves
in a manner which is even worse
than a private litigant the condition
of the ordinary citizen who is
residing within his jurisdiction is for
any one to imagine. Having set
aside the order passed by the
Collector, I all upon the State
Government to look into the
conduct of the Collector and take
appropriate action against him.‖
CONCLUDING REMARKS AND DECISION
81. It may be mentioned that the
Collector, in question, was none other than Shri Kuldip
Narayan. In my view, Mr. Kumar Amitesh Chandra,
Advocate, is correct in challenging the bona fide of Mr.
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Prasoon Sinha in ignoring those strictures as given by
one of the members constituting this Full Bench, while
making out a case against another member of the Full
Bench on the ground of likelihood of bias. This leads
one to the lone and only conclusion, the conclusion
being that the application filed by Mr. Prasoon Sinha,
Advocate is not prompted by any public spirit and this
petition deserves and needs to be rejected. The
application is accordingly rejected.
82. By I.A. Nos. 9357 and 9359, both of
the year 2014, in the second PIL, i.e., CWJC No.
8152 of 2013, since the State Government has sought
for permission to withdraw Shri Kuldip Narayan from
the post of Commissioner, Patna Municipal
Corporation, it would be appropriate for the Bench,
which would further deal with the matter to consider
those applications at the first instance in accordance
with law.
83. In the result, I dismiss I.A. No. 9094
of 2014, filed by Mr. Kumar Amitesh Chandra, in
C.W.J.C. No. 8152 of 2013, as not maintainable.
Similarly, I.A. No. 9327 of 2014, filed in C.W.J.C. No.
8152 of 2013, by Shri Kuldip Narayan, challenging
therein his suspension and praying for its stay and
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quashment, is also dismissed. I further dismiss I.A.
No. 9498 of 2014, filed by Shri Kuldip Narayan, in
C.W.J.C. No. 8152 of 2013, objecting to the reference
to Full Bench, I.A. No. 9508 of 2014, in C.W.J.C. No.
8152 of 2013, on behalf of some of the Municipal
Councillors, for impleadment in opposition to the
suspension order of Shri Kuldip Narayan by the State
Government, I.A. No. 91 of 20 15, in C.W.J.C. No.
20570 of 2012, by the writ petitioner opposing
reference to Full Bench and I.A. No. 108 of 2015 filed
by Mr. Prasson Sinha, Advocate, in C.W.J.C. No. 8152
of 2013.
84. The divergence having been
arrested, it would, perhaps, be for the cases to be
reverted for further hearing by appropriate Bench. Let,
therefore, these PILs be laid before Hon‟ble the Chief
Justice for consideration if the PILs need to be taken
up by a regular Bench, when the purpose of
constituting Full Bench is over.
(I. A. Ansari, J.)
Prabhakar Anand
(Per: HONOURABLE MR. JUSTICE V. N. SINHA)
Having gone through the erudite opinion of my
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esteemed brother Ansari, J, I express my inability to agree
with the same, hence, with utmost humility, proceed to
record my own opinion in the matter.
2. Before I consider the prayer made in I.A.
No. 9327 of 2014, it is necessary to notice few facts.
Present Public/Social Interest Litigation was filed by
Narendra Mishra asserting that a multi -storeyed
apartment/complex is being raised in an 8 ft. wide lane off
the East Boring Canal Road, Patna. The law, howeve r,
requires minimum 20 ft. wide road for raising such
apartment/complex. During hearing of the writ petition this
Court noticed under order dated 02.07.2013 that several
other apartment/complex, 449 in number, have also been
raised in violation of the building bye-laws and the
different orders passed by this Court in the case of Arun
Kumar Mukherjee Vs. State of Bihar (C.W.J.C. No.
2290 of 1990). Close perusal of order dated 02.07.2013
further indicates that thereunder this Court noticed the
order dated 15.11.1996 passed in the case of Arun
Kumar Mukherjee (supra) whereunder this Court
prohibited construction of high rise apartment on roads
less than 15 ft. wide. Notwithstanding the building bye -
laws and the order passed in the case of Arun Kumar
Mukherjee (supra) mushroom growth of illegal
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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apartments continued in the city of Patna over the years.
Even after matter was brought to the notice of the Court
complaining inertia on the part of the Patna Municipal
Corporation (hereinafter referred to as the “Corporation”)
to regulate the building activities in the city because of the
involvement of the mighty builders‟ lobby, the apathy of
the Corporation to regulate the building activities,
construction of the high rise building, contrary to the
building bye-laws, continued, leading to mushroom growth
in the number of apartments infracting the bye -laws
affecting the life of the common man. The continued
inertia of the Corporation to take action against those who,
violating the building bye-laws, raised apartments made it
necessary for this Court to direct the Corporation under
order dated 02.07.2013 to proceed and take action against
449 apartments which have already been identified as also
to finalize the case of 771 persons to whom notice has
been issued seeking details of the constructions raised by
them. This Court having realized that mere issue of
mandamus directing the Corporation to perform its legal
duty would be futile, it decided to keep the matter pending
and issued direction from time to time requiring the
Corporation to report progress of the action taken against
those who have raised building violating the building bye-
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laws or even without obtaining necessary sanction.
3. Having passed order dated 02.07.2013 this
Court again listed the matter on 08.07.20 13 at its own
instance and observed that while finalizing the order dated
02.07.2013 Court felt the need for an additional direction
with regard to tenure of posting/ frequent transfer of
Municipal Commissioner, Patna causing hindrance in
enforcement of building bye-laws placing reliance on the
observation made by this Court under order dated
13.01.2000 passed in the case of Arun Kumar
Mukherjee (supra) directed that the present Municipal
Commissioner Sri Kuldip Narayan (I.A.S.) shall not be
transferred without its permission both for the purpose of
continuity and answerability. It would, therefore, appear
that this Court entrusted the job of enforcing the building
bye-laws by the Corporation to Sri Narayan whose transfer
from the Corporation was restrained by this Court
observing that he shall not be transferred without the
permission of the Court. State assailed the aforesaid order
dated 08.07.2013 by filing Special Leave to Appeal (Civil)
No. 20197/2013 which was disposed of under order dated
25.11.2013 observing as follows :
―Delay condoned.
We are not inclined to interfere
with the impugned order passed by the High
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Court by which the High Court has directed
that the Municipal Commissioner shall not be
transferred without the permission of the
Court. The State has not applied for permission
as yet to transfer the Municipal Commissioner.
In case, the State applies before the High Court
for permission and the same is rejected by the
High Court, it will be open for the petitioners to
move this Court under Art icle 136 of the
Constitution.
The Special Leave Petition is
disposed of with the aforesaid observations.‖
4. In the light of the order dated 08.07.2013
and the order of the Supreme Court dated 25.11.2013 Sri
Kuldip Narayan, Municipal Commissioner, Patna r emained
posted in the Corporation and through him this Court
continued to monitor the implementation of the building
bye-laws by the Corporation, which is evident from the
subsequent orders passed in the writ case from time to
time. Last order passed in this connection is Order No. 53
dated 27.11.2014, whereunder Sri Narayan, Municipal
Commissioner was directed to dispose of all the vigilance
cases in which he has concluded hearing and reserved the
case for orders as early as possible, in any case, by
15.01.2015 as undertaken by him in the third
supplementary affidavit. In the same order further
direction was given to Sri Narayan, Municipal
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Commissioner to dispose of other 274 vigilance cases
initiated in the year 2013, 2014 by taking up hearing of
those cases during day time further requiring Sri Narayan
to pass orders in those matters also soon after the orders
are passed in cases already reserved for orders
maintaining seriatim to ensure their disposal as well, as
early as possible, in any case, by 15.02.2015.
