Calcutta High Court
Sk. Golap And Others vs Bhuban Chandra Panda And Others on 12 November, 1990
Equivalent citations: AIR1991CAL295, 95CWN100, AIR 1991 CALCUTTA 295, (1990) CAL WN 100, (1991) 95 CAL WN 100, (1991) 1 CALLJ 1, (1991) 1 CAL HN 1, (1992) 1 CIVLJ 650, (1991) 2 CURCC 449
Author: Ruma Pal
Bench: Ruma Pal
ORDER P.D. Desai, C.J.
1. The appeal is taken up for hearing by treating it as included in the day's cause list.
2. The respondents Nos. 1 to 4(a) are the original Writ Petitioners. The writ Petition, being Civil Order No, 10849(W) of 1987, was instituted by them challenging the proceedings under the West Bengal Land Reforms Act, 1955 (hereinafter referred to as "the said Act"), which culminated into an order recording the names of the appellants as Bargadars and the consequential issue of "Barga Certificates" in their favour in respect of the land owned by the Writ Petitioners. The writ petition was heard and allowed by the learned single Judge who, by his judgment and order dt. Dec. 12, 1989, set aside the impugned order recording the names of the appellants as Bargadars and also quashed the "Barga Certificates"; if any, issued pursuant to such order. It was clarified, however, that the respondent authorities were not thereby prevented from recording the names of Bargadars, if any, "on the basis of proper materials and in accordance with law" within six months from the date of the communication of the said direction.
3. Be it stated that the appellants, although cited as private-respondents, were not appearing when the hearing of the writ petition took place. It is their case that no notice of the proceeding was served upon some of them and that under those circumstances the case was decided ex parte against them. In the course of the judgment rendered by the learn ed single Judge, however, the following observation is found to have been made which does not support the said version:
"It appears that the private respondents, although were intended to be served, but all of them have refused to accept the notice and an affidavit of service has been affirmed on March 7, 1988, and filed in Court."
Be that as it may, an application for review was filed by the appellants and one of the grounds therein raised was that the learned single Judge having appeared, while at the Bar, for the present writ petitioners in a previous proceeding in this Court, being Civil Order No. 13055(W) of 1980, in which the "Operation Barga Scheme" initiated by the State Government and the initiation or apprehended initiation of the proceedings for the recording of the names of Bargadars in respect of the self-same land was under challenge, he should not have heard and decided the present writ petition. Other grounds also appear to have been taken, such as non-service of notice/ copy of the writ petition and the decision being not in accordance with law. The review petition was rejected by the judgment under appeal rendered on Jan. 19, 1990. Hence the present appeal against the said judgment.
4. In the course of the judgment under appeal the learned single Judge held that no case for review was made out because: (a) the writ petition was decided after due service of notice upon the parties and after a contested hearing and if some of the appellants did not choose to accept the notice they cannot be heard to make a grievance against the adverse judgment and seek a review; (b) the writ petition was allowed following an earlier decision rendered by another learned single Judge of this Court and there was thus no error apparent on the face of the record justifying the review and (c) liberty was still reserved for recording the names of the Bargadars, if any, on the basis of proper materials and in accordance with law and, therefore, no prejudice was likely to be occasioned to the appellants even if the review was not granted. The point that the learned single Judge ought not to have heard and decided the case on the ground of his having appeared for the writ petitioners in a previous proceeding in this Court is not dealt with in the judgment. There is some controversy between the parties as to whether the said point was actually raised during the course of the hearing of the review petition, but there is no dispute that at the hearing of an earlier writ petition concerning the recording or attempted recording of Barga in respect of the selfsame land, the learned single Judge had appeared, while at the Bar, on behalf of the present writ petitioners.
5. Mr. Mukul Prakash Banerjee, learned counsel for the appellants, contends that since the learned single Judge had appeared for the writ petitioners in the previous writ proceeding, he should not have heard and decided the present case and that circumstance alone introduces a fatal infirmity in the decision and justifies a review. There is some force in this argument. One of the principles of natural justice universally recognised is nemo debet esse judex in propria causa : no man shall be a Judge in his own cause, or the deciding authority must be impartial and without bias. The principle has regard not so much perhaps to the motive which might be supposed to bias a Judge, as to the susceptibilities of the litigants parties. The underlying object is to clear away everything which might engender suspicion and distrust of the adjudicator and to promote the feeling of confidence in the administration of justice which is so essential to the rule of law. The question to be asked in the context of the applicability of the principle always is whether a particular situation or factor present in the case is likely to produce in the mind of the litigant or the public at large a reasonable apprehension about the fairness of the administration of justice. It hardly matters that the adjudicator acted in good faith. The test is not whether in fact a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to the adjudicator might have operated against him in the final decision.
