Jammu & Kashmir High Court
Munshi Ram vs State Of J And K And Ors. on 6 September, 2004
Equivalent citations: AIR2005J&K25, 2004(3)JKJ202, AIR 2005 JAMMU AND KASHMIR 25
JUDGMENT V. K. Jhanji, J.
1. This writ petition was dismissed as withdrawn in terms of order dated May 1, 1997 passed in CMP (IA-II/ 97). However, lately, it was revived and taken on board for disposal on merits and, in terms of order dated 15th December, 2003, notices were issued to all concerned, including the petitioner. Jammu Development Authority, though not figuring in the array of respondents, was also directed to be impleaded as party, respondent No. 1, in the petition, being a necessary party. The circumstances and facts, which led to the reviving of the petition and the subsequent proceedings in the matter, may briefly be stated.
2. Certain complaints were received in the Chief Justice' Secretariat, alleging gross and rampant violation of various statutory laws enacted by the State for planned development of the Jammu city. The complainants lamented inaction and indifference of the authorities saddled with responsibility to ensure compliance with laws regulating building activities and adherence to laws like the Municipal Act, Development Act and Building Operations Control Act etc. Clout at different levels was alleged to have resulted in throwing to winds the established norms and laws otherwise meant for public good. One such complaint dated 26th May, 2003 was addressed to the Acting Chief Justice (one of us - V. K. Jhanji) by a forum named in the complaint as "Judiciary Protection Forum" signed by some Vijay Singh, Secretary of the Forum. It is not borne out from the complaint whether the forum is registered or not. The identity of the complainant is not fully disclosed in the letter. We are conscious that complaints or petitions, which do not identify fully the makers thereof, cannot be acted upon on the judicial side. Nevertheless, the complaint contained certain verifiable facts and allegations directly concerning this Court. Certain reports were also published in local English weekly, Journey Line, in its issue No. 45 released in November, 2003, supported by succinct material on the same subject, with a reflection of unpleasant events, bearing an inkling of diminishing public confidence in this highest temple of justice in the State. The complaint and the newspaper report are on the file.
To ascertain the facts, records of certain case files, including the record of writ petition, OWP No. 25/97, were called for perusal from the Registry through Registrar General of the court. The record of the writ petition as also that of a civil revision was reported to be not traceable in the record room of the court. Registrar General was directed to enquire into the matter and make efforts to, trace out the records. The record keeper produced a chit stating that the record of these case files had been taken by the then Deputy Registrar Judicial in. September, 1999. Ultimately, the records of the writ petition along with the record of civil revision petition No. 150 of 1996 titled 'Harbans Lal v. Pawan Kumar and two others' were deposited in the record room by the then Deputy Registrar Judicial of the court, namely, Shri Kartar Singh, presently Presiding Officer, Motor Accidents Claims Tribunal, Jammu. It may be relevant to mention here that respondent No. 3 in the aforesaid civil revision is Munshi Ram, the same person who is petitioner in the writ petition, OWP No. 25/1997 - a factor assuming importance in view of the facts that have emerged.
3. An explanation was sought from Shri Kartar Singh. In reply dated 17th November, 2003, he stated that he never obtained the record of these files (writ petition and civil revision) from the record room and that the same were handed over to him by Shri Baldev Raj Salgotra, Private Secretary to one of the sitting Judges of this Court (Shri Baldev Raj Salgotra actually happens to be a Senior Stenographer, not Private Secretary). In his explanation dated 25th November, 2003, Shri Baldev Raj Salgotra, Senior Stenographer, inter alia, stated that in the month of September, 2003, one file was given to him by the Hon'ble Judge for handing over the same to Shri Kartar Singh and that he "carried out the orders of his Lordship", the same day.
4. These startling revelations, inter alia, brought to fore that these files were obtained from the record room in an unusual fashion four years back and were then retained by the learned Judge. The above factors gave a prima facie clue that all was not well with the whole affair. The facts thus ascertained could not be simply brushed aside. Discovery of these facts during the course of enquiry warranted a probe on judicial side. Consequently, in exercise of inherent powers vested in the Court, the writ petition was revived. Further facts emerged during the course of re-hearing of the case, constrained the Court to issue show cause notice to the petitioner. It becomes imperative to narrate the relevant facts having bearing on the matter.
5. Vide sale deed dated 20th May, 1989 and registered on 22nd May, 1989, Munshi Ram, writ petitioner in OWP No. 25/96, purchased a piece of land situated at Indra Chowk, Raghunath Pura, Jammu, lying abreast the main road. Photocopy of the sale deed has come on record. Munshi Ram applied to the Jammu Municipality for permission to build a Hotel on the land in question. The Municipality, vide order No. MJ/327/BS/95 dated 11th March, 1995 accorded permission for the construction of the Hotel building, named, "Yatri Hotel" subject to conditions mentioned in the order and prescribed by law in this behalf
6. On 16th September, 1995, Khilafwarzi Officer, Municipality Jammu served notice No. 33/1/KWO/95 under Section 225 of the Municipal Act on Munshi Ram intimating to him that he had started the construction of the Hotel in violation and against the approved plan. He was asked to stop the said construction. On the same day, vide No. 33/2/KWO/95, another notice was issued to him under Section 229 of the Municipal Act requiring him to alter/demolish the said Khilafwarzi (violation), committed in the approved plan, within three days from the date of service of the notice, failing which action would be taken under law. On 18th September, 1995 notice No. 33/3/KWO/95 under Section 226 of the Act was issued to Munshi Ram asking him to stop the said construction within twenty-four hours, failing which action would be taken against him under Section 226 of the Municipal Act. Munshi Ram seems to have persisted in violation of the approved plan and continued with the construction. Finally, on 27th October, 1995, notice No. 33/4/LWO/95 under Section 229(3) of the Act was issued to him by Executive Officer, Jammu Municipality requiring him to demolish the unauthorized construction within seven days failing which the same would be demolished at his risk and cost.
7. Against the aforesaid notice dated 27th October, 1995, Munshi Ram filed an appeal before the Jammu and Kashmir Special Tribunal, Jammu, which was registered as file No. STJ/451/95. The Tribunal admitted the appeal and, while issuing notice, ordered stay of impugned order dated 27th October, 1995. It appears, after obtaining the stay order, Munshi Ram continued with the construction in violation of the approved site plan. Consequently, on 8th June, 1996, the Chief Khilafwarzi Officer, Municipality Jammu issued yet another notice No. 20/1/CKWO/96 to him under Section 225 of the Act intimating to him that he had started digging of basement at Indra Chowk, Jammu and asking him to stop the unauthorized construction. Munshi Ram appears to have refused to acknowledge this notice. On 8th June, 1996 itself, the Chief Khilafwarzi Officer issued another notice No. 20/2/CKWO/96 under Section 229 of the Act to him to the effect that he had started "construction of digging of basement at Indra Chowk, Jammu without proper permission" as required by Section 221 of the Act/Municipal Building Bye laws. He was asked to alter/demolish the said Khilafwarzi within three days from the date of service of the notice failing which action would be taken under law. In the notice, it was further mentioned that 'in case you have to say anything in the matter, you may do within the time specified above". Since Munshi Ram did not abide by the aforesaid notice, on 19th June, 1996, the Executive Officer, Municipality Jammu issued notice No. 20/4/CKWO/96 to him under Section 229(3) of the Act requiring him to demolish the said unauthorized construction within 7 days failing which the same would be demolished at his risk and cost. On the same day, the Secretary, Municipality Jammu filed a challan against Munshi Ram under Section 225 of the Act before the Special Municipal Magistrate, Jammu, for action under law.