5. Counsel for the Corporation informed the
Bench dealing with the instant writ case on Friday i.e.
12.12.2014 that Government has passed order for
suspension of Sri Kuldip Narayan, Municipal Commissioner
whereafter the Bench directed that the matter be listed on
15.12.2014 with further direction to the State counsel to
seek instruction in the meanwhile. In the light of the
aforesaid direction writ case was placed before the Bench
dealing with the same on Monday i.e. 15.12.2014 in the
afternoon session when I.A. No. 9327 of 2014 was filed by
Sri Kuldip Narayan, Municipal Commissioner assailing the
resolution dated 12.12.2014 suspending him from the post
of Municipal Commissioner. In response to the prayer
made in the said Interlocutory Application Bench was
informed by Principal Additional Advocate General that the
resolution suspending Sri Kuldip Narayan was placed
before a Coordinate Bench of this Court today itself in the
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forenoon when Coordinate Bench was considering another
Public Interest Litigation relating to Solid Waste
Management Project and Coordinate Bench observed that
in a Public Interest Litigation suspension order of an officer
cannot be assailed/ questioned. The Bench hearing
Narendra Mishra matter (C.W.J.C. No. 8152 of 2013) in the
afternoon of 15.12.2014 observed that it is cognizant of
the legal position that even if transfer of a Government
servant is stayed by the Court, the Government servant
can still be placed under suspension by the Disciplinary
Authority but went on to further observe that aforesaid
legal position is not applicable to the facts of the present
case in the background of the order dated 02, 08.07.2013
passed in the case of Narendra Mishra (C.W.J.C. No. 8152
of 2013) and the order of the Supreme Court dated
25.11.2013 whereunder Supreme Court disposed of the
Special Leave Petition filed against the order dated
08.07.2013 observing that the State has not yet applied
for permission to transfer the Municipal Commissioner but
has approached the Supreme Court and further ob served
that in case the State applies before the High Court for
permission and the same is rejected by the High Court it
will be open for the State to move the Supreme Court
under Article 136 of the Constitution. The State having not
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applied for permission before the Bench hearing Narendra
Mishra case (C.W.J.C. No. 8152 of 2013) to either transfer
or suspend the Municipal Commissioner, it directed the
State in the afternoon of 15.12.2014 to produce the file in
which proposal to place Sri Kuldip Narayan unde r
suspension was considered before the Bench tomorrow i.e.
16.12.2014 at 2.15 P.M. and until then stayed the
operation of the resolution suspending Sri Kuldip Narayan.
On 16.12.2014 Principal Additional Advocate General
produced the concerned Government file before the Bench,
as was directed under order dated 15.12.2014, whereafter
counsel for Sri Kuldip Narayan and Principal Additional
Advocate General were heard, Government files and copy
of the order passed by the Coordinate Bench in C.W.J.C.
No. 20570 of 2012 on 15.12.2014 in the forenoon was
retained by the Bench and final order on the aforesaid
Interlocutory Application filed by Sri Kuldip Narayan
reserved with further direction that the interim order
passed by the Bench on 15.12.2014 shall continue un til
final order is passed on the Interlocutory Application.
6. Principal Additional Advocate General
mentioned C.W.J.C. No. 20570 of 2012 before the
Coordinate Bench on 17.12.2014 and brought to its notice
that another Bench of this Court in I.A. No. 9327 of 2014
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arising out of C.W.J.C. No. 8152 of 2013 has made
observations, passed direction in the afternoon of
15.12.2014 contrary to the observation and direction
passed by it in the forenoon of 15.12.2014 in C.W.J.C. No.
20570 of 2012 and that State is placed in a situation that
it is unable to effectively deal with the situation as
conflicting observations, directions and orders have
emanated from two different Benches of this Court which
may impair administration of justice and undermine
majesty of Rule of Law. Principal Additional Advocate
General further brought to the notice of the Coordinate
Bench that if the Bench in seisin of I.A. No. 9327 of 2014
in the afternoon of 15.12.2014 was of the opinion that it is
required to take a different view from the one expressed
under order dated 15.12.2014 passed in C.W.J.C. No.
20570 of 2012 in the forenoon directing Mr. Kapil Ashok to
appear on behalf of the Corporation in C.W.J.C. No. 20570
of 2012 as the Incharge Municipal Commissioner, it would
have been appropriate for the Bench dealing with the
matter in the afternoon of 15.12.2014 to have referred the
writ case and I.A. No. 9327 of 2014 to a Larger Bench for
necessary decision. The Coordinate Bench having found
substance in the submissions made by learned Pri ncipal
Additional Advocate General, more particularly when it
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noticed that the order dated 15.12.2014 passed in the
afternoon in I.A. No. 9327 of 2014 set at naught the
observation and direction given in order dated 15.12.2014
passed in C.W.J.C. No. 20570 of 2012 in the forenoon,
observed under order dated 17.12.2014 that the Bench
dealing with I.A. No. 9327 of 2014 has not expressed any
view that the impugned order of suspension, the subject
matter of I.A. No. 9327 of 2014, can be legally set aside
and quashed in a Public Interest Litigation and considering
the matter in its entirety observed in the interest of justice
that a Larger Bench needs to be constituted for the
purpose of dealing with both C.W.J.C. No. 20570 of 2012
as also I.A. No. 9327 of 2014 arising out of C.W.J.C. No.
8152 of 2013 to arrest the conflicting directions emanating
from two different Benches of the High Court and directed
the Registry to place the matter on its administrative side
before Hon‟ble the Chief Justice (Acting) for consideration
if a Larger Bench needs to be constituted.
7. In the light of the observation/ direction
contained in order dated 17.12.2014 passed in C.W.J.C.
No. 20570 of 2012 Acting Chief Justice referred both
C.W.J.C. Nos. 20570 of 2012, 8152 of 2013 and the
Interlocutory Applications filed in the two writ petitions
before a Full Bench so as to arrest the conflicting directions
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emanating from two different Benches of this Court.
8. Learned counsel for the writ petitioners in
C.W.J.C. Nos. 8151 of 2013, 20570 of 2012, 9574 of 2012,
11781 of 2014 and 16050 of 2014, counsel for the
Corporation and its Commissioner, other Interlocutory
Applicant(s) as also the counsel for 41 Ward Councillors of
the Corporation assailed the reference order dated
17.12.2014 passed in C.W.J.C. No. 20570 of 2012 and
submitted that if the order dated 15.12.2014, 17.12.2014
passed in C.W.J.C. No. 20570 of 2012 is closely examined
there is no point of law which comes as a precedent i.e.
proposition of law as laid down in the decision. Decision is
a precedent if it decides question of law. The only
exceptions are principles of per incurium and sub silensio.
It is submitted that in the absence of any point of law the
case may not be referred before the Full Bench. It is well
settled that certainty of law cannot be sacrificed for
bringing uniformity, however, in the absence of point of
law, the case could not be referred to the Full Bench. The
extension of law based on competing versions of legal
propositions cannot be placed for consideration before the
Full Bench. According to learned counsel reference order
has been passed in teeth of the provisions of Patna High
Court Rules contained in Chapter II Rule 11 and Chapter V
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Rule 1. In support of their submission reliance is placed on
the judgment of the High Court in the case of An
Advocate Vs. The Registrar, Patna High Court and
ors. 1990 BBCJ 813 , Supreme Court in the case of Sub-
Committee of Judicial Accountability Vs. Union of
India and others (1992) 4 Supreme Court Cases 97
Paragraph 5 as also the judgment of this Court in the
case of The High Court of Judicature at Patna Vs.
