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Judgment
Ram Mohan Reddy, J.—This application is filed by the writ Petitioner for the following relief:
Hon''ble Judge may please recuse from the matter and refer the matter to Hon''ble Chief Justice for being assigned to any other Bench, in the interest of justice and equity.
In the affidavit accompanying the application, sworn to by one Hemant Gulati claiming to be the authorised representative of the Petitioner states that a memo was filed not to proceed in the matter and since it was not supported by an affidavit, hence the application. It is stated that the writ petition was classified as GM-RES and was heard by Judges having roster, when the Petitioner''s Learned Sr. Counsel argued the matter on several dates. W.P. 14564-65/2009 filed by Noor Jahan and another for early construction of the EWS quarters classified as BMP-LB-BMP when listed for prl. hearing on 2.6.2009, this Court informed of the pendency of this writ petition, instead of tagging the same as subsidiary to the main matter directed putting up of records though the Court had no roster for GM. It is stated that on 3.6.2009 this writ petition was reclassified as LB-BMP without any indication or an order of the Hon''ble the Chief Justice. The petitions were listed on fourteen occasions between 3.6.2009 to 6.8.2009 whence Learned Sr. Counsel addressed arguments. On 14.8.2009 as the Learned Sr. Counsel was unwell and the advocate on record noticed that the petition did not reach till 1.30 P.M.. nevertheless the petition was taken up at 2.30 P.M. whence the advocate on record went away as a Division Bench was to be constituted. The Division Bench having not been constituted, this Court resumed work, called the case out of turn and dismissed the petitions for default. The application for recalling was not taken up since the Learned Judge was presiding at the circuit Bench, Gulbarga.
It is further stated that there was extreme urgency and therefore on the Petitioners'' request, Hon''ble Chief Justice passed a special order to list the application for recalling before the Judge having the roster. Thereafter certain proceedings took place and in the meanwhile the Learned Judge having returned from Gulbarga, the application to recall the default order was listed on 2.11.2009 though the Judge did not have the roster for LB. The Petitioner having objected to the hearing of the case, the Learned Judge directed the registry to place the matter before the Hon''ble the Chief Justice. Yet again on 1.12.2009 the application to recall the default order came up for consideration before this Court, whence the Learned Sr. Counsel for the Petitioner having addressed arguments over the application the default order, was recalled. According to the Petitioner the order recorded on 12.11.2009 in the order sheet was erased by applying whitener and in its place a four page order was passed without the knowledge of the Petitioner. In the light of the order of the Hon''ble Chief Justice on the administrative side to list the matter before the Judge having the roster the petition could not have been placed before this Court as the petition ceased to be part-heard.
It is further stated that the petition was finally heard along with the connected petition, whence it was pointed out that 5th Respondent an ineligible tenderer responsible for largescale manipulation of tender documents led to the filing of a memo with certain documents not produced earlier. After the petitions were reserved for judgment on 17.12.2009, however on 4.1.2010 this Court passed an order recalling all its earlier orders and directed the registry to place the matter before the Hon''ble the Chief Justice, whence the petitions were listed before Hon''ble Mr. Justice B.S. Patil who held the roster. There after wards the roster having changed the petitions were listed again before this Court and hearing continued, the application filed by the Petitioner urging additional facts and grounds was allowed on payment of cost of Rs. 50,000/-.
According to the applicant this Court having passed orders and made several oral observations casting aspersions about the Petitioner, reflects undue prejudice and therefore the memo dt. 18.3.2010 over which the Court directed the Petitioner to show cause as to why proceedings for contempt should not be initiated, which too reflects undue prejudice.
It is in these circumstances, applicant states that he apprehends that justice would not be done in a fair and unprejudiced manner. Hence the application.
Petition is opposed by filing statement of objections inter alia denying the allegations and contending that the apprehension of the Petitioner is misconceived and that the allegations are uncharitable, meritless and further that the Learned Sr. Counsel for the Petitioner being ready and willing to argue the matter and in fact had done so, cannot make a turn round, more so, after conclusion of the arguments, to file the present application. The re-classification of the file from GM-Res to LB-BMP being a ministerial act of the registry is a correction of a wrong classification. The application, it is stated deserves to be dismissed with exemplary cost.
In the light of the affidavit accompanying the application asserting an apparent bias to disqualify this Court from proceeding to pass a final verdict after the conclusion of hearing there is a need to set out necessary facts:
I) The reduction to rubble due to instability of the multistoried residential buildings housing 1500 families belonging to the economically weaker Section led to the invitation of tenders for erection of residential-cum-commercial complex by the BBMP, responded to by the Petitioner and the 5th Respondent amongst others, followed by a resolution of the BBMP accepting the 5th Respondent''s bid, which when approved by the State Government resulted in filing this writ petition on 4.11.2008;
II) The Registry classified the petition as (GM-RES) and when listed before a Learned Single Judge the Learned Sr. Counsel appeared, and an interim order of stay was granted. The registry having noticed the inherent flaw in the classification, corrected the same by rectifying it as LB-BMP and listed the petitions for hearing along with other writ petitions filed by displaced families.
