Patna High Court
Rotary Club, Begusarai Etc. vs State Of Bihar And Ors. on 20 October, 2000
Equivalent citations: AIR2001PAT115, 2000(48)BLJR2184, AIR 2001 (NOC) 115 (GAU), 2001 AIHC 3685, 2000 BLJR 3 2184, (2002) 2 ACJ 757, (2002) 1 TAC 155, (2001) 3 GAU LR 642, (2002) 1 ACC 325, (2001) 1 PAT LJR 191
Author: Aftab Alam
Bench: Aftab Alam
ORDER
1. These two petitions are quite unfortunate and taken as a measure of the level to which the proceedings before this Court has gone down, they leave this Court indignant, disturbed and sorrowful. In both the civil review petition and the writ petition the common prayer was for the review of the judgment and order dated 27-6-2000 passed in CWJC No. 6694 of 1999 (hereinafter referred to as 'the main case'). The only difference was that while the civil review petition was filed on behalf of the party which was respondent No. 4 in the main case, the writ petition was filed by certain persons who were neither parties to the main case nor could they be said to have any concern with the issue (s) arising in the main case. The writ petition was clearly intended to be a prop for the civil review petition; it was filed quite irresponsibly and without giving any thought regarding its maintainability. But in the case of the writ petition better sense prevailed at an early stage and the counsel appearing for the petitioners in that case, realised the mistake in filing the writ petition without losing much time. Within moments of the commencement of the submissions on the writ petition (on 22-8-2000) learned counsel sat down stating that he wished to withdraw the petition and on the next date (25-8-2000) he filed a brief and simple petition seeking unqualified permission from the Court for withdrawal of the writ petition for withdrawal lies on the record of this case.
2. Unfortunately, that was not the case in the civil review petition which was sought to be pressed with vigour, paying no heed to the repeated words of caution and warnings by the Court, not only in observations made in course of hearing of the case but also formally recorded in the order, dated 25-8-2000. However, at the fag end of the hearing when the submission of all concerned in this matter had concluded, counsel representing the petitioner in the civil review petition got up in a rather uncertain manner and made an oral prayer for withdrawal of the review petition. The prayer for withdrawal alas came too late and after all the damage, that was being apprehended by the Court from the beginning, had been caused.
3. Having regard to the nature of the controversy and the manner in which this case has proceeded, it will be quite wrong to allow a simple withdrawal of the petitions under consideration and the Court deems it fit and proper to put on record its strong disapproval of the conduct of the petitioners, specially in the civil review petition. The Court also wishes to address itself to some of the allied issues arising from the proceedings in these two petitions. Hence, I proceed to write this order.
4. The order of which review is being sought gave directions for removal of a double storied pucca building found to have been constructed at Begusarai on plots of land, forming part of National Highway 31. The order was passed in the main case which was filed as public interest litigation.
The petitioner in that case stated that a building was constructed by the Rotary Club, Begusarai (respondent No. 4 in the main case and the petitioner in the civil review petition in hand) on the following plots of land :
Khata No. Khasra No. 38 4 87 69 69 21 90 68 It was further stated that the aforesaid four plots formed part of the land acquired for construction of national highway; that on the land acquired for the purpose, national highway was in fact constructed and part of the acquired land was left as flank or for future extension of the highway. It was also stated that the District Magistrate, Begusarai had unauthorisedly allowed Rotary Club to construct the offending building on a portion of land left as flank and for future extension of the national highway.
5. As the facts of the case unfolded it became an admitted position that the Rotary Club, Begusarai had in fact constructed a big, double storied, pucca building on the plots of land as indicated above. The building besides providing space for the office of the Rotary Club was also said to have some social purpose; some community health-care programmes were carried on from there and vocational classes for stitching, tailoring etc. were also held there. Lately, a blood bank was also set up in that building. The construction of the building on the four plots in question not being in dispute the only question, purely of fact, that remained tobe ascertained was whether or not the four plots formed part of the land of national highway 31.
6. In the counter-affidavit filed on behalf of the Rotary Club, Begusarai it was not expressly denied that the piece of land in question was a part of the national highway. On the contrary, it was admitted that the piece of land. 0.40 decimals in area, was located "at thejunction of the national highway and the main road going east to west near the Harihar Mahadev Chowk". From the counter-affidavit it appears that the deponent's idea of a road was only its metalled part and the deponent further seemed to maintain that the occupation of the land by the Rotary Club and its action in constructing the building there could not be questioned as irregular, illegal or invalid for the reason that the land was given to the Rotary Club, Begusarai under a licence by the District Magistrate, Begusarai. Having expressed such simple beliefs held by the deponent, the counter-affidavit went on to inform this Court that the Rotary Club, Begusarai in its activities got the support and patronage of some very important persons such as the District Magistrate, Begusarai. the Member of Parliament from Begusarai and the Governor.