Ramawatar Singh, Deputy Director of Computer,
High Court, Patna 1993(1) PLJR 644 Paragraphs 9,
26, 26-A, 27 and with reference to the Constitution Bench
judgment of the Su preme Court in the case of Sub-
Committee of Judicial Accountability (supra) it is
submitted that reference made to examine the correctness
of the order dated 15.12.2014 passed in the case of
Narendra Mishra (C.W.J.C. No. 8152 of 2013) while
hearing Interlocutory Application No. 9327 of 2014 filed by
Sri Kuldip Narayan is not permissible as no Coordinate
Bench can even comment upon, let alone sit in judgment
over the discretion exercised or interim order rendered in a
cause or a matter before another Coordinate Bench. With
reference to the judgment in the case of The High Court
of Judicature at Patna Vs. Ramawatar Singh (supra) it
is submitted that the Division Bench of this Court in the
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said case held that a bare perusal of Rules 10, 10A of
Chapter II of the Patna High Court Rules would indicate
that the Rules put an express bar on the powers of Hon‟ble
the Chief Justice to do anything with regard to a pending
matter before a Bench and submitted that while referring
C.W.J.C. No. 20570 of 2012 for being heard by a Full
Bench under order dated 17.12.2014 the Coordinate Bench
ought not to have referred C.W.J.C. No. 8152 of 2013 for
being heard by the Full Bench along with C.W.J.C. No.
20570 of 2012. In this connection they further pointed out
that there is no conflict at all in the two orders passed on
15.12.2014 in C.W.J.C. Nos. 20570 of 2012, 8152 of 2013
and to arrest the same reference of the two matters to the
Full Bench is necessary, as according to learned counsel
while granting interim stay of resolution of the
Government dated 12.12.2014 placing Sri Kuldip Narayan
under suspension the Bench under orders dated 15,
16.12.2014 granted interim stay, reserving final orders on
the Interlocutory Application filed by Sri Kuldip Narayan
has itself observed that the Bench is cognizant of the legal
position as even if transfer of a Government servant is
stayed by the Court in Public Interest Litigation the officer
can be placed under suspension by the Disciplinary
Authority but the said legal position is not applicable to the
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case of Sri Kuldip Narayan as Sri Narayan was entrusted
with the task of effective implementation of the building
bye-laws by the Patna High Court in C.W.J.C. No. 8152 of
2013 and to ensure such task the Bench directed the
Government not to transfer the present Municipal
Commissioner Sri Kuldip Narayan without obtaining its
permission. It is submitted that by placing Sri Narayan
under suspension without obtaining permission from the
Bench the Government has nullified the entrustment made
by the Bench to Sri Narayan in C.W.J.C. No. 8152 of 2013
to effectively implement the building bye -laws without
seeking its permission and in appreciation of such fact the
Bench proceeded to grant interim stay of suspension,
which fact was not brought to the notice of the Coordinate
Bench when it proceeded to observe under order dated
15.12.2014 passed in the forenoon that susp ension order
of an officer cannot be the subject matter of Public Interest
Litigation. Learned counsel for the petitioners in the case
of Suresh Prasad Yadav (C.W.J.C. No. 20570 of 2012)
additionally submitted that his consent has not been
obtained by the Principal Additional Advocate General on
17.12.2014 before mentioning the matter for making
reference and that reference order dated 17.12.2014 was
passed behind his back.
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9. Learned counsel for the Corporation further
submitted that the order of the High Court dated
08.07.2013 having become final inter party cannot be
challenged before the Full Bench as according to him
reference to a Larger Bench necessarily has to be for
reconsideration of the principle of law on which the case
has been decided or interim order passed and not the
merits of the decision. In this connection he relied on the
judgment of the Supreme Court in the case of
Gopakumar B. Nair Vs. C.B.I. & Anr. 2014(2) PLJR
432 (SC) Paragraph 12 and submitted that order dated
08.07.2013 having been challenged before the Supreme
Court and the challenge failed as the Special Leave to
Appeal was disposed of under order dated 25.11.2013 with
liberty to the State to seek permission of the High Court
before removing Sri Narayan from the Corporation the
State could not have suspended Sri Narayan without
seeking leave from the High Court. In case, leave was
refused by the High Court, the State had option to
approach the Supreme Court but the State with a view to
defeat the aforesaid order of the High Court a nd the
Supreme Court chose to suspend Sri Narayan under
resolution dated 12.12.2014. In appreciation of such fact
and to continue the entrustment made to Sri Narayan to
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enforce the building bye-laws High Court has stayed the
operation of resolution under interim order dated 15,
16.12.2014 the only option before the State is to assail the
said interim order before the Supreme Court and not
before the Full Bench.
10. Learned counsel also submitted with
reference to the judgment of the Supreme Court in the
case of Shankara Cooperative Housing Society Ltd.
Vs. M. Prabhakar and others (2011) 5 Supreme Court
Cases 607 Paragraphs 73, 74 that suspension order of
Sri Kuldip Narayan tantamounts to his removal from the
Corporation nullifying the entrustment made by th e High
Court to Sri Narayan under order dated 08.07.2013 duly
approved by the Supreme Court under order dated
25.11.2013 to effectively implement the building bye-laws
without seeking its permission, the suspension of Sri
Narayan is a nullity as the same has been passed ignoring
the aforesaid order of the High Court, Supreme Court,
which have become final.
11. Learned counsel for the Corporation further
submitted that the Corporation is an independent
autonomous body of local self governance established in
the light of Part-IX-A of the Constitution of India and Bihar
Municipal Act, 2007(hereinafter referred to as the Act),
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Section 41 whereof empowers the State to withdraw the
Municipal Commissioner as he is a member of the Indian
Administrative Service (Bihar Cadre) and according to
learned counsel so long Sri Kuldip Narayan continued on
deputation with the Corporation, he could not have been
suspended by the State until his services are withdrawn by
the Government from the Corporation. In this connection,
placing reliance on the judgment of the Supreme Court in
the case of Hukam Chand Shyam Lal Vs. Union of
India and others A.I.R. 1976 Supreme Court 789,
learned counsel for the Corporation submitted that it is
settled legal principle that where a Statute pro vides a
power to be exercised in a particular manner, that power
has to be exercised in that manner or not at all. It is
submitted that Sri Narayan was appointed Municipal
Commissioner in the Corporation by the State
Government, this Court directed that Sri Narayan be not
removed from the Corporation without its permission, as
such, to defeat such mandate of the High Court duly
approved by the Supreme Court Sri Narayan has been
placed under suspension without seeking permission from
the Court which tantamou nts to his removal from the
Corporation infracting the direction of the Court. In this
connection, learned counsel further submitted that Sri
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Narayan being an I.A.S. officer of the Bihar Cadre was
appointed as Municipal Commissioner in the Corporation
and so long he continued in the Corporation on the post of
Municipal Commissioner he remained under the
administrative control of the Empowered Committee of the
Corporation and until his services are withdrawn by the
State Government suo motu or in terms of t he resolution
of the Councillors, he could not have been placed under
suspension by the State Government and his suspension
tantamounts to infracting proviso to Section 41 of the Act.