6. In Manak Lal Advocate v. Dr. Prem Chand Singhvi, a similar question arose although in a different context. There was a dispute between one Pukhraj, hereinafter called "P", and others, on one hand, and Dr. Prem Chand, hereinafter called "PC", and others, regarding a well and the surrounding land. The dispute gave rise to a proceeding under S. 145 of Cr. P.C. Manak Lal, who was a practising Advocate of the High Court of Rajasthan, appeared as Counsel for 'P' in the said proceeding. Shri Changani, a senior member of the Bar, appeared in the said proceeding as senior Counsel at one time to argue the matter on behalf of 'PC'. Certain orders passed by the learned Sub-Divisional Magistrate in the course of the said proceeding were challenged before the learned Sessions Judge. While proceedings were pending in the learned Sessions Judge's Court, it was discovered that a fraudulent stay order purportedly issued from his office was produced by Manak Lal before the learned Sub-Divisional Magistrate. The said stay order was found to have been prepared by a clerk of the learned Sessions Judge's Court and he was depart-mentally punished. An off-shoot, however, was a complaint u/S. 13 of the Legal Practioners' Act, 1879 by PC against Manak Lal alleging that he took an active part in the commission of the fraud and was thus guilty of professional misconduct in the discharge of his professional duties. The learned Chief Justice of Rajasthan High Court to whom the complaint was sent constituted a Tribunal to enquire into the allegation u/S. 10(2) of the Bar Councils Act, 1926. The Tribunal consisted of three members with Shri Chhangani as its Chairman. The Tribunal, after holding an enquiry, unanimously concluded that Manak Lal was guilty of the professional misconduct alleged. The High Court agreed with the finding made by the Tribunal and directed that he should be removed from practice. This order was challenged before the Supreme Court, inter alia, on the ground that the Tribunal was improperly constituted and that all proceedings taken before the Tribunal, its report and the subsequent order passed by the High Court were all invalid. The contention was that Shri Chhangani's nomination as the Chairman of the Tribunal vitiated its proceedings since he was disqualified from acting as such on account of his having once appeared as senior Counsel and having argued the case on behalf of PC in the proceeding u/ S. 145 of Cr. P.C. In dealing with this contention the Apex Court observed as follows (at p. 430):
"There is some force in this argument. It is well settled that every member of a tribunal that is called upon to try issues in judicial or quasi-judicial proceedings must be able to act judicially; and it is of the essence of judicial decisions and judicial administration that judges should be able to act impartially, objectively and without any bias. In such cases the test is not whether in fact a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done.
If it is true that in judicial or quasi-judicial proceedings justice must not only be done but must appear to be done to the litigating public, it is equally true that when a lawyer is charged for professional misconduct and is given the privilege of being tried by a tribunal of the Bar Council, the enquiry before the tribunal must leave no room for a reasonable apprehension in the mind of the lawyer that the tribunal may have been even indirectly influenced by any bias in the mind of any of the members of the tribunal. In the present case, we have no hesitation in assuming that when Shri Chhangani agreed to work as the Chairman of the tribunal he did not remember that he had appeared against the appellant's clients in the criminal proceedings u/ S. 145. We are told that Shri Chhangani is a senior member of the Bar and was once Advocate General of the High Court of Rajasthan. Besides, he had not appeared in the case at all stages but had appeared only once as a senior counsel to argue the matter. It is, therefore, not at all unlikely that Shri Chhangani had no personal contact with the client, Dr. Prem Chand, and may not have been aware of the fact that, in the case from which the present proceedings arose, he had appeared at any stage for Dr. Prem Chand. We are, however, inclined to hold that this fact does not in any way affect the legal argument urged before us by Shri Daphtary. It is not Shri Daphtary's case that Shri Chhangani actually had a bias against the appellant and that the said bias was responsible for the final report made against the appellant. Indeed it is unnecessary for Shri Daphtary to advance such an argument. If Shri Chhangani was disqualified from working as a member of the tribunal by reason of the fact that he had appeared for Dr. Prem Chand ill the criminal proceedings u/ S. 145 in question, then it would not be necessary for Shri Daphtary to prove that any prejudice in fact had been caused or that Shri Chhangani improperly influenced the final decision of the tribunal. Actual proof of prejudice in such cases may make the appellant's case stronger but such proof is not necessary in order that the appellant should effectively raise the argument that the tribunal was not properly constituted.
We would, therefore, hold that Shri Daphtary is right when he contends that the constitution of the tribunal appointed by the Chief Justice of the High Court of Rajasthan suffered from a serious infirmity in that Sri Chhangani, who had appeared for Dr. Prem Chand in the criminal proceedings in question, was appointed a member of the tribunal and in fact acted as its Chairman."
7. The decision in Manak Lal's case is illustrative of the applicability of the principle nemo debet esse judex in propria causa. Against the background of the said ruling and the facts and circumstances of the present case, there is no doubt that the learned single Judge ought not to have heard and decided the instant case. It is farthest from anyone's mind to suggest that as a matter of fact his decision of the case was influenced by his past professional association with the writ petitioners. We have no reluctance in assuming that the learned Judge, when he heard this matter initially, might not have remembered that he had appeared on behalf of the Writ Petitioners in the previous writ proceeding. We have no hesitation in believing also that he had no personal contact with the writ petitioners who were his erst-while clients since the previous writ petition was not decided in the recent past. These considerations do not, however, detract from the validity of the legal objection raised on behalf of the appellants. It is not necessary for the appellants to establish that the learned single Judge actually had a bias and that the said bias was the cause of the adverse verdict. The test to be applied in such cases is not whether in fact a bias has affected the judgment but whether there was a real likelihood of bias. The answer depends not upon what actually was done but upon what might appear to be done. Justice must be rooted in confidence; and confidence is destroyed when right minded people may have reason to go away thinking: "the Judge might have been biased."
8. For the foregoing reasons, the appeal succeeds and is allowed. The judgment under appeal is set aside. The Review Petition is allowed. The main judgment rendered in the Writ Petition is also set aside. The writ petition is directed to be restored to file and to be listed before any Bench other than the Bench presided over by the learned single Judge who dealt with and decided the case. It is clarified that this Court has not gone into the merits of the dispute and that all the questions in controversy are left open to be decided in accordance with law.
9. No separate order is required to be passed on the application for interim relief, which too stands disposed of in light of the foregoing order. Interim order, if any, stands vacated.
10. If an application for a duly authenticated Xerox copy of the judgment is made to the Deputy Registrar (Court), Appellate Side, by the learned Advocates on record for the parties or any of them, such copy shall be delivered to them/him on the payment of requisite charges provided an application is also simultaneously made for a certified copy and an undertaking is given that delivery of the certified copy will be taken on deposit of requisition when available.
11. Appeal allowed.