7. It was also brought to the notice of the Court that in the licence to operate a blood bank issued by the State Drugs Controller the premises from where the blood bank was operating was described as "situated at national highway 31". Also, from the photographs brought on the record it appeared that the boundary wall of the land in question, constructed by the Rotary Club, was standing almost adjacent to the national highway and right on its flank. The Court took notice of these materials without accepting them as being conclusive of the fact that the plots in question were in fact part of national highway 31.
8. What conclusively settled the issue was the stand of the State and the District Magistrate, Begusarai. The District Magistrate, Begusarai was personally present in Court all through the hearing of the case on 26-6-2000 and on 27-6-2000 when the order under review was dictated in open Court. The State was being represented by the A.A.G. III who produced before the Court a survey map of the area in question. The survey map was certified by the Collector, Begusarai apart from the District Land Acquisition Officer and the Estate Officer, Begusarai. In the survey map the national highway was shown by two parallel dotted lines. Running through the centre between the two dotted lines was shown a darkened strip, indicating the metalled portion of the road. All the four plots over which the offending construction was made were shown quite close to dark strip and definitely within the two dotted lines i.e. the national highway. If that was not conclusive the District Magistrate stated expressly and in so many words that the plots on which the building was built was part of national highway 31. This Court in its order dated 27-6-2000 (reported in 2000 (4) Pat LJR 362) noted this fact as follows (Para 2) :.
"The District Magistrate, Begusarai. respondent No. 3 is present in Court. She is instructing learned Addl. Advocate General III. She has stated and accepted that the offending constructions are on the public highway and within the width of the area, which has been marked conforming use of the road. The learned Addl. Advocate General III, placed the survey maps made out by the State-respondent and certified by the District Magistrate, Begusarai and affirmed that the location is not in doubt and further made a statement on behalf of the State of Bihar, upon instructions from the District Magistrate present in the Court, that the constructions are on the public road and highway's side patri, and on the space and area, the conforming use of which is reserved for the road. He further stated that it is a matter of record that "permissive possession" was given without any proprietary right to Rotary Club."
and further it was observed as follows (para 6 of Pat LJR) :
"On 28 April 2000, the Court indicated to the learned Additional Advocate General III, appearing for the State, that the District Magistrate, Begusarai must file his affidavit and with responsibility indicate, after a survey, the exact location of the alleged illegal constructions. Thus a supplementary counter-affidavit was filed on behalf of respondent No. 3, the District Magistrate. This time the counter-affidavit was affirmed by the District Magistrate. Along with this counter-affidavit was filed a survey map, which was duly verified by the Estate Officer, Begusarai, District Land Acquisition Officer, Begusarai, the Collector and District Magistrate, Begusarai and two other officials of the District. This was a survey of the area in context, it showed the National Highway 31 as dedicated in its conforming use as a highway. The width of the National Highway is marked by parallel dotted lines. The offending constructions are within the parallel dotted lines. The area of the plots as is referred to by the petitioner in paragraph 3 is shown to be within the width of National Highway 31. The original survey maps were shown to the Court, and copies of these (two) are appended to the supplementary counter-affidavit of the District Magistrate."
9. in view of the survey map and the unequivocal statements made by the District Magistrate. Begusarai, nothing remained of the controversy and this fact was stated in the order as follows (Para 9 of Pat LJR) :
"After these facts had been noticed, and submissions made by learned counsel appearing for the respective parties, and regard also being had to the Supreme Court decisions, there was no issue left, as the existence of the offending constructions was clearly on the public road (in this case, the national highway). learned Additional Advocate General III made a clear statement that he cannot justify the circumstances on behalf of the State of Bihar. He further stated that the District Magistrate present in Court accepts that the constructions on the public highway, and thus the survey map clearly records the constructions on the four plots of the survey map as within the width of National Highway 31. The District Magistrate, Begusarai, respondent No. 2, was present in Court. She made a statement that the constructions are on National Highway 31. and had them pointed out through Additional Advocate General III to indicate their locations as on the survey map. She accepted that the four plots which contain the constructions are on National Highway 31 and within the dotted portions which indicate the National Highway."