III) Though Sr. Counsel for Petitioner was heard on several dates of hearing and the petitions were adjourned to 14.8.2009 by order dt. 6.8.2009, the petitions were dismissed for non-prosecution on 14.8.2009. Petitioners filed Misc. applications to recall the default order which was placed before a Learned Single Judge although the order of dismissal of the writ petitions for non prosecution when dictated was neither transcribed nor autographed since the Learned Judge was presiding over the Circuit Bench at Gulbarga. The registry took custody of the records from the chambers, of the Learned Judge without authorisation, and placed them before another Learned Judge for orders on the application to recall the default order.'';
IV) The Learned Judge by order dt. 28.8.2009 having noticed the earlier order dt. 6.8.2009 directed the applications and petitions to be placed before the Hon''ble the Chief Justice for further orders so as to list them before the Circuit bench at Gulbarga. The Hon''ble the CJ, directed the petitions be placed before the learned Judge at Bangalore, whence a certain interim order was passed;
V) On 2.11.2009 the Misc. petition to recall the default order was placed before this Court and adjourned to 12.11.2009, whence due to paucity of time, only the operative portion of the order was dictated directing that the petitions be placed before the Hon''ble the Chief Justice, for reasons to follow. After the reasons were dictated and transcribed on 12.11.2009 the registry by a note dt. 30.11.2009 pointed out that as the roster relating to part-heard matters remained with the same bench, the application for recalling the default order was required to be disposed of by the same Bench unless ordered otherwise, and hence the applications were re-listed before this Court;
VI) After hearing the Learned Sr. Counsel for the parties, the Misc. applications were allowed, and the default order recalled and the petitions restored, pursuant to which arguments were addressed by the respective Learned Counsel and the petitions were reserved for judgment on 17.12.2009.
VII) Having regard to the contentions advanced in the written arguments filed by the Learned Sr. Counsel for the Petitioners, this Court on 4.1.2010 recalled all its previous orders and directed the registry to comply with the order dt. 12.11.2009 whence the Hon''ble the Chief Justice specially ordered the listing of the petitions before this Court on 12.1.2010 since this Court held the roster for LB-Res.
VIII) On the date of hearing the Learned Sr. Counsel for the Petitioner submitted that the Petitioner would have no objection for this Court to hear the applications as well as the petitions, whence the applications were heard and allowed, restoring the Writ petitions to file and thereafter Learned Counsel once again advanced arguments on the main petition.
IX) On 10.3.2010 Petitioner filed an application to advance additional pleas and produce documents which was allowed by order dt. 17.3.2010 on payment of cost of Rs. 50,000/-
X) After the conclusion of the arguments by the Learned Sr. Counsel for the parties, Learned Sr. Counsel for the Petitioner having sought a day''s accommodation to submit a reply, nevertheless filed a memo dt. 18.3.2010 not to proceed with the hearing of the petition in the "light of prejudice reflected in the orders and past events, said to be based on instructions of Hemant Gulati." That memo was ordered directing Hemant Gulati to show cause as to why action for contempt of Court should not be initiated.
XI) On the conclusion of the arguments, in reply, by the Learned Sr. Counsel for the Petitioner, Judgment was reserved on 19.3.2010 due to paucity of time to dictate the judgment on the same day as this Court had to preside over the Circuit Bench at Dharwad.
XII) The registry it appears received this application to recuse from the matter, in the afternoon on the said date.
XIII) Registrar judicial having held an enquiry into the registry''s interjection in correcting the classification of the petition from GM-RES to LB-BMP, observed thus:
Since the endorsement is made inadvertently and without there being any order from the Hon''ble Court to the said effect, a further note shall be put to the effect that WP was reclassified on noticing that it was wrongly classified as ''GM-RES" and it ought to have been classified as "LB-BMP.
Before considering the grievance of the Petitioner, it would be worthwhile to notice certain traditions and principles in the matter of conduct of litigants and Judges. Judges being under the Constitution and not over it have an important role to play in order that our Republic lives upto the promise in the Constitution. Judges are chosen with an eye on the values of the constitution and the rights of people. Winston Churchill expressed in the House of Commons "Humanity, not legality is the quintessence and conscience of the Courts'' functionality". Judges being humans and ordinarily of high standards, rarely commit serious solecisous or fundamental flaws, hence the hierarchy for decisional review and correctional reversal. It is therefore, elsewhere said that the judiciary has a sublime status and commands the reverence of the people which is a great tribute to this national institution and necessarily, judges have the highest duty to the people of administering justice, based on fearless truth, moral rectitude and negation of addiction for power and lucre.