8. Munshi Ram filed another appeal before the Tribunal challenging the validity of notice dated 19th June, 1996. This appeal was registered as file No. STJ/120/96 and, vide order dated 27th June, 1996, the Tribunal stayed the operation of the notice in question. The Jammu Municipality on 18th May, 1995 submitted detailed objections, specifying the violations committed by Munshi Ram in the approved site plan. It was pointed out that as against the total area as per sanctioned plan of 9251 square feet, the actual built up area on the spot was 18178.50 square feet, that is to say, that Munshi Ram had raised unauthorized construction over and above the sanctioned plan to the extent of 8927.50 square feet, which obviously was 9251 square feet more than the authorized area of construction. The objections did not find favour with the Tribunal on the ground that violations had not been specified in the notices in question and it consequently allowed both the appeals by a common order dated 11th October, 1996, set-aside the impugned notices, leaving it open for the Municipality to initiate fresh proceedings in consonance with law, if circumstances so warranted.
9. After the earlier notices issued by the Municipality were set-aside by the Tribunal, the Chief Kihlafwarzi Officer, Jammu Municipality on 2nd December, 1996 issued a fresh notice No. 138/2/CKWO/96 under Section 229 of the Act to Munshi Ram, In this notice while detailing out the violations committed by him, he was asked to alter/demolish the same within three days failing which action would be taken under law. He was further informed that in case he had to say anything in the matter, he may do within the time specified. Munshi Ram seemingly did not abide by the notice. Consequently, on 6th December, 1996 Executive Officer, Jammu Municipality issued notice No. 138/4/CKWO/96 under Section 229(3) of the Act to him asking him to demolish the unauthorized construction within seven days failing which the same would be demolished at his risk and cost. Munshi Ram again went to the J&K Special Tribunal, Jammu in appeal against the aforesaid notice dated 6th December, 1996, The Tribunal on 10th December, 1996 passed an order to the following effect:
"The learned counsel for the appellant argued. Admit. Issue notice to the other side and call for the record. Put up on 17.12.1996.
Issue notice in the stay matter also. In the meanwhile, subject to objections from other side, order impugned is stayed till next date of hearing. Parties shall maintain status-quo on spot till next date of hearing."
Though the order was passed at the instance of Munshi Ram, he filed writ petition, OWP No. 25/1997 challenging the said order dated 10th December, 1996 passed by the Tribunal as also the notice of demolition issued by the Jammu Municipality. The writ petition was presented before the Registry on 11th January, 1997 and it came up for consideration before the learned Judge during vacation on 13th January, 1997. The learned Vacation Judge, while issuing eight weeks' notice, ordered calling for the record and stay of both order dated 10th December, 1996 passed by the Tribunal as also the notice dated 6th December, 1996 issued to the petitioner by the Executive Officer. Obviously, stay of the status-quo order, the notice of demolition issued by the Municipality was sought by the petitioner to enable him to go ahead with the unauthorized and illegal construction. Having thus succeeded in his nefarious objective, Munshi Ram withdrew the writ petition on Ist May, 1997. In the appeal matter before the Tribunal, the Executive Officer, Jammu Municipality filed his objection on 11th January, 1997. The objections so filed by the Municipality may be extracted below:
"1. That the appellant had been raising the construction absolutely in deviation of the sanctioned plan. He had to keep set backs of the plot as per sanctioned plan 10 ft and 22 ft set back at rear (Eastern lane) side, 10 ft set back on Northern (Nallah) side and 10 ft. set back on southern (lane) side but no such set back has been kept on the ground and the space earmarked for set backs has totally been covered illegally with construction.
2. Whereas in the approved plan he was not given permission for constructing a basement floor but he has constructed a big basement floor unauthorisedly in shape of hall against the provision of the permitted building permission.
3. Whereas in the approved plan, the ground floor was allowed exclusively for parking but he has converted the ground floor into shopping complex at present comprising sixteen No. shops illegally on the space earmarked in the sanctioned plan for parking;
4. Whereas in the approved plan he was not given permission for constructing balcony but he has raised 2 ft wide balconies in each floor over hanging over the lanes/nallah there by further increasing the area illegally. He has also raised 5 ft wide balcony projection over hanging over the nallah thereby encroaching the nallah/State land at basement floor level unauthorisedly;
5. Whereas in the approved plan he was permitted to construct the Hotel building comprising ground floor and Ist floor with 3078 sft covered area on each floor and 3095 sft covered area at 2nd floor but he has not observed the rear set back and side set backs and has constructed the ground floor, Ist floor and 2nd floor with 5424 sft on each floor which is utterly illegal over the sanctioned plan and is a very serious violation."
In paragraph No. 6 of the objections, the Municipality also gave in tabulation form the details of sanctioned built up area, the actual built up area, the excess built up area and percentage thereof. The tabulated figures are quoted below;
S. No. of floor Actual cover Covered area Excess Remarks
No. ed area at as per Remarks
site sanctioned over th
plan. sanctioned
plan.
1. Basement 2706 sft - 2706 sft 100 % excess over
floor sanctioned plan.
2. Ground floor 5424 sft 3078 sft 2346 sft 76.25% excess over
sanctioned plan.
3. First floor 5424 sft 3078 sft 2346 sft 76.25% excess over
sanctioned plan.
4. 2nd. floor 5424 sft 3095 sft 2329 sft 75.25% excess over
sanctioned plan.
--------- ---------- ---------
Total: 18978 sft 9251 sft 9727 sft
5. Balcony : 935.50 sft - 935.50 sft 100% excess over
projection the sanctioned
over-handing plan.
thelanes/nallah.
In its objections, the Municipality stated that the violations were of a very serious nature, willful and deliberate and, accordingly, sought dismissal of the appeal and orders for demolition of the unauthorized construction.
10. The appeal was finally heard by the Tribunal and disposed on 20th October, 1997. Before the Tribunal, the case set up by Munshi Ram, as reflected in the order, was that he had raised the construction after getting the site plan approved by respsondent vide No. MC/327 dated 11th March, 1995; that no show cause notice prior to the impugned notice was given to him and even the impugned notice was not served upon him; that the respondent had violated the principles of natural justice; that the appellant had not violated the Municipal laws and that in case there was any violation the same be compounded as the court deemed fit. In paragraph No. 2 of the order, the Tribunal noticed the fact that the "appellant has raised the unauthorized construction of basement, without seeking permission and also raised construction of ground floor, Ist floor and 2nd floor against the sanctioned plan. The total area under unauthorized construction comes to 10669.50 sft". In paragraph No. 5 of the order, the Tribunal recorded the stand of the Municipality in the following words;
"That appellant has also converted the ground floor into shopping complex illegally, which was earmarked in the sanctioned plan for parking. The appellant has also raised 2 ft wide balconies in each floor over-hanging the lanes/nallah. That the appellant has also raised 5 ft wide balcony projections hanging over the nallah, thereby encroaching the nallah/state land at basement floor level un-authorisedly. That appellant has raised the unauthorized construction against the sanctioned plan as such the order for demolition of unauthorized construction be passed in order to maintain the sanctity of laws."