10. Thus, practically nothing was left to argue for Mr. R.B. Mahto, Senior Advocate who was appearing for the Rotary Club, Begusarai assisted by Mr. Rajeev Ranjan Prasad, Advocate-on-record. Yet in order to salvage for his clients whatever he could. Mr. Mahto pleaded before the Court that the blood bank served an important social need and its closure would benefit no one. He accordingly made a plea that the local administration may consider relocating the blood bank set up in that building to some other site. In that connection he gave an undertaking that the Rotary Club will move out of the piece of land in question and the building constructed there within a month from the date of the order. On such a plea being made, Addl. Advocate General III advised the District Magistrate, then present in Court, that on a request made by the Rotary Club the blood bank may be given a suitable accommodation, if possible, within the precinct of the local Government hospital. As regards the statue of Dr. Rajendra Prasad installed on the site, the District Magistrate assured the Court that it would be removed from there with all due respect and reinstalled within the precinct of the Government Hospital or any other suitable site be fetting a memorial to Dr. Prasad. In view of the aforesaid, this Court concluded that, order by observing as follows (2000 (4) Pat LJR 362, para 19) :
"Counsel for the State Mr. Ganga Prasad Roy, Addl. Advocate General III and Mr. Ram Balak Mehto, Senior Advocate appearing for the private respondent No. 4, I however, have both stated that the situation cannot be justified. As the Senior Advocate appearing on behalf of the respondent No. 4, Rotary Club has given an undertaking and simultaneously learned Addl. Advocate General III, Mr. Ganga Pd. Roy has mentioned that the blood bank may be shifted to the premises of the Government Hospital and the Statue of Dr. Rajendra Prasad will be place within the premises of the hospital or any other suitable place within ihe precincts of a public institution, no direction need to be issued. Suffice it to say that if within a month occupation and possession from the plots under the licence granted to respondent No. 4 is not removed voluntarily, then the State-respondents shall move in and remove the encroachments."
11. This order was passed by this Court on 27-6-2000. And now I recall coming across a news item in the local 'Hindustan Times' of July 4. 2000 with the heading "Rotareans to move H.C. for review of order." At that time I did not give it a second thought as it is perfectly within the right of everyone to avail of whatever remedies there may be for the redressal of one's grievances. But now looking in retrospect one can clearly see how things proceeded. In the main case the counsel appearing for the Rotary Club was rendered without defence in view of the irrefutable materials produced before the Court. Then, keeping the best interests of his clients in mind and with a view to ensure the survival of the blood bank he tried to strike a bargain by making an offer that the Rotary Club would vacate the building and the land in question on its own. However, to the persons in control of the club this position was unacceptable and they declared their intention to back out of the commitment given to the Court within a week of the passing of the order.
12. Later, on 10-8-2000 the writ petition in hand (CWJC No. 7341/2000) was called out for admission. A prayer was then made for having the writ petition listed along with the civil review petition which on the date was not on the list. At that time this Court also came to learn that the Rotary Club, Begusarai had filed S.L.P. (Civil) No. 11507/ 2000 before the Supreme Court against the judgment and order, dated 27-6-2000 passed by this Court in the main case. Before the Supreme Court it was stated that the petitioner (Rotary Club, Begusarai) intended to file a review petition in the High Court and on that statement the Supreme Court had dismissed the special leave petition as withdrawn by order, dated 1-8-2000. The review petition was then filed in this Court on 9-8-2000. That being the position this Court directed for listing the writ petition and the civil review petition together on a date specified by the petitioners. It was further directed that a copy of the special leave petition filed before the Supreme Court be also produced. Counsel for the petitioner in the civil review petition duly filed copies of the special leave petition which lie on the record of this Court.
13. The writ petition in hand, as noted above, was filed by four individuals who were neither parties in the main case nor did they have any concern with the issue(s) arising in the main case. In an attempt to establish their locus standi to file the writ petition, they told this Court that the building in question was constructed by the Rotary Club, Begusarai by collecting public donations and they too had made monetary contributions for the construction of the building. This, according to them, gave them sufficient right to maintain this writ petition, asking the Court to review its earlier order and to question the offer made by Mr. Mahto that the Rotary Club would vacate the building on its own. Having thus 'created' their locus standi the writ petitioners went on to assail the maintainability of the main case and to justify the occupation of the land in question by the Rotary Club, Begusarai and its construction of the offending building there. In my view, the plea on which the writ petition was sought to be maintained before this Court was completely frivolous and the filing of this writ petition was an act of irresponsibility. However, Mr. Sunil Kumar. counsel appearing for the writ petitioners made substantial amends by making a prayer for withdrawal of the writ petition without much ado.
