IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.43 OF 2006

Joydeep Mukharjee … Petitioner

Versus

State of West Bengal & Ors. … Respondents

O R D E R

Petitioner, who claims to be a public spirited person from the  

State of West Bengal and a member of the All India Legal Aid Forum,  

which is an organisation stated to be working for  upliftment  of  the  

downtrodden, has filed the present Public Interest Litigation claiming  

the following relief:

a) allow  this  writ  petition  and  appoint  a  committee  functioning  under  direct  supervision of the court to scrutinize all  the  cases  of  discretionary  allotments  after  due  notice  to  the  allottees  and  based  upon  this  committee’s  report  issue  a  writ  of  and/or  direction  in  the  nature  of  mandamus  quashing  all  the  allotments of Government lands in Salt  Lake  City  made  unconstitutionally,  illegally,  arbitrarily,  whimsically,  capriciously with mala fide motive and in  clandestine  manner  in  colourable  and

arrogant  exercise  of  so-called  “Discretionary  Power”  by  the  respondent; and

b) pass  an  order  directing  the  Calcutta  High Court  to send the case record of  CO No.7553(W)  of  1986,  Bidhannagar  (Salt  Lake)  Welfare  Association  vs.  State  of  West  Bengal  to  furnish  the  same to this Hon’ble Court with notice to  the  petitioner  therein  and  to  hear  and  dispose of the said CO No.7553(W) of  1986 on its merit after setting aside the  order dated 2.9.2003.

c) direct the respondents herein to produce  the  Master  Plan  as  originally  framed  from  the  original  records  of  the  Salt  Lake City.

d) impose  exemplary  damages  of  substantially  high  amount  on  the  respondent No.2 to 6 to set a deterrent  example  and  also  to  compensate  the  public exchequer for the loss caused to  the  general  public  for  reasons  of  discretionary allotment of valuable plots  by  the  Respondents  to  suit  their  personal,  political,  nepotistic  and  financial ends; and

e) pass any other order further order/s as  this  Hon’ble  Court  may  deem  fit  and  proper.”

Above  prayers  are  claimed  on  the  averment  that  even  after  

pronouncement of judgment of this Court in Dipak K. Ghosh v. State  

of West Bengal [(2006) 3 SCC 765], there has been violation of the  

original  Master  Plan  of  the  Salt  Lake  City  against  which  several  

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demonstrations were taken out. The petitioner also submits that the  

issues raised in Writ Petition No. 7553 filed in the Calcutta High Court  

have not been settled by that Court  or even by this Court.   In his  

submissions, these issues require consideration being questions of  

great importance.

According to the petitioner, the Salt Lake City was the result of  

dream of the late Chief Minister Dr. B.C. Roy of establishing a new  

township for the lower and middle income groups on the eastern side  

of Calcutta (now Kolkata) and the land to be used for that purpose  

was the reclaimed land of the Salt Lake. In the year 1967, a Master  

Plan  was  prepared  under  the  Government  instructions  and  the  

Government was expected to develop the area in accordance with  

that Master Plan which had, inter alia, made the following provisions:

“a) 60%  plots  are  earmarked  as  residential  plots.

b) Separate drainage and sewerage system. c) Open space to the tune of 12%

d) Location of commercial plots in one zone. e) Location of few shop allowable plots meant  

to  cater  to  the  local  needs  of  each  residential plots.

f) Roads on different types. g) Open space and other amenities such as  

Park.

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h) Separate area to reserve for co-operative  or different organisations like CMDA Union  Government  Departments,  Administrative  building  local  centres,  play  ground,  education  institutions  and  also  suitable  allocation of Parks in each block.”

The  development  scheme  contained  various  restrictions  

regarding  user  of  plots,  construction  of  buildings,  transfer  and/or  

partition of plots and buildings.