Thereafter, the Tribunal has recorded its findings in paragraph 6 of the order, which may be extracted below:
"I have given my earnest consideration to the arguments raised by the learned counsel for the parties and have minutely examined the record of the case available before me. It reveals that the appellant has raised the unauthorised construction against the sanctioned plan covering an area 10662.50 sft. The violation being not of serious nature, the same is compounded @ Rs. 25/- sft for the above area which he has constructed against the sanctioned plan The compounding fee shall be deposited by the appellant with the respondents office under rule 6 of J&K Municipal (unauthorized) construction rules 1977 failing which the appeal of the appellant would be deemed to be dismissed."
It is pathetic and saddening that the Tribunal, presided over by a Judicial Officer of the rank of a District and Sessions Judge should have fallen prey to the greed of a person not bothered about adherence to law even in the least, and, without recording a finding and without application of mind to the ramifications of the huge violation, area-wise much more in magnitude than the area covered by the approved site plan, that too at the busiest centre of the City of Jammu, described the violation just not of a serious nature. The Tribunal though has taken note of the fact that the violations have encroached upon the State land as well, yet he has described it not of a serious nature. The Tribunal has not bothered to take note of the fact that by his so doing, the right of way of general public was going to be seriously affected. Even more criminal is the attitude demonstrated by the concerned officers / officials of the Municipality who have chosen not to challenge the order of the Tribunal and, instead, have rested with acceptance of the compounding fee. On the basis of the record now available with us, we are convinced that the statutory trust reposed with the Municipal authorities has not been duly discharged. We shall refer to the facts that have emerged and constrained us to make the above observation. But, before doing that we deem it appropriate to make a mention of civil revision No. 150/96 the record of which had been obtained from the record room of this Court and retained for four years along with OWP No. 25/96.
11. It appears that Munshi Ram had sold a room and some open space appurtenant thereto out of the land on which the aforesaid Hotel was constructed. Harbans Lal son of Munshi Ram - petitioner in OWP No. 25/97 - filed civil suit No. 182 of 1996 before Ist Additional Munsiff, Jammu, for declaration that the Hotel under construction known as 'Yatri Hotel' situated at Indira Chowk, Jammu, was a Joint Hindu Family property and that sale deed dated 9th August, 1995 registered on 9th October, 1995 executed by Munshi Ram in favour of defendants 1 and 2 therein with respect to a room and open space was null and void. Plaintiff in the suit pleaded that he was in actual physical possession of the property in dispute. The learned Munsiff by interim order dated 19th November, 1996 directed that plaintiff shall not be evicted from the possession of the room and open space in suit property till next date of hearing. It was mentioned in the order that the same shall remain in force till next date, besides being subject to objections of the other side. Matter was ordered to be listed on 26th November, 1996. Against this interim direction, the purchasers of the property in question, namely, defendants 1 and 2 in the suit filed an appeal before the 2nd Additional District Judge, Jammu. The learned District Judge by order dated 23rd November, 1996 suspended the operation of the aforesaid interim order of the Ist Additional Munsiff, Jammu till further orders. Aggrieved by the aforesaid order dated 23rd November, 1996, Plaintiff, Harbans Lal (son of Munshi Ram, the two being inter-locked in litigation with each other) filed civil revision No. 150/1996 before this Court. This civil revision came up for consideration before the learned Judge on 27th November, 1996. The matter was ordered to be listed the following day, i.e., on 28th November, 1996 at joint request of the counsel for parties. On 28th November, 1996, the learned Judge passed the following order:
"Adjourned, at the joint request of L/C for the parties. List tomorrow."
On 29th November, 1996, the following order was passed:
"Adjourned, at the joint request of L/C for the parties. List on 3rd of Dec. 1996."
On 3rd December, 1996 again the following order was passed:
"Adjourned, at the joint request of L/C for the parties. List on 6th of Dec. 1996."
On 6th December, 1996 the following order was passed:
"Adjourned at the request of L/C for the respondent. List on 10th of December, 1996."
On 10th December, 1996, the following order was passed:
"Mr. Wazir, the L/C for the petitioner submits that he does not want to press this petition. The petition is dismissed as not pressed."
A fait accompli not unimaginable. Perusal of the record further reveals that from 27th November, 1996 to 10th December, 1996, the date the revision petition was finally withdrawn, the revision petition was sent down to the Registry for listing only twice, i.e., on 28th November, 1996 and 6th December, 1996. Record does not show or suggest that the case was ordered to be kept on board for all these days.
12. It has also come to fore that when Munshi Ram purchased the land at Indra Chowk, Jammu, vide sale deed dated 20th May, 1989, on which the unauthorized construction of Hotel building was being raised by him and relating to a portion of which land civil revision No. 150/1996 was filed before this Court, it was witnessed by two persons, namely, an Advocate (later elevated to the Bench and presently the sitting Judge of this Court) and one Bishember Nath Sharma. Not only that, the Advocate (the learned Judge of this Court) was also an identifying witness at the time of registration of the sale deed before the Registrar Jammu - factors depicting a long association. In the complaint dated 26th May, 2003, it is disclosed that Shri Mukesh Gandhi son of the learned Judge owned and possessed a Hotel at Patni-top. The said Hotel was purchased from him by Ram Inder Lal son of Munshi Ram. Munshi Ram in reply to the show cause in his additional affidavit has also touched the allegations made in the complaint, but he has not denied factum of sale and purchase of Hotel at Patnitop between the two. One could infer a long standing relationship between the two families, but this Court has not taken the complaint on the judicial side. What shocks the conscience of the Court is that order dated 13th January, 1997 in OWP No. 25/97, staying the status-quo order and the notice of demolition; the day-to-day proceedings in the civil revision No. 150/96 and the final order of its dismissal, quoted above, in which Munshi Ram was involved, were all passed by one and the same learned Judge, having long association with Munshi Ram. The day-to-day proceedings conducted in the civil revision cry hoarse and tell the tale as to how do we conduct ourselves as Judicial Officers in the higher echelons.
13. Law does not debar a Judge from hearing cases filed by or concerning his acquaintances. But it is propriety that demands so; the object being that justice should not only be done but it should seem to have been done. More often than not, the record of a case, speaks of itself whether the process of dispensation of justice in a given case was influenced by any such factor tantamounting to impropriety or not. In the instant case, we have stated the relevant facts and quoted hereinabove the proceedings conducted. We are not going into the question what the learned Judge ought or ought not to do, that being neither within our domain nor proper. We, however, would only wish to remind to ourselves and recapitulate the observations made by the Apex Court in C. Ravichandran Iyer v. Justice A.M. Bhattachartee, (1995) 5 SCC 457:
"Judicial office is essentially a public trust. Society is, therefore, entitled to expect that a Judge must be a man of high integrity, honesty and required to have moral vigour, ethical firmness and impervious to corrupt or venial influences. He is required to keep most exacting standards of propriety in judicial conduct. Any conduct which tends to undermine public confidence in the integrity and impartiality of the court would be deleterious to the efficacy of judicial process. Society, therefore, expects higher standards of conduct and rectitude from a Judge. Unwritten code of conduct is writ large for judicial officers to emulate and imbibe high moral or ethical standards expected of a higher judicial functionary, as wholesome standard of conduct which would generate public confidence, accord dignity to the judicial office and enhance public image, not only of the Judge but the court itself, It is, therefore, a basic requirement that a Judge's official and personal conduct be free from impropriety; the same must be in tune with the highest standard of propriety and probity. The standard of conduct is higher than that expected of a layman and also higher than that expected of an advocate. In fact, even his private life must adhere to high standards of probity and propriety, higher than those deemed acceptable for others. Therefore, the Judge can ill-afford to seek shelter from the fallen standard in the society.