14. This leaves the Court with the civil review petition filed on behalf of the Rotary Club, Begusarai. In this petition the Court was tried to be convinced that its earlier finding that the offending building was constructed on a piece of land forming part of national highway 31 was erroneous. The Court was sought to be convinced in this regard in two ways; first on the basis of discovery of some 'new' material in the form of an enquiry report, dated 3-5-2000 and secondly by making direct and frontal allegations against the counsel appearing in the main case that concessions/admissions made by them were not only factually incorrect but were also made unauthorisedly and without the knowledge of the review petitioner.
15. Before proceeding to examine the grounds for review it is to be noted that there is no change in the stand of the State. On behalf of the State Government it was still maintained that the offending building was constructed on a piece of land forming part of national highway 31 and the licence in respect of the land given by mistake. In fact while in the main case the State was represented by Addl. Advocate General III. this time the Advocate General himself came to oppose the review petition and to reiterate the earlier stand of the State.
16. We now come to examine the 'new' material produced by the review petitioner. What is produced with some fanfare as the 'new' material, heitherto not considered by this Court, is a report, dated 3-5-2000 submitted jointly by four officers, including the District Land Acquisition Officer and the Executive Engineer, N.H. 31 Division, Khagaria to the Collector, Begusarai. It appears that in connection with the main case the Collector, Begusarai had asked for an enquiry and the enquiry report was submitted in response to the Collector's direction. According to the report the Rajendra Memorial Park and the Rotary Club building were situate in the [triangular) space formed at the meeting point of Tirhut Road and National Highway 31. It was further stated in that report that the park and the building were situate on the piece of land left vacant after the construction of National Highway 31; that at present National Highway 31 was four lanes wide and no inconvenience was caused in the flow of vehicles and that after being made four lanes wide, additional 60' land was remaining on the north of National Highway 31.
17. According to the review petitioner this report was not examined by the Court as it was not produced earlier. Further, according to the review petitioner this report would fully justify the construction of the building on the site in question and would prove as wrong and incorrect both the survey map and the statement of the District Magistrate made before the Court.
18. I am inclined to reject the submission out of hand. Though it is true that the enquiry report, dated 3-5-2000 (copy of Annexure 1 to the review petition) was not produced before this Court earlier, it is to be noted that the contents of this report are no different from the pleadings made in the first counter-affidavit filed on behalf of the District Magistrate, Begusarai in the main case. This counter-affidavit though on behalf of the District Magistrate, was affirmed by the District Land Acquisition Officer. In para 7 of this counter-affidavit, it was stated that "there is a 'Rajendra Sniarak' between N. H. 31 and Municipal Road ............ Behind the Statue (of Late Rajendra Prasad) there is a children park and a community hall with the only blood hank with modern facility in the entire district of Begusarai ..........
. . These constructions, in no way, affect the normal free flow of traffic on, N. H. 31 nor on the Municipal Road. Neither these will affect the future widening of N, H. 31 and Municipal Road." in para 9 it was further stated that "since the construction docs not effect the free flow of traffic and future widening of roads. .........."
19 it is, thus, to be seen that the enquiry report, dated 3-5-2000 does not state anything new or different from what was stated in the first counter-affidavit filed on behalf of the District Magistrate, Begusarai. This counter-affidavit was considered when the main case was taken up on 28-4-2000 and finding it to be quite unsatisfactory the Court directed Addl. Advocate General III to ask the District Magistrate to file a counter-affidavit personally and to indicate responsibly and on the basis of a survey, the exact location of the alleged illegal construction. It was in pursuance of that direction that a supplementary counter-affidavit was filed which was personally affirmed by the District Magistrate, Begusarai and which enclosed a copy of the survey map in which the four plots were clearly shown as falling within the parallel dotted lines representing N. H. 31. Further, the pleadings made in the first counter-affidavit were not lost sight of even while passing the final order on 27-6-2000 and in that order those pleadings are taken note of in detail in the paragraph beginning as "the next counter-affidavit is the one filed on behalf of respondent No. 3, on 25th August, 1999." it is, thus, clear that the contents of the enquiry report, dated 3-5-2000 are nothing new and have been duly taken note of by this Court. I would only wish to add here that the enquiry report seems to be based on the same misconceived idea that a road is no more than its metalled portion.