The  West  Bengal  Government  Township  (Extension  of  Civic  

Amenities)  Ordinance,  1975,  was  promulgated  to  provide  for  an  

extension of civic amenities of Government Township in West Bengal  

and for the matters connected therewith and incidental thereto. This  

Ordinance was replaced by the West Bengal Government Township  

(Extension of Civic Amenities) Act,  1975 (hereinafter referred to as  

‘the Act’). Section 2(b) of the Act enumerated different civic amenities  

like  drainage,  sewerage,  sanitation,  roads,  maintenance,  public  

health, parks etc. Till  about 1977, according to the petitioner, there  

was great transparency in functioning of the Administrator, appointed  

under Section 4 of the Act, who was responsible for implementation  

of the provisions of the Act and except 500 plots, out of nearly 6000  

plots, rest have been distributed.

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It  is  alleged that  the Chief  Minister’s  discretionary quota was  

created by unlawful and confidential  executive orders without  even  

informing the Cabinet and illegally usurping the statutory powers of  

the Administrator. Further that the State Government formed a Salt  

Lake  Advisory  Committee  which  started  distributing  the  plots  

clandestinely.  Certain  deviations  were  also  made from the  Master  

Plan. The Government started carving out new residential plots from  

the land originally earmarked for civic amenities, ecological balance,  

maintenance, public facilities etc. in violation of the approved Master  

Plan. Sometime in the year 1985, in view of the serious public protest,  

the  Government  dissolved  the  Salt  Lake  Advisory  Committee  and  

amended the Act by West Bengal Government Township (Extension  

of  Civic  Amenities)  (Amendment)  Act,  1985  (for  short,  the  ‘1985  

Amendment  Act’).  The  amendment  also  validated  the  allotments  

which had been made since October 1, 1976.

As  already  noticed,  Writ  Petition  No.7553  of  1986  was  filed  

before the Calcutta High Court praying for issuance of an appropriate  

direction to the authorities not to deviate from the Master Plan and to  

declare the 1985 Amendment  Act as  ultra vires.   Still  another writ  

petition being Writ  Petition No.17306 of 1997 was filed before that  

Court challenging the exercise of discretionary powers by the Chief  

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Minister  in  regard  to  allotment  of  plots  in  the  Salt  Lake  City.  

Challenge was also raised against the deviation from the Master Plan  

and various instances of the same were given in that writ petition. The  

writ petition, particularly, referred to Sectors 1, 2 and 3 of the City. As  

alleged by the petitioner herein, Writ Petition No. 7553 of 1986 came  

to be dismissed for default without deciding the case on merits vide  

order dated September 2, 2003.

         Writ Petition No. 17306 of 1997 also came to be dismissed by  

the  judgment  of  the  Calcutta  High  Court  dated  February  5,  1999,  

primarily,  on  the  ground  that  there  was  non-joinder  of  necessary  

parties,  i.e.  the  persons to  whom the allotments  have been made  

under the discretionary quota and whose names had been disclosed  

in the reply affidavit filed in those proceedings have not been made  

parties in that petition.  The learned Single Judge further observed  

that an interim order dated June 11, 1987 passed by another Bench  

of that Court in Writ Petition No.7553 of 1986 had allowed the Chief  

Minister to make allotment of plots from his discretionary quota and  

that  order  was  still  subsisting.   As  that  order  was  passed  in  

independent  proceedings no directions in  that  regard were  issued.  

But, however, the Court cautioned the Chief Minister  that discretion  

in  allotment  of  plots  should  be  exercised  in  accordance  with  the  

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criteria stated by the Supreme Court in the case of Common Cause,  

A Registered Society  v. Union of India [(1996) 6 SCC 530].

The petitioner in that case filed a Special Leave Petition before  

this Court wherein leave was granted and it came to be registered as  

Civil  Appeal No.6707 of 1999. This Court,  vide its  judgment dated  

November 19, 2004 titled as Tarak Singh v. Jyoti Basu [(2005) 1 SCC  

201], dismissed this Civil  Appeal along with one writ petition, being  

Writ Petition No. 216 of 1999 titled as  Dipak K. Ghosh v.  State of  

West Bengal, which was directly filed as a Public Interest Litigation  

before  this  Court  raising  similar  challenges.  In  these  proceedings,  

vide  order  dated  November  13,  2003,  this  Court  allowed  the  

impleadment of Respondent No. 24 (to be read as Respondent No. 8  

vide  order  of  that  Bench  dated  December  17,  2004),  Mr.  B.P.  