In Krishna Swami v. Union of India, (SCC at pp. 650-51) one of us (K. Ramaswamy, J.) held that the holder of office of the Judge of the Supreme Court or the High Court should, therefore, be above the conduct of ordinary mortals in the society. The standards of judicial behaviour, both on and off the Bench, are normally high. There cannot, however, be any fixed or set principles, but an unwritten code of conduct of well-established traditions is the guidelines for judicial conduct. The conduct that tends to undermine the public confidence in the character, integrity or impartiality of the Judge must be eschewed. It is expected of him to voluntarily set forth wholesome standards of conduct reaffirming fitness to higher responsibilities.
To keep the stream of justice clean and pure, the Judge must be endowed with sterling character, impeccable integrity and upright behaviour. Erosion thereof would undermine the efficacy of the rule of law and the working of the Constitution itself. The Judges of higher echelons, therefore, should not be mere men of clay with all the frailties and foibles, human failings and weak character which may be bound in those in other walks of life. They should be men of fighting faith with touch fiber not susceptible to any pressure, economic, political or of any sort. The actual as well as the apparent independence of judiciary would be transparent only when the office-holders endow those qualities which would operate as impregnable fortress against surreptitious attempts to undermine the independence of the judiciary. In short, the behaviour of the Judge is the bastion for the people to reap the fruits of the democracy, liberty and justice and the antithesis rocks the bottom of the rule of law."
The Supreme Court has not only described exhaustively the standards of conduct a higher Judicial functionary must possess and imbibe, their lordships in the same judgment have further laid down guidelines as to what ought to be done in a situation where complaint relates to the Judge of the High Court. The relevant paragraph of the judgment in C. Ravichandran Iyer v. Justice A.M. Bhattachartee (supra) may be extracted below:
"40.... we are of the considered view that where the complaint relates to the Judge of the High Court, the Chief Justice of that High Court, after verification, and if necessary, after confidential enquiry from his independent source, should satisfy himself about the truth of the imputation made against the Judge and consult the Chief Justice of India, where deemed necessary, by placing all the information with him.."
The complaint and the news reports referred to above bear inkling that public confidence in the administration of justice by this Court, in the manner as described above, is of course at the verge of impairment. We cannot do anything except directing placement of the matter before the Chief Justice, but what about the wrong that has been perpetrated, under the ;lout, throwing rule of law to winds, by Munshi Ram, petitioner in OWP No. 25/96. We would again wish to quote a passage from C. Ravichandran Iyer v. Justice A M. Bhattachartee (supra) hereunder:
"The arch of the Constitution of India pregnant from its preamble, Chapter III (Fundamental Rights) and Chapter IV (Directive Principles) is to establish an egalitarian social order guaranteeing fundamental freedoms and to secure justice - social, economic and political - to every citizen through rule, of law. Existing social inequalities need to be removed and equality in fact is accorded to all people irrespective of caste, creed, sex, religion or region subject to protective discrimination only through rule of law. The Judge cannot retain his earlier passive judicial role when he administers the law under the Constitution to give effect to the constitutional ideals. The extraordinary complexity of modern litigation requires him not to merely to declare the rights to citizens but also to mould the relief warranted under given facts and circumstances and often command the executive and other agencies to enforce and give effect to the order, writ or direction or prohibit them to do unconstitutional acts.
In this ongoing complex of adjudicatory process, the role of the Judge is not merely to interpret the law but also to lay new norms of law and to mould the law to suit the changing social and economic scenario to make the ideals enshrined in the Constitution meaningful and a reality. Therefore, the Judge is required to take judicial notice of the social and economic ramification, consistent with the theory of law. Thereby, the society demands active judicial roles which formerly were considered exceptional but now a routine. The Judge must act independently, if he is to perform the functions as expected of him and he must feel secure that such action of his will not lead to his own downfall. ."
We also wish to quote from the ancient scriptures the causes which give rise to the charge of bias against the judges :
i{kikrkf/kjksiL; dkj.kkfu p iUp oS A jkxyksHkHk;}s"k okfnuk'p jg'Jqfr% AA] "There are five causes which give rise to the charge of partiality (against the Judges). They are (i) Raga (affection in favour of a party); (ii) Lobha (greed); (iii) Bhaya (fear); (iv) Dvesha (ill will against a party and (v) Vadinoscha rahashrutihi (the Judge meeting and hearing a party to a case secretly)." (Sukraniti V-5-14-15)
14. It may be observed here that we have taken judicial notice of the instant matter on the basis of facts established and that have emerged during the enquiry and proceedings conducted. The complaint received in the Chief Justice' Secretariat and the newspaper report referred to above were only instrumental in unearthing broader spectrum of unfortunate events which tend to undermine public confidence in the justice delivery system. It is not a case where the court has treated the complaint and the newspaper report per se as Public Interest Litigation. Nobody, howsoever, high he may be, is above law and nobody, howsoever low he may be in social standing, is below law. Given the method and manner in which the matter, having serious consequences vis--vis both this institution and the public cause involved, has been dealt with, this Court cannot be a passive spectator. This Court has to come out of its passive shroud and act vigorously to bring justice home to the perpetrators of wrong. What we think and do today is sure to serve guidance for our future generations. Insensitivity to matters of such serious nature is bound to end in irreparable, irreversible and serious consequences both for the institution and the social order. It would be apt to reiterate the observations of the Supreme Court in C. Ravichandran Iyer v. Justice A.M. Bhattachartee (supra) quoted above that in this ongoing complex of adjudicatory process, the role of the Judge is not merely to interpret the law but also to lay new norms of law and to mould the law to suit the changing social and economic scenario to make the ideals enshrined in the Constitution meaningful and a reality. Therefore, the Judge is required to take judicial notice of the social and economic ramification, consistent with the theory of law. Thereby, the society demands active judicial roles. We now proceed to state, briefly, the proceedings conducted in this case after its revival.
15. As already observed, on 15th December, 2003, notice was directed to be issued to the parties. On behalf of respondents 2 and 4, namely, Executive Officer and Chief Khilafwarzi Officer, Municipality Jammu, M/s S. S. Nanda and S. K. Raina, Advocates entered their appearance. They were directed to produce title deed of Yatri Hotel and the relevant record maintained by the Municipality relating to its building permission and the record of proceedings initiated against the petitioner. The Commissioner, Municipal Corporation, Jammu, (as it has now been converted into) was also directed to appoint a suitable Engineer to go on spot and report on affidavit the actual measurements of the construction. Notice was also directed to be issued to Vice Chairman, Jammu Development Authority. On 9th February, 2004, the matter came up before the Division Bench comprising the Chief Justice and one of us (V.K. Jhanji). There was no representation on behalf of the petitioner. Mr. Adarsh Sharma, Advocate, entered his appearance on behalf of Vice Chairman, Jammu Development Authority, impleaded as respondent No. 1 pursuant to order dated 15th December, 2004. During the course of hearing attention of the court was drawn to the order passed by the Special Tribunal on 20th October, 1997 whereby unauthorized construction to the extent of 10669.50 square feet had been condoned describing the said construction as not of serious nature. The court observed that no other reason had been assigned for condoning the excess/unauthorized construction. The court further observed that "prima facie we are not able to appreciate the rationale of the order". Accordingly, notice was directed to be issued to the petitioner, Munshi Ram to show cause why the aforesaid order dated 20th October, 1997 passed by the Special Tribunal be not quashed. The Jammu Municipal, Corporation was also directed to file an affidavit stating the circumstances in which the said order of the Special Tribunal was not challenged by it.