12. Learned counsel for the Corporation and its
Commissioner next submitted that C.W.J.C. No. 20570 of
2012 was not on the cause-list on 17.12.2014. If the State
wanted any order to be passed in the said case, it was
required to request the Bench to notify C.W.J.C. No. 20570
of 2012 either in the cause-list or by a special notice after
obtaining consent of the learned counsel for the
petitioners, which was never obtained.
13. Learned counsel next submitted that the
State was not aggrieved in any manner in implementing
the order dated 15.12.2014 passed in C.W.J.C. No. 20570
of 2012 in the forenoon and the another order passed in
C.W.J.C. No. 8152 of 2013 passed on the same day in the
afternoon as it was the Municipal Commissioner who had
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to comply the same. The Municipal Commissioner‟s
presence on 19.12.2014 during hearing of C .W.J.C. No.
20570 of 2012 was the obligation of the Corporation and
its officials and not of the State. In this connection, it is
also pointed out by the counsel for the Corporation that
furnishing information about the factum of suspension of
Sri Kuldip Narayan to the High Court on 15.12.2014 in the
forenoon while hearing C.W.J.C. No. 20570 of 2012
(Suresh Prasad Yadav) is part of a design of the State to
frustrate the continuing mandamus issued by the High
Court in the case of Narendra Mishra (C.W.J.C. No. 8152 of
2013) against the builders of unauthorized construction
violating the building bye-laws. According to learned
counsel for the Corporation the State functionaries were in
connivance with the builders and trying to shield them.
14. Learned counsel for the Corporation finally
submitted that there was no difficulty in appearance of Sri
Kuldip Narayan before the High Court on 19.12.2014 in
C.W.J.C. No. 20570 of 2012 (Suresh Prasad Yadav) as Sri
Kapil Ashok has already filed an affidavit on 16.12.2013
before the High Court in C.W.J.C. No. 8152 of 2013
(Narendra Mishra) which is on record that he has not taken
over charge of the post of Municipal Commissioner, Patna.
In this connection, it is further pointed out that in any
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event, whoever was the Commissi oner on 19.12.2014
would have been present before the High Court on that
day in the case of Suresh Prasad Yadav (C.W.J.C. No.
20570 of 2012).
15. Learned counsel for the 41 Ward
Councillors of the Corporation submitted that there are two
aspects concerning transfer of a Public servant. First
relates to his private rights as an individual pertaining to
his service career. The other aspect is concerned with the
prejudice caused to the public interest irrespective of
private interest. In this connection, it is submitted that
there was strong unimpeachable evidence to substantiate
definite public interest at the time when order dated
08.07.2013 was passed by the High Court in the matter.
The materials on record provide vitiating element to
protect the transfer of Sri Kuldip Narayan from the
Corporation. It is submitted that the Division Bench passed
an injunction order protecting transfer of Sri Kuldip
Narayan for the purpose of continuity and answerability
which is apparent from the subsequent orders dated
03.07.2014, 03.11.2014, 13.11.2014 and 27.11.2014
passed in the case of Narendra Mishra (C.W.J.C. No. 8152
of 2013). It is further submitted that since the functioning
of the Government and the process of the Government is
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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subject to public scrutiny so as to p romote public
accountability the restraint order on the transfer was
passed by the High Court. It is submitted that the order
dated 08.07.2013 has been affirmed by the Supreme Court
on 25.11.2013 but the Supreme Court was pleased to
permit the State Government to move an application for
variation of the order dated 08.07.2013 and if the same is
not allowed, the State may file Special Leave Petition.
16. It is further submitted that Sri Kuldip
Narayan, Municipal Commissioner has been directed by the
High Court to complete the disposal of the Vigilance Cases
till 15.01.2015 and in the aforesaid background, though
State has express power to place an I.A.S. Officer under
suspension, the question, which is being raised for
consideration, is whether the Municipal Commissioner an
I.A.S. could be suspended on 12.12.2014 in wake of the
judicial order protecting his transfer/ removal from the
Corporation for the purpose of continuity and answerability
in the matter of enforcing the building bye -laws. The
power to suspend an employee is within the domain of the
employer but in the facts and circumstances of the case
the general principle of law of suspension will not be
applicable as in the present case removal of the officer
from the Corporation was subject to approval of the High
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Court and without obtaining leave of the High Court he
could not have been suspended as suspension also
tantamounts to his removal from the Corporation.
17. Learned counsel next submitted that it is
settled law that service dispute cannot be decided in Public
Interest Litigation, except for the purpose of writ of quo
warranto. Reliance in this connection is placed on the
judgment of the Supreme Court in the case of Hari Bansh
Lal Vs. Sahodar Prasad Mahto and others (2010) 9
Supreme Court Cases 655 but it is submitted that the
principle of law laid down in the case of Hari Bansh Lal
(supra) is not attracted to the case in hand as the present
writ petition is not connected with service dispute for which
only the aggrieved party has the locus to i nitiate legal
action. The resolution of the Government dated
12.12.2014 placing Sri Kuldip Narayan under suspension is
an incidental matter and the same is amenable to judicial
review in the present case itself. By placing Sri Kuldip
Narayan under suspensi on, the State authorities have
proceeded to nullify the operation of a judicial order, merit
whereof can always be examined in the present Public
Interest Litigation as thereby the State authorities have
nullified the direction of the High Court not to
remove/transfer Sri Narayan from the post of Municipal
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Commissioner, Patna as the High Court entrusted him with
the task of effectively implementing the building bye-laws.
18. Learned counsel further submitted that in
the case in hand suspension order could not have been
insulated from judicial review even if there was no service
dispute as the same has been passed to defeat the order
of the High Court and the Supreme Court.
19. Learned Principal Additional Advocate
General defended the reference of the writ petitions and
the Interlocutory Application(s) to the Full Bench and
submitted that the reference is made in the light of the
Patna High Court Rules Chapter II Rule 11 read with
Chapter V Rule 1. In this connection, he pointed out that
once the information about the resolution of the
Government suspending Sri Kuldip Narayan was given to
the Division Bench in the case of Suresh Prasad Yadav
(C.W.J.C. No. 20570 of 2012) on 15.12.2014 in the
forenoon and the Bench observed that validity of the
suspension order cannot be looked into in Public Interest
Litigation as also made arrangement for the Executive
Head of the Corporation in the interregnum, permitting Sri
Kapil Ashok to appear, file affidavit in the matter on
19.12.2014 the Coordinate Bench on the same d ay in the
afternoon while dealing with another Public Interest
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Litigation ought not to have passed interim order staying
resolution suspending Sri Narayan, which is in teeth of the
observation made by the Division Bench in the forenoon.
In case, the Coordinate Division Bench in the afternoon did
not agree with the view taken by the earlier Division Bench
in the forenoon on the same day it ought to have referred
the matter to Hon‟ble the Chief Justice for constituting a
Larger Bench but in no case should hav e passed interim
order staying the resolution suspending Sri Narayan and
continued the same on 16.12.2014 until disposal of I.A.