Banerjee,  former Judge of the Calcutta High Court and passed the  

final  order/judgment  dated  November  19,  2004  quashing  the  

allotment made in favour of that Respondent despite the fact that he  

had raised construction on that plot. This writ petition was dismissed  

qua all the respondents except against Respondent No. 24. The writ  

petition  was allowed  qua that  Respondent  on the  ground that  the  

learned Judge had compromised his  divine duty  with  his  personal  

interest  during the hearing of  Writ  Petition No.7553 of  1986.   It  is  

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further  the  allegation  of  the  petitioner  that  the  plots  from  the  

discretionary  quota  were  allotted  on  political  and  financial  

consideration and in  lieu of  favourable  services rendered and that  

there  was  a  complete  abuse  of  the  discretionary  quota  by  the  

authorities  concerned  and  even  the  change  in  land  use  from  

commercial to residential and vice-versa on the will  of the allottees  

was in arbitrary manner.  

Petitioner  further  prays  that  this  Court  should  appoint  a  

Committee to scrutinize all those cases where allotments have been  

made from the discretionary quota and quash all the allotments made  

thereunder. The challenge of the petitioner is primarily based upon  

the ground that discretionary quota for distribution of plots in the Salt  

Lake City was arbitrary,  illegal and in violation of the Master Plan.  

Resultantly, it was in violation of equality and right to life as enshrined  

in Articles 14 and 21 of the Constitution of India. Further, by allotting  

lands  earmarked  for  civic  amenities,  the  State  has  violated  its  

promise extended in the Master Plan on the basis of which people  

have purchased plots in the scheme and, as such, these allotments  

tantamount  to  undue  enrichment  of  the  State  at  the  cost  of  the  

allottees and, therefore,  such allotments are in violation of  the law  

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stated  by  the  Supreme  Court  in  the  case  of  Common  Cause,  A  

Registered Society (supra).

Before we proceed to discuss the merits of the challenge made  

by  the  petitioner  to  the  discretionary  allotment,  we  would  like  to  

complete the factual matrix of the case by referring to the facts which  

appeared from the record and/or the reported judgments dealing with  

the same subject matter.  As already noticed, Civil Appeal No. 6707  

of 1999 was heard along with Writ Petition No. 216 of 1999 by this  

Court. During the pendency of these proceedings, Mr. B.P. Banerjee  

was ordered to be impleaded as Respondent No. 24 and thereafter  

he  appeared  before this  Court  and  contested  the  matter.   The  

direction with regard to cancellation of the plot in his favour was finally  

passed by this Court. While allowing the appeal limited to that extent,  

the writ petition as well as the appeal was dismissed against all other  

respondents and the Court held as under:

“20.  It  is  also contended by Mr Ganguli  that  a  large number of Judges of  the High Court  and  the Supreme Court have also been allotted plots  in Salt Lake City under the discretionary quota of  the Chief Minister and it will be unfair to single  out  Respondent  24  for  meting  out  a  different  treatment.  At  the  time  of  hearing  of  this  writ  petition,  we  requested  the  learned  Senior  Counsel to inform us whether any other Judge or  Judges  obtained  the  allotment  order  from  the  

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discretionary  quota  of  the  Chief  Minister  by  compromising his judicial duties, we would also  proceed against such allottee. He, however, was  unable to receive any instructions in this behalf. It  is trite, unequals cannot be treated equally.