16. On 2nd April, 2004, when the case again came up for consideration, Mr. J. P. Singh, Advocate, entered appearance on behalf of the petitioner and he was granted two weeks' time to file objections. Jammu Municipal Corporation was granted time to file affidavit in terms of earlier order dated 9th February, 2004. On 27th April, 2004 Mr. S. K. Raina, counsel for Jammu Municipal Corporation, produced two original record files relating to the building in question. The requisite affidavit was also filed. On perusal of the files, the court passed a detailed order which is extracted below:
"... On going through note 31 in file No. JM-125/97 dated 12.11.1997, we find that on passing of the order by the Jammu and Kashmir Special Tribunal, Jammu on 20.10.1997 whereby it compounded major violation, note was put up before the Executive Officer who directed the spot to be inspected before accepting the compounding fee. It appears that spot was inspected and Executive Officer in his note dated 19.12.1997 remarked 'inspected the spot. Real justice would be done if the offending structure is demolished. Cannot we contest the case in Supreme Court of India'? This note was to be put up before Shri S. S. Nanda, Advocate for the Jammu Municipal Corporation for his legal opinion but it appears that for the reasons best known to the Khilafwarzi Officer, the note was not put to Mr. S. S. Nanda for his legal opinion. Notes 32 and 33 on the file show that Khilafwarzi Clerk instead of sending the file to Shri S. S. Nanda, Advocate, put up note 32 dated 24.1.1998 suggesting the deposit of compounding fee. Khilafwarzi Officer on 24.1.1998 submitted the file to the Executive Officer with the recommendation that '. the compounding fee may please be accepted to fetch revenue in the Municipal chest rather going to appeal'. It appears that Executive Officer thereafter accepted the proposal. There is no explanation as to under what circumstances the legal opinion was not sought as was suggested by Executive Officer on 19.12.1997 and recommendation made to accept the compounding fee. Mr. S. S. Nanda, learned counsel also appearing for the Jammu Municipal Corporation stated at the bar that file was never put up to him for his legal opinion.
Mr. S.K. Raina, learned counsel appearing on behalf of the respondent-Jammu Municipal Corporation has undertaken to give names, particulars and the present posting of Khilafwarzi Clerk, Khilafwarzi Officer, Executive Officer and Administrator who without seeking the legal opinion, as suggested in Note 31, proposed and endorsed for the compounding of the major building violations."
In response to the show cause notice issued to the petitioner pursuant to order dated 9th February, 2004, he filed objections. Meanwhile, he also filed CMP(W) No. 497/2004, inter alia, praying for supply of copies of the complaint. That CMP came up for consideration on 26.4.2004 and counsel for the petitioner did not press the prayer. However, even so, in reply to the show cause notice, one of the preliminary objections taken was that the petitioner was handicapped and disabled in submitting reply to the show cause notice issued by the court because, according to him, the post decisional complaints received by the court did not form part of the record. In light of the preliminary objection raised and in order to give a fair and adequate opportunity to the petitioner, this Court on 26.5.2004, inter alia, ordered as under:
".We are of the view that lest any prejudice is caused to the petitioner in any manner, we direct Registrar General to place on record complaint(s) received in regard to the matter relating to Munshi Ram on or before 1.6.2004. Learned counsel for writ petitioner shall be at liberty to inspect the record in presence of Registrar Judicial or may apply for the copy of the same. In case such a request is made to Registrar Judicial, he shall either permit the petitioner or his counsel to inspect the complaint(s) or supply copy of the same.
Presently the Registrar General has made available two files relating to the inquiry in regard to the case file, which was not found in the Registry and an inquiry was ordered to trace the file and it is only then the said file came to surface. Learned counsel for petitioner shall be at liberty to inspect the two files and also obtain copy of any of the documents contained therein, if he is so advised. Learned counsel for respondents and Mr. B. S. Salathia, who has been asked to assist this Court in this case, shall also be permitted to inspect or take copies of the complaints and documents contained in the two files from the Office of Registrar Judicial. Registrar Judicial shall make available copies free of cost, if so asked for by making an application."
17. On the same day, by a separate order, the court also directed Registrar Judicial to place on record the file of civil revision and also the record of civil suit out of which the civil revision had arisen after obtaining it from the concerned court or the record room, if the suit had been already decided. This was necessitated to ascertain the subject-matter of the suit.
18. On 10th June, 2004, counsel appearing on behalf of the petitioner made a request for permission to inspect the complaint. Accordingly, Registrar Judicial was directed to allow Mr. J. P. Singh to inspect the complaint and, thereafter, it was directed that the same shall be kept in sealed cover to be kept in safe custody of Registrar Judicial. It was further directed that the contents of the complaint shall not be made public either through print or electronic media. On 9th July, 2004, Mr. J, P. Singh, counsel for the petitioner sought permission to file additional affidavit. He was allowed to do so. The additional affidavit was filed.
19. In reply to the show cause, Munshi Ram has stated that the whole of the construction, which was compounded by the Special Tribunal, stood raised and completed much before the initiation of proceedings by the Municipality and filing of the writ petition by him. According to him, on this ground there does not exist any cause muchless a prima facie case for exercising extra-ordinary jurisdiction by this Court; that the writ petition, OWP No. 25/97 stands finally decided with the passing of order dated Ist May, 1997; that the petitioner had a natural right to either continue or abandon his lis and he cannot be compelled to continue his lis against his wishes and, therefore, the writ petition could not be revived by this Court; that the court has no jurisdiction to revive the proceedings which stand concluded with the withdrawal of the writ petition; that the alleged offence of raising construction in violation of the approved plan by the petitioner having been compounded pursuant to the order of the Special Tribunal and the Municipality having accepted the compounding fee more than six years then, the status of the building cannot be made subject matter of challenge before the court. It is stated that unauthorized construction once compounded by the municipal authorities has the status of an authorized construction and no proceedings in respect thereof can be initiated on the premise that the same is illegal and unauthorized; that the decision of the appellate authority on an appeal against the order of demolition of the Municipal authorities is not open to appeal, revision or review and is final in all respects. The Special Tribunal has exercised the jurisdiction of the State Government under the J&K Municipal Act. This statutory power of the State Government, exercised by the Special Tribunal is thus final. It is not amenable to the exercise of writ jurisdiction of the Hon'ble Court in the absence of any aggrieved party before the Court. The jurisdiction vested in the State Government in compounding the cases under the Municipal Act is absolute and final and is not open to judicial review. According to the petitioner, this Court does not have any supervisory jurisdiction over the Tribunal, which is not a court subordinate to the High Court and against its decisions no appeal or revision lies to the High Court. The petitioner further submitted that the extra ordinary jurisdiction of this Court cannot be exercised in respect of judicial or quasi-judicial orders and even if one were to assume that this power may be exercised in respect of the Tribunal, still the power cannot be exercised to look to the legality or otherwise of the order.