No. 9327 of 2014 filed by Sri Narayan on which orders
were reserved on the same day. According to Principal
Additional Advocate General, the only course open to the
subsequent Division Bench was to fall in line with the
observations made by the earlier Division Bench or to refer
the matter to a Larger Bench. In no case, the Coordinate
Bench should have granted ad interim stay of t he
resolution suspending Sri Narayan. It is further submitted
that as the two different Division Benches made/ passed
contrary observations/ directions the State had no option
but to request the earlier Division Bench on 17.12.2014 to
make a reference to the Chief Justice for resolving the
conflict between the two orders of the different Division
Bench and Hon‟ble the Chief Justice exercising the power
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
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under the Patna High Court Rules referred to above rightly
referred not only the two writ petitions but al so the
connected matters to the Full Bench. In this connection, he
relied on the judgment of the Supreme Court in the case of
State of Rajasthan Vs. Prakash Chand and others
(1998) 1 Supreme Court Cases 1 Paragraphs 9, 10,
17, 20, 21, 22, 59(6), Asstt. Collector of Estate Duty,
Madras Vs. V. Devaki Ammal (Smt.), Madras 1995
Supp (2) Supreme Court Cases 39 Paragraph 3, K.S.
Panduranga Vs. State of Karnataka (2013) 3
Supreme Court Cases 721 Paragraphs 21, 22, Ashok
Kumar Pandey Vs. State of W.B. (2004) 3 Supr eme
Court Cases 349 Paragraph 16, Hari Bansh Lal Vs.
Sahodar Prasad Mahto and others (2010) 9 Supreme
Court Cases 655 Paragraphs 11 to 15 and
Ayaaubkhan Noorkhan Pathan Vs. State of
Maharashtra and others 2012 AIR SCW 6177
Paragraph 13.
20. Learned Principal Additional Advocate
General next referred to the different orders passed in the
case of Suresh Prasad Yadav i.e. order nos. 13, 16, 22, 23
dated 21.08.2013, 04.10.2013, 19.12.2013, 08.01.2014
and submitted that perusal of the aforesaid orders would
indicate that the earlier Division Bench was not satisfied
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with the conduct of Sri Kuldip Narayan, Municipal
Commissioner in execution of the Project concerning Solid
Waste Management Scheme and had made observations
against his conduct. The Government having considered
the conduct of Sri Narayan, Municipal Commissioner in
execution of the Solid Waste Management Project as also
other matters, namely, encroachment and illegal
construction within the municipal limits of Patna as also his
failure to spend the amount allotted to the Corporation
during financial year 2012 -13, 2013-14 restraining
development and hygiene to suffer within the municipal
limits of Patna, being not satisfied with the cause shown by
Sri Kuldip Narayan resolved to place him under suspension
vide resolution dated 12.12.2014 in contemplation of the
departmental enquiry proceedings and thereafter sought
permission from the High Court on 15.12.2014 to post
another officer as Municipal Commissioner, Patna after
modifying the order dated 08.07.2013 by filing I.A. No.
9357, 9359 both of 2014 and submission made on behalf
of the petitioners, Corporation and Sri Kuldip Narayan that
the suspension of Sri Narayan, Municipal Commissioner is
without seeking permission of the High Court is wholly
misconceived. In this connection, he also pointed out that
the restraint on the Government was not to transfer Sri
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Narayan without seeking permission from the Court. For
the present, he has been placed under suspension and
applications have been filed seeking permission of the High
Court to post another officer in his place, as such, the
Government has not violated the orders of the High Court.
Learned Principal Additional Advocate General also
submitted that Sri Narayan being an I.A.S. Officer of Bihar
Cadre, notwithstanding his posting as Municipal
Commissioner, remained under over all control of the State
Government being Cadre Controlling Authority, as such, by
virtue of powers contained in sub-section (7) of Section 36
of the Act, the Government has jurisdiction to place him
under suspension even without withdrawing his services
from the Corporation.
21(i). Having noted the submission made by
the Principal Additional Advocate General, it is meet and
proper to deal with the case law relied upon by him. In the
case of State of Rajasthan Vs. Prakash Chand (supra)
Supreme Court dealt with the judicial propriety, validity
and justification for making insinuations against the Chief
Justice of the High Court, casting aspersions on the
learned Judges constituting the Division Bench and making
comments, allegations against some of the former Chief
Justices of that Court including the then Chief Justice of
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India Sri J.S. Verma, behind their back, that too on half
baked facts and to insinuate them that they had illegally
drawn daily allowances at the full rate of Rs. 250/- per
day, to which they were not entitled and thereby
committed criminal misappropriation of public funds in
connection with disposed of writ petition while dealing with
unconnected criminal revision the Supreme Court framed
questions in Paragraph 6 of its judgment and answered in
Paragraphs 22, 23 in view of the facts noted in Paragraph
25 of the judgment that Judges were not free to choose
their jurisdiction or assume jurisdiction in a case pending
in the High Court unless the case is allotted to him or them
by the Chief Justice. Strict compliance of this procedure is
essential for maintaining judicial discipline and proper
functioning of the Court. If every Judge of a High Court
starts picking and choosing cases for disposal by him, the
discipline in the High Court would be casualty and
administration of justice would suffer. No legal system can
permit machinery of the Court to collapse. Paragraph 25 of
the judgment is quoted hereinbelow for ready reference :
―25. As earlier noticed, on 11-9-
1997 a separate board was prepared for
Shethna, J. under directions of the Chief Justice
in view of the order made by Shethna, J. on 8-
9-1997 and part -heard criminal revision
petitions and writ petitions were placed before
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his Lordship. Since Writ Petition No. 2949 of
1996 had not been put up along with the other
part-heard cases, Shethna, J., as it appears
from the impugned order, sent for Mr Madani
(the dealing officer from the Registry) to
explain as to why that writ petition had not
been placed before him. Mr Madani informed
him, as is noticed in the impugned order, that
since the writ petition had already been
disposed of it was not listed before him. The
learned Judge directed Mr Madani to produce
the original record of that writ petition which
was produced before him on 12 -9-1997, on
which date the learned Judge directed that the
papers of (SB Civil WP No. 2949 of 1996) "be
kept with this case" (criminal revision petition)
even though there was no connection or
relevance between the two cases. In our
considered opinion Shethna, J. did not have
any authority, statutory or otherwise — nor
was it necessary — to call for the record of the
above writ petition: firstly because it stood
already disposed of by a Division Bench and
secondly because it was totally unrelated to
and unconnected with the criminal revision
petition he was to hear. Therefore, it appears
that the record was sent for not for mere
perusal but for some other purpose, not strictly
judicial. This becomes quite obvious from the
fact that while stating "brief reasons for not
placing Writ Petition No. 2949 of 1996" before
him, Shethna, J. observed:
"If the writ petition had really
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become infructuous then the same statement
could have been made before this Cour t when
this Court treated the matter as part heard and
this Court would have also passed the same
order provided it had really become
infructuous. The most interesting part of it is
that the matter was disposed of by Division
Bench without the second set and only on one
set the Division Bench passed the order."
The aforesaid observations cast
uncalled for aspersions not only against the
learned counsel for the writ petitioner who had
made the statement before the Division Bench
but also against the learned Judges constituting
the Division Bench. To say the least it was
improper on the part of the learned Judge to
have cast aspersions on the conduct of the
counsel and the Bench in relation to a disposed
of matter in a wholly unconnected judicial
proceedings. In doing so he transgressed all
bounds of judicial propriety and discipline. ”
The fact situation, however, in the present
case, is wholly different. In the special facts and different
orders passed in the case of Narendra Mishra (C.W.J.C. No.
8152 of 2013), it may not be appropriate to place reliance
on the judgment in the case of State of Rajasthan Vs.
Prakash Chand (supra) to support the present reference.