24.  In  the  backdrop  of  the  facts  and  circumstances, as recited above, we are of the  view that  the  conduct  of  the  learned  Judge  is  beyond condonable limits. We are aware that the  order, we propose to pass, no doubt is painful,  but  we have to  perform a painful  duty to  instil  public  confidence  in  the  judiciary.  It  is  a  case  where  a  private  interest  is  pitted  against  the  public interest. It is now a well-settled principle of  law that in such cases the latter must prevail over  the former. Consequently, the order dated 24-7- 1987 passed by the Chief Minister and the formal  allotment  order  dated  16-10-1987  allotting  Plot  No.  FD-429  measuring  4  cottahs  in  Salt  Lake  City  in  favour  of  Respondent  24  Justice  B.P.  Banerjee  are  hereby  quashed  and  cancelled.  The plot shall stand vested with the Government.

27. The net result is that Writ Petition No. 216 of  1999 against  Respondent  24 is allowed and is  dismissed qua other respondents. CA No. 6707  of 1999 is dismissed. Rule is discharged.

28. We clarify that dismissal of the writ  petition  against  other  respondents  should  not  be  misunderstood as approval of the policy decision  of the Government with regard to the allotment of  land by the Chief Minister from his discretionary  quota.”

As the directions contained in the case of  Tarak Singh (Supra)  

were not being properly implemented by the State Government and  

the  concerned authorities,  Mr.  Dipak Ghosh,  the petitioner  in  Writ  

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Petition  No.  216  of  1999,  filed  another  application  for  strict  

implementation and compliance of the above order passed by this  

Court.  In those proceedings, applications were also filed by Mr. B.P.  

Banerjee stating that the order of the Supreme Court in Tarak Singh’s  

case  (supra)  is  a  nullity,  void  and  non  est against  him.   In  its  

judgment in the case of  Dipak Ghosh (supra), this Court dismissed  

the applications filed by Mr. B.P. Banerjee and directed that the order  

of the Court in  Tarak Singh’s case (supra) be complied with.  The  

Court also specifically directed that no application filed by either of  

the parties  in  this  case shall  be  accepted by the Registry  without  

leave of the Court.  Since then, no application appears to have been  

filed in either of these proceedings.

The above prolonged history of this case clearly shows that in  

proceedings before the Calcutta High Court, the merit or otherwise of  

the  discretionary  allotments  made  by  the  Chief  Minister  was  not  

decided in accordance with law.  One writ  petition, being W.P. No.  

7553 of  1986,  came to  be  dismissed  for  default  vide  order  dated  

September  2,  2003  which  order  attained  finality  as  no  further  

proceedings were taken by the petitioners therein.  Thereafter, WP  

No. 17306 of 1997 came to be dismissed, primarily, on the ground of  

non-joinder  of  necessary  parties  and  the  allotments  under  the  

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discretionary quota of the Chief Minister were not set aside.  On the  

contrary, while referring to the order dated June 11, 1987 of the other  

Bench in Writ Petition No. 7553 of 1986 that was still  subsisting, it  

was  observed  that  the  Chief  Minister  was  permitted  to  make  

allotments from the discretionary quota, however, in accordance with  

the judgment of the Supreme Court in the case of Common Cause, A  

Registered Society (supra).  A Civil Appeal No. 6707 of 1999 against  

that judgment also came to be dismissed by this Court along with Writ  

Petition No.216 of 1999 which had also questioned the discretionary  

allotments.   In other words, the allotment of large number of plots in  

Salt Lake City, Kolkata had been the subject matter of different writ  

petitions and/or appeal before the Calcutta High Court as well as this  

Court and for one reason or the other the allotments in favour of the  

private  parties  had not  been set  aside,  though there  were  doubts  

raised by the Calcutta  High Court  as well  as this  Court  regarding  

allotments  under  the discretionary quota  of  Chief  Minister  and the  

manner in which they were made.  However, as all these judgments  

have attained finality, they cannot be permitted to be agitated over  

and over again including in the present writ petition.  The principles of  

finality as well as fairness demand that there should be an end to the  

litigation and it is in the interest of public that the issues settled by the  

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judgments of courts, including this Court, which have attained finality  

should not be permitted to be re-agitated all over again,  interest rei   

publicæ ut sit finis litium.   