The power of judicial review is restricted only to see as to whether or not the process undertaken by the authority does not suffer from any error of law or jurisdiction. It is further submitted that power exercised by the Tribunal in compounding the offence is final and absolute and is not subject to any supervisory, appellate or revisional or other control of any authority, judicial or otherwise and that exercise of power by this Court over the judgment of the Tribunal is impermissible in terms of proviso to Section 229 of the Municipal Act. Relying on Rule 3(1)(c) of the Jammu and Kashmir Municipal (Unauthorised Construction) Rules, 1977, the petitioner submitted that the violations alleged to have been committed by him constitute an offence of minor nature and, therefore, the Tribunal was within its power to order compounding of the same.
20. In an endeavour to rebut the statements made in the complaint, Munshi Ram filed an additional affidavit on 20th July, 2004. In paragraph 8 of the affidavit Munshi Ram has stated that he had not derived any benefit of the interim order passed by the Court in the writ petition; that he did not violate any zonal plan or other laws in force. Paragraph No. 11 of the additional affidavit filed by Munshi Ram gives an interesting reading. It is quoted below:
"I say that I have been deprived of my right to contest the illegal action of the Municipality in issuing notices to me because of the compounding of the case and in that view of the matter, reopening of the matter would work great injustice to me."
We have heard learned counsel for the parties and perused the record.
21. At the outset we may observe that we have not taken the complaint or the newspaper report against the learned Judge on judicial side. We have only narrated the facts and events that, in our opinion, have paved a way for Munshi Ram to commit grave violations of the Municipal laws etc. and emboldened him to mock at the course of justice chosen by him. Therefore, the arguments advanced by learned counsel for the petitioner that taking the matter on judicial side will have a severe reflection on the conduct of the learned Judge is misconceived.
22. It was next argued by learned counsel for the petitioner, Munshi Ram, that once a Judge has taken cognizance of the complaint and the newspaper report on the administrative side, it is not proper for the Judge to hear the case on the judicial side since there would be an element of bias involved. In this regard it would suffice to say that it is true that the Acting Chief Justice one of us (V.K. Jhanji) had taken a decision on the administrative side, but that does not preclude the Judge from taking the writ petition on judicial side. It is not unusual that Judges, particularly the Chief Justice, deal with matters on the administrative side in the discharge of their functions and when those issues are brought before them on the judicial side for hearing they take an objective view thereon after hearing the parties and many a time reverse the decisions taken on the administrative side. Such is the glory and tradition of our judicial system. It cannot even remotely be suggested that there is any bias or impropriety when Judges decide the same issues on the judicial side. So long they are not personally interested in the lis they cannot be said to be judges in their own cause.
23. The learned counsel contended that this Court could not act on an anonymous complaint and treat it as public interest litigation. The argument is noted only to be rejected. We have already mentioned that we have not taken the complaint or the newspaper report on judicial side. These proceedings have been initiated uninfluenced by the complaint, on the basis of the facts that have come to light during enquiries conducted into the loss of the judicial files. As to the argument that the writ petition once decided could not be revived, it hardly needs a mention that the writ petition was not decided on merits. It was dismissed as withdrawn. It is a cardinal rule that interim directions cannot be beyond the pale of final relief prayed for in a lis and have to merge in the final orders. In his writ petition, the petitioner, Munshi Ram, had clearly stated that he had constructed only a portion of the ground floor of the building. In this connection reference may be made to the averments made by the petitioner in paragraph No. 4 of the writ petition, OWP No. 25/97, in which Munshi Ram had stated that he had not completed the construction and that only a portion of the ground floor had been constructed. The averments thus made are extracted below:
"4. That the petitioner has commenced the construction of the hotel building which yet has not been completed, only portion of the ground floor of the building has been completed . Khilafwarzi staff of respondent No. 2 unnecessarily started harassing the petitioner and started creating obstacles in the continuance of the construction of the hotel building."
The above quoted averments supported by an affidavit, clearly demonstrate that as on the date of the filing of the writ petition, the petitioner had not completed the construction. In his reply to the show cause he has stated that as on the date of issuance of notices to him by the Municipality and filing of the writ petition, he had already completed the construction and, accordingly, did not derive any benefit out of the order passed in the writ petition. Ostensibly, the attempt is to wriggle out of the inference that the writ petition was filed only to continue with the illegal construction and to hoodwink the law. He surely had succeeded in his nefarious design. If he had completed the construction as on the date of issue of status-quo order by the Tribunal as well as on the date of filing of the writ petition, there was no occasion for him to have challenged the status-quo order and stating in clear and unambiguous terms in the writ petition that construction of the hotel building had not yet been completed, "only portion of the ground floor of the building has been completed". He cannot resile from the emphatic averments made in the writ petition. That being so, the contention of the petitioner that the construction had been completed as on the date of filing of the writ petition is totally belied. In that view of the matter, he is bound to restore status-quo-ante vis--vis the building as it existed on the date of filing of the writ petition as averred by him in the writ petition. The petitioner cannot be allowed to play tricks with this Court. He had come to the court with unclean hands and is not entitled to any kind of indulgence on that count. It is not a case where the petitioner has only violated the approved site plan, there is intrinsic material, on record that he has grabbed public property with active connivance of concerned municipal authorities. The material brought on record may be referred to.
24. In compliance of order dated 15th December, 2003 of this Court directing the Jammu Development Authority and Jammu Municipal Corporation to depute their respective officers to inspect the spot and report about the violations committed in the approved plan as they exist on the spot, the Jammu Development Authority constituted a committee comprising Superintending Engineer, Divisional Architect and Tehsildar of the Authority. After visiting the spot and taking necessary measurements in co-relation with the sketch (site plan of land) attached with the sale deed dated 20th May, 1989, delineating the land, where under land in question was purchased, and the approved building site plan, the Jammu Development Authority submitted its report signed by six of its top technical/engineering officials, including the aforesaid members of the Committee. They have also submitted the legend of the site plans prepared by them on the basis of such comparison and measurements. The Jammu Municipal Corporation has submitted an identical report. These reports give totally different dimensions about the whole affair and bring to fore the mischief played by Munshi Ram in connivance with the concerned Municipal Officers.
25. The total area of the plot of land purchased by Munshi Ram was only 7071 square feet. He submitted the building plan covering an area of 7721 square feet. The concerned Municipal authorities accepted the building plan and approved the same without ascertaining whether he really owned so much of land. The plot of land measuring 7071 square feet is surrounded by public lanes on two sides, general road on one side and nallah (state owned land) on the other side. Obviously, the land being not stretchable and the approved building plan being 650 square feet over and above the actual area of land purchased, Munshi Ram had obviously included public property to the extent of 650 square feet within his site plan and consequently under his construction. This could not be an oversight. It surely speaks of a criminal connivance between the two, i.e., the concerned officers/officials of the municipality and Munshi Ram. Not only that, the actual measurements of the building taken on spot reveal that the total area of land covered is 7767 square feet, i.e., 46 square feet over and above 650 square feet shown in site plan in excess of his land and grabbed by Munshi Ram. It is further revealed that the total area of construction of ground floor, first floor and the second floor mentioned in the plan submitted by Munshi is 3078 square feet, 3078 square feet and 3095 square feet respectively. The concerned Municipal authorities without calculating the actual area of construction on the basis of the plans so submitted, approved the building plan.