20. The second ground which is based on serious accusations made against the previous set of counsel in the main case has turned out to be the most distasteful aspect of this case and that is the main reason for writing this long order for a case which was otherwise fit to be dismissed summarily. But before proceeding to examine the correctness of the allegations made against the previous set of counsel and the sufficiency of those allegations as a ground for review, some basic facts need to be clearly stated at the outset.
21. It is to be noted that the ground for review on the pica that the counsel representing the Rotary Club, Begusarai in the main case made wrong concessions on facts, unauthorisedly and without the knowledge of the petitioner, is based on the assumption that the finding of the Court that the offending structure was constructed on a piece of land forming part of N. H. 31 was made on the concession made by the counsel. That was not so. The Court had arrived at its finding on the basis of the survey map and the unequivocal statement of the District Magistrate, Begusarai made before this Court. There were some other materials also which were taken into consideration. In the face of such irrefutable materials the counsel appearing for the Rotary Club could do nothing but to accept that the construction of building on the site in question was unjustifiable. Then, with a view to try to save for his clients whatever little he could, the counsel had made the offer that the club would vacate the premises on its own and, as it would be seen hereinafter, even that offer was made after due authorisation and it was fully within the knowledge of the person representing the club at that time. Thus the premise for the second ground was itself unfounded as the Court's finding was not based on any concession made by the counsel; the counsel's concession was taken into account by the Court for asking the District Magistrate, Begusarai to relocate the blood bank in the premises of the Government Hospital and not to evict the club forcibly from the offending building for one month from the date of the order.
22. This takes us to another important fact in this controversy. While examining the allegations against the previous set of counsel, it is to be borne in mind that during the entire controversy no two petitions on behalf of the Rotary Club were filed by the same depondent. In the main case the counter-affidavit filed on behalf of the Rotary Club, Begusarai was affirmed by one Dinesh Tekriwal who described himself as the Secretary, Rotary Club, Begusarai. The Advocate-on-record for respondent No. 4 was Mr. Rajecv Ranjan Prasad who represented the Rotary Club in the proceedings held on May 19, 2000. Thereafter Mr. R.B. Mahto, Senior Advocate was also engaged and he. assisted by the Advocate-on-record, represented the Rotary Club on June 26 and 27. 2000.
23. However, the special leave petition before the Supreme Court was filed on the affidavit of someone other than Dinesh Tekriwal and the deponent in the special leave petition was one Chandra Prakash Rungta who described himself as the President, Rotary Club, Begusarai. In course of submissions it was sought to be explained that shortly after the order was passed by this Court on 27-6-2000 there was a change of office-bearers in the annual general body meeting and the aforesaid Chandra Prakash Rungta was elected as the new President.
24. Without going into the question whether or not the change of the officebearers was in the normal course of events I find that a number of statements made in the special leave petition could only be properly verified either by Dinesh Tekriwal or by the counsel appearing for the club in the main case before this Court. In this regard it may further be pointed out that a number of statements made in the special leave petition before the Supreme Court, having a direct bearing on the facts in issue were found to be wrong and incorrect. In sub-paras 'A' and 'D' of para 5 of the special leave petition it was represented before the Supreme Court that a copy of the supplementary affidavit enclosing the survey map was never served upon the petitioner and the petitioner had. therefore, no opportunity either to know what was shown in the survey map or to verify its correctness. Paras 5 'A' and 'D' are as follows :
"A. Because the Hon'ble High Court has passed the impugned judgment and order on the basis of the map produced by the District Magistrate filed along with her supplementary affidavit without affording the petitioner an opportunity to verify the correctness of the map and file a reply-affidavit to the said supplementary affidavit, in fact, the copy of the said supplementary affidavit was never supplied to the petitioner prior to the impugned judgment and order.
"D. Because the Hon'ble High Court has passed the impugned judgment and order on the consession given by the counsel appearing for the petitioner and also by the Advocate appearing for the State of Bihar. The consession given by the Advocates was mainly because of the wrong map submitted by the District Magistrate. The said map was filed by way of a supplementary counter-affidavit on behalf of the District Magistrate which was never made available to the-petitioner. The petitioner could not verify the facts stated therein, and also could not instruct his own counsel and, therefore, the counsel for the petitioner, believing the map to be true and correct, conceded before the High Court and a wrong order has been passed which will lead to grave injustice to the petitioner and to the people of Begusarai because the order of the High Court would completely kill the Blood Bank and the Blood Bank cannot run efficiently in a Government Hospital as has been directed by the Hon'ble High Court."