(ii) Learned Principal Additional Advocate
General next relied on the judgment of the Supreme Court
in the case of Asstt. Collector of Estate Duty, Madras
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(supra) where the Supreme Court was at a loss to
understand how once one Division Bench of a High Court
held a particular provision of law to be constitutional and
not violative of Article 14, another Division Bench could
hold the same provision of law unconstitutional and
violative of Article 14. Judicial discipline demanded that
one Division Bench of the High Court should ordinarily
follow the judgment of another Division Bench of that High
Court. In extraordinary cases where the latter Division
Bench finds it difficult for stated reasons to follow the
earlier Division Bench judgment the proper course is to
order that the papers be laid before Hon‟ble the Chief
Justice of the High Court for constituting a Larger Bench.
Certainly where one Division Bench has held a statutory
provision to be constitutional it is not open for another
Division Bench to hold otherwise. For the aforesaid
proposition, he also relied on the judgment of the Supreme
Court in the case of K.S. Panduranga (supra).
22. In the instant case aforesaid well settled
proposition of law is perhaps not applicable as the former
Division Bench while passing order dated 15.12.2014 in
the forenoon in the Public Interest Litigation of Suresh
Prasad Yadav had made observation that the suspension
matter cannot be entertained in Public Interest Litigation
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and in that light approved the arrangement asking Sri
Kapil Ashok to head the Corporation in the interregnum.
Latter Division Bench on the same day, in the afternoon,
taking note of the fact that Sri Narayan has been
suspended under resolution dated 12.12.2014 without
seeking leave from the Court which amounted to defeating
the entrustment made to Sri Narayan by the High Court
under orders dated 02, 08.07.2013 to effectively
implement the building bye-laws within the municipal limit
of Patna granted interim stay of the resolution suspending
him and continued the stay until disposal of the
Interlocutory Application with a view to restore the
entrustment made to Sri Kuldip Narayan to enforce the
building bye-laws under order passed by the High Court,
Supreme Court over the arbitrary action on the part of the
Executives of the State not to enforce the same leading to
mushroom growth in the number of high rise apartments
violating the building bye-laws.
23. Learned Principal Additional Advocate
General next relied on the judgment of the Supreme Court
in the case of Ashok Kumar Pandey (supra) and
submitted that Supreme Court held long ago that in
service matters Public Interest Litigations should not be
entertained. The inflow of so called Public Interest
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Litigations involving service matter continue unabated in
Court and strangely are entertained. The least the High
Court could do is to throw them out on the basis of the
said decision. For the aforesaid proposition, learned
counsel also relied on the judgment of the Supreme Court
in the case of Hari Bansh Lal (supra) and Ayaaubkhan
Noorkhan Pathan (supra). Reliance placed by Principal
Additional Advocate General on the aforesaid three
decisions of the Supreme Court to buttress the submission
that by entertaining the Interlocutory Application filed by
Sri Narayan High Court has entertained Public Interest
Litigation in service matter appears to be wholly
misconceived in view of the fact that suspension of Sri
Narayan has been effected by the Government under
resolution dated 12.12.2014 with a view to defeat the
entrustment made to him by the High Court in larger
public interest to implement the building bye-laws and to
stop raising of the multi-storey apartments contrary to the
provisions of the building bye-laws on roads, lanes, which
are of less than 20 ft. width. The Division Bench in the
case of Narendra Mishra (C.W.J.C. No. 8152 of 2013) in
the afternoon on 15.12.2014 granted interim stay of
suspension of Sri Narayan to uphold the entrustment made
to him under judicial orders passed by the High Court,
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Supreme Court dated 02, 08.07.2013, 25.11.2013 referred
to above, as such, the contention that by entertaining the
suspension matter of Sri Narayan High Court is
entertaining Public Interest Litigation filed on his behalf, is
wholly misconceived as by entertaining the Interlocutory
Application filed by Sri Narayan High Court is only
upholding its earlier orders passed by it on 02, 08.07.2013
duly approved by the Supreme Court under order dated
25.11.2013. Heaven would not have fallen if the
Government had sought permission from the High Court
before proceeding to suspend Sri Narayan.
24. Before proceeding to consider the rival
submission, it is necessary to notice the clarification given
by the counsel for the petitioners, Corporation and its
Commissioner in response to the submission of the counsel
for the State. Learned counsel for the petitioner in the case
of Narendra Mishra (C.W.J.C. No. 8152 of 2013) as also
other petitioners including the counsel for the Corporation
and its Commissioner submitted that copy of the petition
filed by the State on 15.12.2014 bearing I.A. Nos. 9357,
9359 both of 2014 seeking permission of the High Court to
post another officer as Municipal Commissioner of the
Corporation was not served on them and they came to
learn about the two petitions only during submission made
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by the Principal Additional Advocate General.
25. Counsel for the Corporation and its
Commissioner further clarified with reference to the
different orders of the High Court passed in the case of
Suresh Prasad Yadav (C.W.J.C. No. 20570 of 2012)
bearing order nos. 13, 16, 22, 23 dated 21.08.2013,
04.10.2013, 19.12.2013, 08.01.2014 that the Municipal
Commissioner cannot be held responsible for the delay and
the lackadaisical attitude of the Government in executing
the Solid Waste Management Project, as from perusal of
the order dated 25.09.2014 passed in the said case itself,
it will appear that it was the Chief Secretary and the other
functionaries of the State who were responsible for the
delay and the grounds taken to place the Municipal
Commissioner under suspension is wholly misconceived
and indicative of the fac t that Sri Kuldip Narayan,
Municipal Commissioner has been suspended with a view
to defeat the public interest as he was executing the
building bye-laws to the detriment of the builders‟ lobby
affecting their illegal income.
26. Having considered the rival submissions in
the background of the facts of the writ petitions and the
Interlocutory Applications, it is quite evident that the High
Court under order dated 02.07.2013, passed in the case of
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Narendra Mishra (C.W.J.C. No. 8152 of 2013), noticed the
mushroom growth in the construction of multi -storey
apartment(s) in the town of Patna violating the building
bye-laws and directed the Municipal Commissioner to take
action against 449 apartments already identified with
further direction to the Municipal Commissioner to finalize
the case of 771 persons to whom notice has already been
issued seeking details of the constructions raised by them
to find out if they had violated the building bye-laws, if
yes, to take action against them as well. For ensuring
effective implementation of the building bye -laws and
compliance of the order dated 02.07.2013 the High Court
observed under order dated 08.07.2013 in the same case
that frequent transfer of Municipal Commissioner is
causing hindrance in enforcement of building bye-laws and
placing reliance on the observations made by the High
Court under order dated 13.01.2000, passed in the case of
Arun Kumar Mukherjee (supra), directed that the
present Municipal Commissioner Sri Kuldip Narayan shall
not be transferred without its permission for the purpose of
continuity and answerability in the matter of enforcement
of the building bye-laws. Aforesaid order dated 08.07.2013
was assailed by the State Government before the Supreme
Court by filing Special Leave to Appeal, which was
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disposed of under order dated 25.11.2013 refusing to
interfere with the order dated 08.07.2013 observing that
as the State has not yet applied for permission before the
High Court to transfer the Municipal Commissioner with
further observation that in case, the State applies before
the High Court for permission and the same is rejected, it
will be open for the State to move the Supreme Court
under Article 136 of the Constitution. In the light of the
aforesaid judicial orders entrustment made to Sri Narayan
for effective implementation of the building bye-laws in the
case of Narendra Mishra (C.W.J.C. No. 8152 of 2013)
continued within the municipal limits of Patna and the said
fact would appear from perusal of the subsequent orders
passed in the case of Nare ndra Mishra i.e. dated
03.07.2014, 03.11.2014, 13.11.2014 and 27.11.2014.