The reports submitted by the Jammu Development Authority and the Municipal Corporation reveal that on calculation of the floor-wise area of construction on the basis of such plans, the actual proposed construction area comes to 3769 square feet in the ground floor and 4197 square feet each in the first and the second floors. The actual construction was thus allowed to exceed the approved construction area by 691 square feet in ground floor, 1119 square feet in first floor and 1102 square feet in the second floor. These simple mathematical mistakes could not, again, be an oversight on the part of the concerned Municipal authorities. Notwithstanding that, Munshi Ram has not rested there, he has actually gone much more beyond that, in as much as the actual construction on the spot cover an area of 6286 square feet in ground floor, 6212 square feet in the first floor and 6167 square feet in the second floor. That apart, the figures as furnished in the two reports further reveal that Munshi Ram constructed the basement, not permitted in the approved plan, measuring 2688 square feet in area; he was required to leave a parking area of 3078 square feet, but he has not kept any parking space -he has instead constructed a shopping complex there; the total commercial area approved by the Municipality was only 6173 square feet, that too, only in first and the second floors, whereas he has raised the commercial area upto an extent of 21,353 square feet, i.e. 15180 square feet in excess, on basement, ground floor and first floor. The building line as per the approved plan is reported to be 54 feet from the centre of the main road, whereas at site it is only 47 feet. Morever, there is no setback left or maintained on other three sides of the building. In the report submitted by the Jammu Development Authority it is further stated as under:
"There is some difference between the site plan attached with registration deed and that attached with approved plans of Jammu Municipality. The hatched area shown in the ground floor plan forms part of the land in the site plan attached with registration deed but in the sheet titled 'Site Plan/Key Plans' attached with approved plans of Municipality, the same has been excluded. In this hatched area, the total approx. constructed area at site works to be 2110 sft. in four floors i.e. ground, Ist, 2nd & 3rd with break up as under:
Floor Area
(a) Ground floor 632,64 Sft
(b) 1st floor 632.64 Sft
(c) 2nd Floor 422.11 Sft
(d) 3rd Floor 422.11 Sft
Total: 2,109.64 Sft
All these floors are being used as commercial at the site."
26. The aforesaid facts and figures, having come to light, suggestive of a hand-in-glove relationship between Munshi Ram and concerned officers and officials of the municipality and spelling out the gross violations committed by Munshi Ram in the building plan, the contention of the learned counsel that this Court cannot revive the writ petition or review the judgment of the Tribunal is untenable. The question that arises is whether, in the given facts and circumstances, this Court should be a mute spectator and allow the wrong to subsist, flourish and perpetrate? And whether this Court has no jurisdiction to have a judicial review of the order passed by the J&K Special Tribunal on an appeal filed against the order of the Executive Officer?
27. Learned counsel for the petitioner, relying on the judgment of this Court in Administrator Municipality Jammu v. K.C. Hotels Pvt. Ltd., 1994 KLJ 665, submitted that the Tribunal is the final arbiter and its orders are not amenable to the writ jurisdiction of this Court. Consequently, the learned counsel contended that, this Court could not act suo moto to up-set the findings of fact of the Tribunal.
28. We have gone through the judgment of this Court in Administrator Municipality Jammu v. K.C. Hotels Put Ltd. (supra). In that case the court had found that the Tribunal had "well considered" the relevant facts and the violations alleged in that case only related to failure to leave set backs. In the present case, the Tribunal has simply said that the violations are not of "serious nature". No foundation has been laid by the Tribunal to come to the aforesaid finding. It is more an expression of subjective satisfaction than a finding based on objective assessment and consideration of the gravity of the violations. Further, law does not envisage recording of a finding, only in respect of whether the violations are of "serious nature". The law requires that the Tribunal should be satisfied that the offence "is of a minor nature and does not amount to serious violation affecting the planned development of the area, zoning regulations or Bye-laws applicable to that area". The Tribunal, in the instant case has only said that "the violation being not of serious nature, the same is compounded.". This is not the kind of satisfaction required by law. The judgment relied upon by learned counsel is therefore distinguishable on facts and not applicable in the present case. The violation in the instant case, as described above, is huge. A construction much more than double the approved area of construction and beyond the area of land owned by the offender cannot be said to be an offence of minor nature, not amounting to serious violation affecting the planned development of the area, Zoning Regulations or Bye-laws applicable to that area.
29. It is true that law provides for compounding offences of minor nature, but terming huge violations as minor and fixing higher rates of compounding fee is not the object of the law. The object of the relevant law is to ensure planned development. Once a building is raised in violation of the law, contrary to the plan, it has the effect of defeating the very object of the enactments. After all, these enactments are not meant to create avenues for the municipality to fill its chest. The beneficiary of planned development envisaged by the relevant laws ultimately is the public, not the municipality. Conversely, if the object of these enactments is allowed to be wantonly defeated in the manner as in the instant case, the ultimate sufferer is the public. Since the concrete buildings as the one raised in the instant case have a long sustainability, the plans visualized by these enactments will remain a far-fetched dream, which may not be realized by even future generations of the soil. The need of the hour, therefore, is strict adherence to these laws. Law cannot be given such flexibility as would frustrate and defeat its very object nor can its language be stretched or strained so as to make it impossible or extremely difficult for the concerned authorities to discharge their functions as envisaged by these enactments. In our view the rules governing the compounding of unauthorized constructions are self explanatory and unambiguous. They do not need any elaboration. If there is anything lacking, it is the will of the concerned authorities, including, if we may say so, the Tribunal.
30. Coming to the powers of this Court, admittedly the J&K Special Tribunal is a creature of a statute, namely, Special Tribunal Act, 1988 (Act No. XIX of 1988). Law is settled that Article 227 of the Constitution of India corresponding to Section 104 of the Constitution of Jammu and Kashmir brings within its fold all the tribunals within the territorial jurisdiction of the High Court and is not confined merely to courts subordinate to it. The High Court's power of superintendence and its nature and extent under Article 227 of the Constitution of India was considered by Allahabad High Court in Jodhey v. State, AIR 1952 Allahabad 788. It would be advantageous to quote hereunder the observations made by the court in this regard:
"A reading of the entire Article 227, Constitution of India in the light of the antecedent law on the subject leads one to the irresistible conclusion that the purpose of the Constitution makers was to make the High Court responsible for the entire administration of justice and to vest in the High Court as unlimited reserve of judicial power which could be brought into place at any time that the High Court considered it necessary to draw upon the same. Springing as it does from the Constitution, which is the parent of all Acts and Statutes in India, the fact that the judgment or order of a Court or trial has been made final by an Act or the fact that the body performing judicial functions is a special tribunal constituted under a Statute cannot be set up as a bar to the exercise of this power by the High Court. The prohibited area is to be found within the four corners of the Constitution itself and nowhere else." Similar view was expressed by a Full Bench of the same High Court in Aidal Singh v. Karan Singh, AIR, 1957 Allahabad 414, The court went further ahead holding that power under Article 227 can be exercised suo motu by the High Court as the custodian of all the justice within the limits of its territorial jurisdiction and for the vindication of its position as such. The relevant observations may usefully be quoted hereunder:
"The powers contemplated by the Constitution makers under Articles 226 and 227 appear to be different. The former is described as the power to issue certain writs orders or directions. The latter is described as the power of superintendence. There are two separate articles in the Constitution next door to each other dealing with these powers. The power under Article 226 is only judicial. The power under Article 227 is both judicial and administrative. The power under Article 226 is exercised on the application of a party and for the enforcement of a legal right.