25. The statement of fact is quite incorrect as would appear from the affidavit filed in this review petition jointly by Mr. Rajeev Ranjan Prasad and Mr. R.B. Mahto. In para 18 of this affidavit Mr. Rajeev Ranjan Prasad, Advocate has pledged his oath to state as follows :
".......I had obtained a copy thereof (supplementary counter-affidavit) from the office A.A.G. III through my clerk. In course of discussion with the learned Senior Counsel, Shri Dinesh Tekriwal and Dr. Shailendra Lal, a copy of the maps produced by the pistrict Magistrate. Begusarai along with his supplementary counter-affidavit were shown to Sri Dinesh Tekriwal and Dr. Shailendra Lal and they accepted the position appearing from the map.
Mr. Dinesh Tekriwal and Dr. Shailendra Lal expressed their inability to swear affidavit against the maps and requested the Senior Counsel to seek maximum time to shift their activities. In case of an imminent order of demolition of structure is to be passed. They were advised to be present at the time of hearing of the matter 26-6-2000. the date fixed in the case."
26. It was on the basis of such patently incorrect statements of fact, made on oath, that the petitioner in the special leave petition urged the Supreme Court to intervene in this matter. The special leave petition was finally taken up on 1-8-2000 when the Supreme Court passed the following order :
Taken on Board.
"Learned counsel for the petitioner submitted that he intends to file review petition in the High Court as according to him the concession by the learned counsel was wrongly given on misconception of facts which he wants to point out to the High Court as on this consession the High Court has passed the impugned order. The special leave petition, therefore, stands dismissed as withdrawn. However, at his request, the demolition of the offending structure shall stand stayed for two weeks from today to enable the petitioner to do the needful in accordance with taw. We express no opinion on the merits of the controversy between the parties."
27. Thereafter, the review petition was filed in this Court on 9-8-2000. Surprisingly the deponent in the review petition is a third person, namely, Sandeep Agrawal who describes himself as the Secretary, Rotary Club, Begusarai. Needless to say that the review petition was filed by a different set of lawyers. The Advocate-on-record in the review petition is Mr. Manik Ved Sen who had absolutely no connection with the main case at any stage. In the writ petition as already stated above serious allegations were made against the previous set of lawyers both in the main body of the petition as also in the ground portion. In para 5 in the main body of the petition it was stated and alleged as follows :
"5. That as regard, the concessions / admissions and undertaking given by the learned counsel then appearing on behalf of the petitioner it is stated that the same had been unauthorisedly and without the knowledge of the petitioner. The statement made before this Hon'ble Court to the extent that the occupation of the Rotary Club of the plots with constructions upon them all within National Highway 31 was against the materials on record cannot be justified, and, that impression created that the National Highway had been encroached upon is clearly a wrong. This submission of the learned counsel then appearing on behalf of the petitioner is legally untenable and also factually incorrect. Similarly the undertaking offered by the learned counsel then appearing for the petitioner "that the Rotary Club will unwind its occupation from the 4 plots within a month" was wholly unauthorised and unjustified."
28. On different dates while hearing the review petition this Court expressly pointed out the impropriety in making such allegations against the previous set of lawyers and also pointed out that neither the deponent nor the Advocate-on-record in the review petition could be privy to a number of statemerits of facts made in the review petition but the review petition was pressed heedless of the notes of caution sounded by the Court. This Court then passed an order on 25-8-2000 giving permission to Mr. Rajeev Ranjan Prasad and Mr. R.B. Mahto to file their response to the allegations made against them in the review petition.