27. Sri Narayan was suspended on Friday
12.12.2014 and the said fact was informed to the Division
Bench which dealt with Narendra Mishra case in the
afternoon on the same day wherea fter the Bench directed
the State counsel to seek instruction in the matter with
further direction that the case of Narendra Mishra
(C.W.J.C. No. 8152 of 2013) be listed before the Bench in
the afternoon of Monday i.e. 15.12.2014 and in the case of
Narendra Mishra passed interim order dated 15.12.2014 in
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the afternoon staying resolution dated 12.12.2014 placing
Sri Narayan under suspension as the Bench was of the
view that by placing Sri Narayan under suspension without
seeking leave from the High Court the Government has
prevented Sri Nayayan from effectively implementing the
building bye-laws within the municipal limits of Patna, a
job entrusted to him by the High Court under judicial order
dated 08.07.2013 without seeking leave of the High Court
as was directed under order dated 08.07.2013 by the High
Court duly approved by the Supreme Court under order
dated 25.11.2013.
28. During suspension relationship of master
and servant continues between the employer and the
employee but the employee is forbidden to perform his
official duties. In the instant case, Sri Narayan has been
placed under suspension with a view to restrain him from
implementing the building bye -laws and thereby the
Government having placed Sri Narayan under suspension
without seeking leave from the High Court has violated the
orders of not only the High Court but also of the Supreme
Court whereunder the order of the High Court was
approved. In this connection, reference may be made to
the judgment of the Supreme Court in the case of Union
of India and Anr. Vs. Ashok Kumar Aggarwal
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2013(14) SCALE (Civil Appeal No. 9454 of 2013
disposed of under order dated 22.11.2013 ).
29. Now, I proceed to consider the validity of
the reference order dated 17.12.2014. According to
learned counsel for the State there is conflict in the two
orders dated 15.12.2014 passed by two different Benches
of the High Court. One in the forenoon and another in the
afternoon. According to counsel for the State the Bench
passing the order in the forenoon observed in the case of
Suresh Prasad Yadav (C.W.J.C. No. 20570 of 2012) that
the validity of the suspension order of Sri Narayan cannot
be assailed in a Public Interest Litigation and then went on
to approve the arrangement made for the interregnum
permitting Sri Kapil Ashok to affirm affidavit on behalf of
the Corporation and appear before it on 19.12.2014, in the
afternoon on the same day another Coordinate Bench in
the case of Narendra Mishra (C.W.J.C. No. 8152 of 2013)
proceeded to grant interim stay of resolution placing Sri
Narayan under suspension and to resolve the conflict
between the two orders of the two different Coordinate
Benches State had no option but to request the former
Division Bench to make a reference of both the writ
petitions and the connected Interlocutory Applications to a
Full Bench. Aforesaid submission is wholly misconceived in
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view of the fact that the Bench dealing with the case of
Suresh Prasad Yadav (C.W.J.C. No. 20570 of 2012) in the
forenoon of 15.12.2014 was not informed that Sri Narayan
was entrusted with the task of effective implementation of
the building bye-laws within the municipal limits of Patna
by the High Court under orders dated 02, 08.07.2013 and
that his transfer/ removal from the Corporation is to be
made after obtaining permission from the High Court and
that suspension tantamounts to removing/ preventing the
officer from discharging the task entrusted to him by the
High Court. Had the aforesaid facts been informed to the
Bench on 15.12.2014 in the forenoon in the case of Suresh
Prasad Yadav (C.W.J.C. No. 20570 of 2012) there would
not have been any occasion for the Bench to have
observed in the said case that the suspension of an officer
cannot be assailed in Public Interest Litigation. Reference
of Narendra Mishra case (C.W.J.C. No. 8152 of 2013) and
the different Interlocutory Applications filed in the said
case including I.A No. 9327 of 2014 filed by Sri Narayan to
the Full Bench is contrary to the provisions of Rules 10,
10-A of the Patna High Court Rules which put an express
bar on the powers of Hon‟ble the Chief Justice to do
anything with regard to the pending matters before a
Bench. Reference in this connection, may be made to the
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judgment of the High Court in the case of An Advocate
Vs. The Registrar, Patna High Court (supra), Supreme
Court in the case of High Court of Judicature at Patna
Vs. Ramawatar Singh (supra).
30. Writ petition of Narendra Mishra (C.W.J.C.
No. 8152 of 2013) being pending before the Division Bench
and the Interlocutory Application filed by Sri Narayan
having been heard and final orders reserved ought not to
have been referred to the Full Bench. In case, State was
aggrieved by the interim order dated 15.12.2014 passed in
the afternoon on the Interlocutory Application filed by Sri
Narayan in the case of N arendra Mishra (C.W.J.C. No.
8152 of 2013) and extended under order dated
16.12.2014 until disposal of the said Interlocutory
Application, it would have been well advised to move the
Supreme Court against the two interim orders and not to
request another Division Bench dealing with the case of
Suresh Prasad Yadav (C.W.J.C. No. 20570 of 2012) to
refer the matter to a Larger Bench on the ground that
another Coordinate Bench in the case of Narendra Mishra
(C.W.J.C. No. 8152 of 2013) has entertained the
Interlocutory Application filed by Sri Narayan granting
interim stay of resolution placing him under suspension
under order dated 15.12.2014 passed in the afternoon,
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which is in teeth of the observation made in the case of
Suresh Prasad Yadav in the forenoon of 15.12.2014 and to
arrest the conflict, it is necessary to refer the case of
Suresh Prasad Yadav (C.W.J.C. No. 20570 of 2012),
Narendra Mishra (C.W.J.C. No. 8152 of 2013),
Interlocutory Applications filed in both the writ cases
including I.A. No. 9327 of 2014 filed by Sri Narayan to the
Full Bench. In this connection, it may be pointed out that
the Full Bench is constituted to settle a point of law and
not to set aside the interim order as the same would
amount to sitting in appeal over the interim order passed
by the Division Bench, which is not permissible in the eye
of law. The overriding power of Hon‟ble the Chief Justice
contained in Rule 11 of the Patna High Court Rules to
direct any application, petition, suit, appeal or reference to
be heard by a Full Bench is with respect to those matters
which have not yet been assigned to any Judge or Bench.
Hon‟ble the Chief Justice being the first amongst the
equals has administrative power to fix the roster and to
change the same from time to time. Having assigned any
case or application to a Judge or a Bench the same has to
be considered in the same roster and can be referred to
the Full Bench or any other Bench or Judge dealing with
the said roster, the case or the application cannot be taken
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out from the roster and assigned to another Bench or
Judge without the consent of the Judge or Bench dealing
with the roster. In this connection, I may also usefully
refer to the judgment of the Supreme Court in the case of
Binoy Bhushan Sahay Vs. State of Bihar (Criminal
Appeal No. 180 of 1966) decided on 29.09.1966
reported in Supreme Court Judgments Volume 4
September 1966 page 234D to 234E whereunder a
three Judge Bench of the Supreme Court has observed
that it is for the Court hearing a proceeding to arrange its
roster of cases for hearing the cases before it and no one
has a right to claim that it should be disturbed. It is,
therefore, held that while referring the case of Suresh
Prasad Yadav to the Full Bench the case of Narendra
Mishra (C.W.J.C. No. 8152 of 2013) and ot her connected
matters ought not to have been referred to the Full Bench
as there is neither any conflict between the two orders
dated 15.12.2014 passed by two different Division
Benches, one in the forenoon and another in the afternoon
in the case of Suresh Prasad Yadav and Narendra Mishra
respectively nor there is any special circumstance like the
one in the case of State of Rajasthan Vs. Prakash
Chand (supra) which could persuade Hon‟ble the Chief
Justice to refer the matters to the Full Bench.