The power under Article 227 can be exercised suo motu by the Court as the custodian of all the justice within the limits of its territorial jurisdiction and for the vindication of its position as such."
Again, in S. Barrow v. State of U.P., AIR 1958 Allahabad 154, it was held that Article 226 of the Constitution does not confine the powers of the courts to issuing prerogative writs in cases where a party makes an application for the purpose and the words of Article 226 are wide enough to authorize the High Court to quash an order suo motu. In any case, the High Court has power under Article 227 of the Constitution to set aside that order.
31. Similarly, the Punjab High Court in Faqir Chand v. Gori Chand, AIR 1962 Punjab 117 held that that suo motu interference under Article 227 is also legally permissible without any formal application.
32. In State of U. P. v. District Judge, Unnao, AIR 1984 SC 1401, their lordships of the Supreme Court observed that Rigid and inflexible view of jurisdiction under Article 227 leading to injustice was not proper.
33. It is thus settled that High Court's power under Article 227 of the Constitution is unfettered, wide and unlimited. This power can be exercised suo motu and no Act or law can limit it. Proviso to Sub-section (4) of Section 229 of the Municipal Act, that where an offence has been compounded no further action shall be taken against the aggrieved person in respect of the offence so compounded, relied by learned counsel, or the fact that the body performing judicial or quasi-judicial functions is a special tribunal constituted under a statute, cannot be set up as a bar to the exercise of this power by the High Court. The Tribunal is subject to superintendence of this Court and, therefore, its orders are amenable to the jurisdiction of this Court. When this Court in the facts and circumstances of a case is satisfied that there has been gross violation of the municipal laws or bye-laws, it would be rather in tune with advancement of justice that this Court acts in exercise of its powers under Article 227 of the Constitution and issues appropriate directions as the custodian of all the justice within the limits of its territorial jurisdiction and for the vindication of its position as such.
34. In the instant case, firstly, we are satisfied that Munshi Ram as well as the concerned municipal authorities seem to have been hand-in-glove in so far as the site plan has been approved by the Municipality for an area of land more than Munshi Ram purchased and owned; secondly, Munshi Ram has committed serious violations of the approved building plan, described above; thirdly, the Tribunal does not have jurisdiction to compound major violations. Therefore, to restore sanctity of law, in our view, it is a fit case where this Court should, in exercise of its powers under Article 227 of the Constitution, issue appropriate directions.
It may also be mentioned here that during the course of hearing of this matter, we got an impression that the Tribunal has, in fact, been compounding wanton violations. We directed the Municipality to submit statement of cases decided by the Tribunal since the year 1992, which they did. The statements depict a dismaying scenario. From Ist April, 1992 to 31st March, 1993, 116 cases of violations were decided by the Tribunal and all were compounded; from Ist April 1993 to 31st March, 1994,99 cases were decided and all were compounded; from Ist April 1995 to 31st March, 1996,32 cases were decided and all were compounded; from Ist April 1996 to 31st March, 1997, 43 cases were decided and all were compounded; from Ist April 1997 to 31st March, 1998, 84 cases were decided and all were compounded and, similarly, from Ist April 1998 to 31st March, 1999, 48 cases were decided and all were compounded. The fact that the laws enacted by the State for planned development of Jammu city are violated with impunity is also borne out by CMP No. 101/2004 filed on 29th January, 2004 by one Rajinder Singh Jamwal son of Shri Suraj Singh Jamwal resident of Village Check Kirpalpur, Tehsil Akhnoor, District Jammu. In the aforesaid application, the applicant stated that Yatri Hotel was not the only building that had been constructed in violation of the municipal laws but there were large number of such buildings and hotels constructed in total violation of such laws. The applicant in that application named more than nineteen of such hotels and stated that these hotels had been constructed on municipal land, nallas, public roads etc. and that there was a nexus between the offenders and the municipal authorities. Though that application was dismissed as withdrawn by this Court with liberty to file writ petition in accordance with law, yet one thing is clear that there has been something fishy in the whole affair which needs to be investigated and probed into. The facts and circumstance and figures enumerated above smack of willful, deliberate and tacit dereliction on the part of officers of the Municipality and possibility of resort to corrupt practices by them cannot be ruled out. Therefore, in our view, this is a fit case where the Vigilance Organisation should be asked to register a case and investigate the matter. Our assessment of the situation is buttressed by the fact that, in the instant matter, the Executive Officer had suggested for taking the matter even to the Supreme Court, challenging the order of the Tribunal.
In this behalf, he had also directed putting up the file before the counsel of the Municipality, Shri S. S. Nanda, but the concerned officials did not do that; they instead proposed against the challenge and for accepting the compounding fee. The Executive Officer, thereafter, seems to have succumbed to the suggestion. What made him to change his mind and what prevailed upon the concerned officials to make such suggestion are matters, which need to be probed into. Similarly, what were the circumstances that prompted the concerned municipal authorities to overlook the site plan, covering an area of land more than the one owned by Munshi Ram, and approve the same in total disregard of the laws on the subject is highly enigmatic. In pursuance of directions of this Court, the Municipality has also furnished to this Court the names of the concerned officers who at the relevant time were at the helm of affairs and responsible for taking necessary action in accordance with law. They are Shri Shyam Lal (Administrator), presently posted as Secretary, Public Service Commission; Ravi Thussu (Executive Officer), presently posted as Relief Commissioner, Jammu; Ravi Kant Sharma, Khilafwarzi Officer, presently Chief Khilafwarizi Officer, Jammu Municipal Corporation and Kesar Singh, Clerk of Jammu Municipal Corporation.
35. For all what has been discussed above, we dismiss the writ petition, OWP No. 25/1997, and quash order dated 10th October, 1997 passed by the Tribunal in file No. STJ/334/96 titled Munshi Ram v. Executive Officer, and direct restoration of status-quo-ante vis--vis the building in question, namely, Yatri Hotel, as it existed on the date of filing of the writ petition, as described in paragraph 4 of the writ petition quoted in this judgment. The authorities of Jammu Municipal Corporation in co-ordination with Jammu Development Authority shall restore status-quo-ante, as directed above, with respect to the building 'Yatri Hotel' forthwith. Station House Officer, Police Station concerned shall make necessary police arrangements on the spot to maintain peace and take necessary action against any person trying to impede the demolition process.
Commissioner, Vigilance Organization, Jammu and Kashmir, shall register a case and investigate into the conduct of affairs by the concerned municipal officers/officials as observed in this judgment. Commissioner, Jammu Municipal Corporation shall provide all and every possible assistance and record to the Vigilance Organization that may be required in this behalf. Registry shall provide a copy of this order free of cost to the Commissioner, Vigilance Organization, for necessary action. The Commissioner Vigilance is directed to submit status report of the investigation to this Court during the first week of every month till its completion.
36. We further direct that the matter be placed before the Chief Justice along with the file relating to the enquiry conducted by Registrar General regarding the two files referred to in this judgment together with the record of this writ petition and the civil revision.
37. The record of civil suit No. 182/civil be returned to the court concerned. Records produced by Shri S.S. Nanda have been returned to him in the open court.