29. Following the permission granted by this Court Mr. Rajiv Ranjan Prasad, Advocate and Mr. Ram Balak Mahto, Sr. Advocate jointly filed a detailed affidavit. In my experience it is the first occasion when Advocates practising before this Court are put in a position where they are required to defend their professional conduct by filing affidavit in Court. A copy of this affidavit was duly given to the counsel for the review petitioner but no rejoinder to the lawyers' affidavit has been filed. The lawyers' affidavit gives the lie to the allegations made against them in the Civil Review Petition. It gives a detailed description of the proceedings in the main case from stage to stage. It is stated that Mr. Rajiv Ranjan Prasad appearing before the Court on 19-5-2000 was able to sense that on the basis of the survey map the final order of the Court was likely to go against his clients, the Rotary Club. Begusarai. He accordingly made a prayer for adjournment and on his prayer the case was adjourned to 26-6-2000. He then informed Mr. Dinesh Tekriwal regarding the possibility that the order might go against them in view of the survey map. It is further stated that he was then asked to engage Mr. Ram Balak Mahto to appear in the case on behalf of the Rotary Club. As advised by the client he engaged Mr. Mahto and on 24-6-2000 (two days before the case was due to be listed) a conference was held in the chamber of Mr. Mahto in which apart from the two lawyers, Mr. Dinesh Tekriwal and Dr. Shailendra Lal from the Rotary Club, Begusarai participated, Paragraph 18 of the affidavit gives all the relevant details regarding the date, time and venue of the conference as also the dramatis personae. It is further stated that in the conference discussion was made on the basis of the supplementary affidavit filed on behalf of the District Magistrate, Begusarai enclosing the survey map; that Dinesh Tekriwal and Dr. Shailendra Lal accepted the position as appearing from the map and expressed their inability to swear any affidavit contrary to the map. It is further stated that Mr. Mahto, Sr. Advocate expressed the opinion that in view of the map no fruitful defence could be taken and there was no basis or justification for saying that the building was not on the National Highway. Both the lawyers told Mr. Dinesh Tekriwal and Dr. Shailendra Lal that their case was indefensible and in the facts and circumstances of the case they could perhaps only be given some time to shift their activities to any other suitable place. Thereupon Mr. Dinesh Tekriwal and Dr. Shailendra Lal requested the Sr. Counsel to seek the maximum possible time for shifting their activities in case an order was passed for demolition of the structure. The lawyers advised them to be present in Court at the time of hearing of the case on 26-6-2000.
30. It is further stated in the lawyer's affidavit that after the order was passed in the main case no one from the Rotary Club, Begusarai consulted them before going to the Supreme Court or filing the Civil Review Petition. No attempt was made to verify from them the facts stated in the Special Leave Petition or the Civil Review Petition. Mr. Rajiv Ranjan Prasad was only approached for obtaining 'no objection' from him to engage other lawyer(s) for filing the Writ Petition/Civil Review Petition. As requested. Mr. Prasad duly gave his 'no objection' and sent an intimation in this regard to Mr. Dinesh Tekriwal by his letter, dated 3-8-2000.
31. One wonders what remains of the allegations against the previous set of Advocates or of the Civil Review Petition itself in the face of the lawyers' affidavit. And to think that in these facts and circumstances the Civil Review was argued on five days and it consumed countless hours of the Court's time. It is now evident that from the beginning it was an exercise in futility and a complete waste of the Court's time. The writ petition and the Civil Review Petition were filed simply because the order passed by this Court in the main case was not to the liking of some persons and they had sufficient money to try to get the order reversed and for getting their objective it was not beyond them to make serious allegations against two lawyers of this Court which on scrutiny turn out to be unfounded and false.
32. At the time of hearing of the writ petition/review petition, while trying to dutifully pay attention to the submissions being made on behalf of the petitioner. I was all the lime reminded of the observations made by the constitution Bench of the Supreme Court in L.I.C. v. Escorts Limited (1986) 1 SCC 264 : (AIR 1986 SC 1370) ;
"..............Indeed, and there was no way out, we also had the advantage of listening to learned and long drawn out, intelligent and often ingenious arguments, advanced and dutifully heard by us. In the name of justice, we paid due homage to the causes of the high and mighty by devoting precious time to them, reduced, as we were, at times to the position of helpless spectators. Such is the nature of our judicial process that we do this with the knowledge that more worthy cause of lesser men who have been long waiting in the queue have been blocked thereby and the queue has consequently lengthened,"
33. Before the Supreme Court there was some justification for the long drawn proceeding as the parties were after all fighting for the enforcement of their legal rights. This makes one ponder on the legal right of the review petitioner for the enforcement of which such bitter and tenacious litigation is being persued. But on this issue once again, one faces a highly curious situation as there is practically no legal right to be enforced in favour of the Rotary Club. It is the admitted position that the Rotary Club, Begusarai came in occupation of the four plots in question on the basis of a licence dated 7-4-1986 granted by the District Magistrate, Begusarai. A copy of the licence is on the record as an Annexure in the counter-affidavit filed by Mr. Dinesh Tekriwal in the main case. From the licence it appears that on the occasion of the birth centenary of Dr. Rajendra Prasad, the District Magistrate gave permission to the Rotary Club "to construct suitable park in the name of Dr. Rajendra Prasad and to develop the land in the shape of public park and garden." in almost all the paragraphs of the licence it ts stated that permission was given for developing the park in public interest and in paragrpah 4 there is a further condition that the land will not be utilised for any purpose other than the park and club. In the recital portion and in paragraph 4 there is also reference to "suitable construction for the purpose of club" but reading the licence as a whole it is clear that the permission was for developing the piece of land as a park in the memory of Dr. Rajendra Prasad and even taking into account the reference to 'suitable construction for the purpose of club' the licence certainly did not give any permission to the club to construct a big, double-storied building by the side of the national highway. Apart from the licence there is nothing to show that for the construction of the building the Rotary Club took any permission from the District Administration or from any other authorities exercising regulatory control over construction activities at Begusarai. Thus, apart from the fact that the grant of the licence was itself bad and illegal, the action of the Rotary Club in constructing the double storied, pucca building was patently in violation of the terms and conditions of the licence. The Rotary Club was therefore, liable to be evicted for violation of the terms of the licence. This is the nature of the right which is sought to be enforced in the name of social work.