In R. Viswanathan Vs. Rukn-Ul-Mulk Syed Abdul Wajid, the Supreme Court observed thus:
If every remark of a Judge made from the bench is to be construed as indicating prejudice, I am afraid most Judges will fail to pass the exacting test. In the course of arguments, Judges express opinions, tentatively formed, sometimes even strongly, but that does not always mean that the case has been prejudged. An argument in court can never be effective if the Judges do not sometime point out what appears to be the underlying fallacy in the apparent plausibility thereof and any lawyer or litigant who form an apprehension on that score, cannot be said to be reasonably doing so. It has frequently been noticed that the objection of a Judge breaks down on a closer examination and often enough, some Judges acknowledge publicly that they were mistaken. Of course, if the Judge unreasonably obstructs the flow of an argument or does not allow it to be raised, it may be said that there has been no fair hearing.
In M.Y. Shareef and Another Vs. The Hon''ble Judges of The High Court of Nagpur and Others, in the matter of an application for transfer of a case from the bench hearing it to another Bench of the High Court on the basis that the observations and references by the Judges created bonafide belief in the applicant''s mind that they were prejudiced against him, it was held that the application for transfer constituted contempt because the Judges were scandalised with a view to divert justice and the two advocates who signed and prosecuted the application were found guilty of contempt. The Supreme Court further held that when there is a conflict between the obligation of a Counsel to the Court and his duty to his client, it is the former which prevails by observing thus:
when Counsel signed applications or pleadings containing matter scandalising the Court without reasonably satisfying themselves about the prima facie existence of adequate grounds therefor, with a view to prevent or delay the course of justice are themselves guilty of contempt of Court and that it is no duty of the counsel to his client to take any interest in such application; on the other hand, his duty is to advise his client for refraining from making allegations of this nature in such applications.
In Radha Mohan Lal Vs. Rajasthan High Court (Jaipur Bench), (Jaipur bench) the Apex court held that the liberty of expression cannot be equated or confused with a licence to make unfounded and irresponsible allegations against the judiciary as the effect is lowering of the dignity and Authority of the court and an affront to the majesty of justice.
Administrative power of the Chief Justice to constitute benches providing roster and transfer of cases is the prerogative of the Hon''ble Chief Justice. However, it is the prerogative of the concerned Judge to recuse himself from hearing if in the facts and circumstances necessitates the Judge from doing so. Thus, the duty of the Judge is to hear and dispose off the cases allocated by the Hon''ble the Chief Justice, while the propriety not to hear the matter lies with the concerned Judge.
In Dr. D.C. Saxena, Contemnor Vs. Hon''ble the Chief Justice of India, the Supreme Court held thus:
xxxx when an advocate or a party appearing before the Court requires to conduct himself in a manner befitting to the dignity and decorum of the Court, he cannot have a free licence to indulge in writing in the pleadings the scurrilous accusations or scandalisation against the Judge or the Court. If the reputation and dignity of the Judge, who decides the case are allowed to be prescribed in pleadings, the respect for the Court would quickly disappear and independence of the judiciary would be a thing of the past.
In the context of litigants and lawyers attempting to get a case released from a Judge, the Supreme Court in M.B. Sanghi, Adv. Vs. High Court of Punjab and Haryana and others, deprecated such a practice as it would tantamounting to forum shopping, an interference with administration of justice.
In Municipal Corporation of Greater Bombay v. Annatte Raymond Uttanwala Smt (1987) Cri LJ 1038. it is observed that some adopt sophisticated methods while others crude ways in perverting the administration of justice at various levels and therefore, they must be brought to book as there is no other way to stem the rot and arrest the degeneration that has set in the profession and in the administration of justice. It was made clear that legal profession is a service profession and not a trade or business and the Courts of law are not shopping centres and in the interest of administration of justice an example be made of errant member of the profession.
The contempt power is secured by statutory authority and by specific Articles implicit in the constitution itself where even free speech, although a fundamental right, is subject to Courts'' contempt power. Yet again such power is to be exercised with circumspection. Lord Denning once said "Insults are best treated with disdain." And on another occasion the decision to dismiss a petition for contempt, by none other than the Attorney General who wrote in the ''Time'' that Denning was an ass, is the Judges'' excellent performance.
The deponent to the affidavit is represented by an advocate, who supposedly viewed the averments therein. A word of caution in the words of Justice V. Krishan Iyer is apposite:
Lawyers cannot long survive amidst mass misery as cunning craftsmen but only as fluent artists. It is time for one and all to review the value of the great saint "God sleeps in the mineral, wakes in the vegetable, walks in the animal and thinks in man".
It must be remembered that Judges do not yield to frivolous or trivial grounds or suggestions of apparent bias since it would place a burden on Judge''s colleagues and encourage parties to believe that by such disqualification, they may have their cases transferred from a Judge whom they wish to avoid.
Having given an objective, fair and reasonable consideration to the circumstances at paragraph 8 supra, it is obvious that they do not present a real possibility of apparent bias to disqualify myself from passing a final judgment. The Petitioner though brazenly seeks to slander the Courts reputation, without for a moment indicating that the Petitioner is successful in seeking a disqualification to have its petition heard by another to avoid this Court, in order to uphold the majesty of the judiciary, I refrain from taking action against the Petitioner though ought to suffer the consequences.
Further proceedings pursuant to the order dt. 18.3.2010 are dropped and this application is rejected.