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31. In view of facts and circumstances stated
above and the findings recorded in Paragraphs 21 to 23
and 26 to 30, I have no option but to refer back the writ
petition of Narendra Mishra (C.W.J.C. No. 8152 of 2013),
Interlocutory Applications filed in the said writ case
including I.A. No. 9327 of 2014 filed by Sri Narayan as also
other connected writ petitions to be dealt with by the
Bench which passed interim order dated 15, 16.12.2014 in
I.A. No. 9327 of 2014 filed by Sri Narayan and reserved its
orders. There being no point of law involved in the writ
petition filed by Suresh Prasad Yadav (C.W.J.C. No. 20570
of 2012) the same be dealt with by the Bench which dealt
with the said writ case earlier in accordance with law.
(V.N. Sinha, J.)
Rajesh/-
(Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH)
Having perused the conflicting opinions
expressed by my two learned senior colleagues, both of
whom I hold in great esteem, I fully and entirely agree
with the views as expressed by Justice I. A. Ansari. I am
unable to persuade myself to accept the views of Justice
V. N. Sinha, who has rightfully not chosen to dissent
with the entire views of Justice I. A. Ansari. While doing
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so, I would like to add a post script.
2. No one has challenged the legal
proposition that in a PIL (public interest litigation and
not personal or private interest litigation), pure service
matter cannot be raised, except to a certain extent in
quo warranto proceedings of PIL in nature. Service
matters are outside the scope of PIL proceedings. Then,
if suspension be a service matter, it cannot be impugned
in a PIL. In quo warranto, no one challenges suspension
but challenges appointment/holding of public office. If
these be the positions, when no final order warranting
quashment of suspension can be passed in a PIL, then,
can any stay application be at all entertained? Answers
must be in the negative. It would have been entirely a
different fact situation, if Sri Kuldip Narayan had merely
brought the order of suspension to the notice of the
Court in the second PIL and pointed out that because of
the suspension order, he is unable to comply with the
earlier orders of the Court and, then, leaving it to the
Court to decide as to what steps are to be taken, which
could, in appropriate case, be in the contempt
jurisdiction but after due notice in this regard. But that
was not to be; rather, he invited, in a PIL, the Court to
adjudicate upon the merits of suspension order including
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mala fide on the part of the Government. This surely is
beyond the ambit of PIL. He was not remediless.
3. I. A. NO. 9094 of 2014, in CWJC No.
8152 of 2013, is a classic example of abuse of PIL
jurisdiction, where challenge to a criminal vigilance case
is made, not by an officer proceeded against, but by his
son. It is entertained with orders of no coercive action.
Taking que from it, Sri Kuldip Narayan challenges his
suspension, which is stayed.
4. Let us not permit the PIL jurisdiction to
be degenerated and abused in this manner.
5. I would say no more on this aspect as
Justice I.A. Ansari has dealt with this in great details.
6. Justice V. N. Sinha has elaborately dealt
with the jurisdiction of the Chief Justice to refer cases to
Full Bench, taking a view that the present case was not
a case, in which he could exercise such jurisdiction. All I
can say is first as the Apex Court has repeatedly held
and the judgments have been noticed by Justice I.A.
Ansari, the Chief Justice is the Master of Rosters. As
pointed out by the Apex Court in the case of Prakash
Chand (supra), wherein it was held that it is a complete
fallacy to assume that a part-heard case can, under no
circumstances, be withdrawn from th e Bench and
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referred to a larger Bench. This position, in my view,
negates the aforesaid views of Justice V. N. Sinha.
7. Again in the case of Assistant Collector
of Estate Duty (supra), the Apex Court clearly held
that subsequent Division Bench must foll ow the
judgment of earlier Division Bench of that High Court. In
extra ordinary cases, where the latter Division Bench
finds difficulty for stated reasons to follow the earlier
Division Bench judgment, the proper course is to order
that papers be placed before the learned Chief Justice of
the High Court for constituting a larger Bench. Without
going into the facts, which have already been narrated
in the two opinions, clearly there was a divergence of
proceedings. In the first PIL it was clearly observed that
the suspension order of Shri Kuldip Narayan could not
be made subject matter of challenge in PIL, whereas, for
some reason, in the second PIL, it was thought that
interference with the said suspension matter in PIL was
possible. If this is not a conflict, I fail to see what is a
conflict. The Apex Court clearly said that in such a
situation, the second Division Bench, instead of
proceeding with the matter, granting stay and then
intending to deal with it on merits, should place the
matter before the Chief Justice for being referred to the
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larger Bench. This is not only a principle of judicial
propriety, but of good judicial administration. If these
two conflicting orders are seen by the public, what will
they say about the Court. They have to follow the Court
orders. They have to understand the same. The
predicament of the State is clear. Divergent views and
divergent approaches in respect of the same matter are
not conducive and this is why there is necessity to refer
the matter to a larger Bench to arrest the divergence
and get the unanimity.
8. The effect of divergent views writ large.
The first Division Bench holds that during suspension,
Shri Kapil Ashok would function; whereas the second
Division Bench stays the suspension of Shri Kuldip
Narayan effectively nullifying thereby the order of the
first Division Bench, giving also chance to Shri Kuldip
Narayan to enjoy stay, may be wrongly, to plead further
that the departmental proceeding, having not
commenced within 45 days, the suspension stands
revoked.
9. Moreover, the Patna High Court Rules, as
in detail discussed and quoted by Justice I.A. Ansari, is
not alone, dealing with the conflicting orders. As pointed
out, they are in three parts. First Chapter II of the Patna
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High Court Rules and, in particular, Rule 11 thereof,
gives an over-riding independent discretionary power to
the Chief Justice to direct any petition to be heard by a
Full Bench. There may be no conflict of orders or
otherwise. This is one independent source. Then Chapter
V, Rule 1 thereof, is in two parts. First- where the
Division Bench itself seeks a reference, it would be upon
the Chief Justice to consent. Second- where there is
difference between the two Division Benches, in which
case consent of the Chief Justice is not required. These
are three independent powers under which a matter
may be referred by the Chief Justice to a Full Bench.
10. Thus, I am unable to persuade myself to
agree with Justice V. N. Sinha that in the present case
no reference could be made to the larger Bench and I
agree with the views taken by Justice I. A. Ansari in
these regards.
11. To conclude all I can say is that the
dignity of the institution is above the predilection of
individuals constituting the Court and it is for this reason
that the principle of etiquettes has been evolved, one of
them the Chief Justice, being the Master of Rosters, has
over-riding rights in constituting or referring matters to
larger Bench because ultimately it would be the
Patna High Court CWJC No.8152 of 2013 dt.30-01-2015
135/135
discretion of the Court as to how one would proceed
with the matter, which is relevant. I as well agree with
the conclusions of Justice I.A. Ansari in all respect.
(Navaniti Prasad Singh, J.)
MPS
U √
AFR
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