34. For some people charity and social service are means to bring them closer to God; for some others providing saccour to suffering fellow human beings is a source of genuine and deep happiness even without any reference to God. There are still others who do social service to buy peace for their otherwise troubled conscience. But there appear to be still others for whom a little charity and social service specially under the banner of some international name is a means of self-projection and personal aggrandizement. By their conduct, the persons behind this litigation seem to belong to the last category.
35. In view of the discussions made above, I have no hesitation in holding that the allegations made in the Civil Review Petition against the previous set of lawyers are incorrect and false. I further find and hold that the statements made in the affidavit filed jointly by the previous set of lawyers are true and correct and I further hold that Mr. Mahto and Mr. Rajiv Ranjan Prasad did not make any wrong or unauthorised concession without the knowledge of their client and in conducting the case on behalf of their clients their actions were fully in conformity with the professional ethics for the lawyers.
36. I further find and hold that both the Writ Petition and Civil Review Petition are completely devoid of substance and are liable to be dismissed.
37. But before parting with the records of the case 1 would briefly like to address to the important issue of the conduct of lawyers and litigants which has been sharply brought into focus by these two petitions. I feel quite troubled by the way the Civil Review Petition was drafted and was pressed heedless of the warning sounded by the Court. When I first read the Civil Review Petition I was so shocked by the statement made in paragraph 5 that I pointedly asked Mr. Basudeo Prasad, Sr. Advocate whether the petition was shown to him before it was filed. He said that he had vetted the petition. I then asked Mr. Manik Ved Sen, Advocate on the record whether he had drafted the petition. He answered in the negative and stated that it was drafted by some lawyer at Begusarai and he had simply filed it under his name. To my mind as Mr. Ved Sen was appearing in the proceedings for the first time which had already had a round in this Court earlier common prudence required him to have the facts stated in review petition verified from the earlier lawyer Mr. Rajiv Ranjan Prasad. Had he done so he would have not only saved the Court from this unpleasent proceedings which turn out to be a complete waste of time but would have also saved himself from acute embarrassment. Recourse to review by change of lawyers is normally depricated by Courts. The practice becomes all the more reprehensible when review is sought on grounds pertaining to the previous conduct of the case or other grounds of fact normally within the knowledge of the previous lawyer(s). To my mind a lawyer must be very reluctant to take up a brief of review unless he had appeared in the case, the order passed in which is the subject of review. In case for some reasons a change of lawyer is unavoidable, the newly engaged lawyer would owe it to himself and to the profession to have the statement of facts duly verified by the lawyer earlier conducting the case. In case a review is filed by a new lawyer a certificate ought to be appended to the review petition, preferably by the previous counsel, stating that the facts stated in the petition were correct or alternatively by the newly engaged lawyer testifying that he had got the facts stated in the review petition verified by the previous lawyer.
38. The large and completely unregulated influx of lawyers into Courts has unfortunately given rise to many unhealthy trends and practices and the conduct of individual lawyers has become a matter of acute concern not only for the Courts but also for the professional bodies such as the Bar Council and the Advocates' Association etc. In past deliberations were made both formally and informally to evolve some regulatory mechanism for lawyers. A Division Bench of this Court had in fact suggested framing of rules regarding Advocates-on-record on the pattern of the Supreme Court. Requests in this connection have also come from the Bar Council and the Advocate General. I should take this opportunity to bring this matter to the notice of the Hon'ble the Chief Justice who is also a member of this Bench and who may perhaps wish to request the Full Court to frame such rules without any delay and before such unpleasent episode becomes more common. I feel that framing of rules regulating the conduct of lawyers before this Court is an urgent need of the hour.
39. in the result, both the Writ Petition and the Civil Review Petition are dismissed.