We are unable to appreciate that para 28 of the judgment of this  

Court in the case of  Tarak Singh (supra) leaves the questions open  

for a fresh adjudication.  All that the Bench has said in that case was  

that  the  Court  had  not  approved  the  policy  decision  of  the  

Government  with regard to allotment  of  land by the Chief  Minister  

from  his  discretionary  quota,  but  at  the  same  time  what  is  of  

significance is that none of the allotments made except that in favour  

of Respondent No. 24, was set aside by the Court. The Court then  

clarified that it  had not granted approval to the action of the State  

Government  of  making  discretionary  allotments  in  the  manner  in  

which they had been made.  This is further substantiated by the fact  

that  allotment in favour of  Respondent No. 24 was specifically  set  

aside.  Thus, the arguments advanced on behalf of the petitioner that  

para  28  of  that  judgment  leaves  all  issues  open  for  future  

determination in this proceeding or like cases, is legally unsustainable  

and misconceived.  

The  jurisdiction  of  this  Court,  in  a  Public  Interest  Litigation,  

cannot be pressed into service where the matters have already been  

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completely and effectively adjudicated upon not only in the individual  

petitions but even in the writ petitions raising larger question as was  

raised in Writ Petition No. 216 of 1999 before this Court.

Another important aspect of this case which has persuaded us  

not to interfere with settled rights and grant the prayers in this Public  

Interest Litigation is that an affidavit on behalf of the State of West  

Bengal has been filed recently on December 3, 2010 revealing certain  

pertinent  facts  for  proper  adjudication  of  this  case.   The  affidavit,  

sworn  by  Mr.  Abanindranath  Palodhi,  Joint  Secretary,  Urban  

Development Department,  Government of West Bengal,  has stated  

that    guidelines  for  allotment  of  both  individual  and  co-operative  

residential plots in Salt Lake were issued by a Government order on  

December 7, 1999 on the strength of the Cabinet decision taken on  

November 10, 1999.  The then Chief Minister, Late Mr. Jyoti Basu,  

had already allotted 276 plots out of 290 plots from his discretionary  

quota which were available at that point of time and presently only 14  

plots are left in that discretionary quota.  This affidavit further states  

as under:

“Subsequently,  on  7th December,  1999  four  orders were issued with regard to  allotment of  residential  plots,  non-residential  plots  for  educational institutions and for allotment of plots  for  cultural,  institutional,  industrial,  commercial  

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etc.  purposes   at  Salt  Lake.   All  these  notifications  required  advertisement  in  newspapers  and  invitation  of  application.  But  what  is  significant  is  that  no  guidelines  had in  fact been framed for allotment of plots from the  discretionary quota of the  Chief Minister,  as a  result of which all the 14 plots belonging to the  discretionary quota,  which were in existence in  February,  1999,  still  continue  to  remain  unallotted.   As a  result,  these 14 plots  will  no  more  be  treated  as  part  of  the  discretionary  quota.

(Emphasis supplied by us)

From the above specific averments made in the affidavit, it is  

clear that there are very few plots presently left for allotment under  

the  discretionary  quota.   The  State  Government  has  taken  a  

conscious  decision  not  to  make  further  allotments  under  the  

discretionary quota even  qua those plots. As far as already allotted  

plots are concerned, the rights of the parties appear to have been  

settled and attained finality, as in none of the writ petitions/appeals  

referred above any of these allotments was set aside by the Courts of  

competent jurisdiction.  The petitioners in those cases, in fact, did not  

even care to take further proceedings to have the matters adjudicated  

before  the  higher  Courts  and  in  accordance  with  law.   In  these  

circumstances it will be a futile exercise of jurisdiction of this Court to  

reopen the whole controversy once again. The questions raised in the  

present petition have become merely academic as the rights of the  

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parties have been finally settled and further the parties have acted  

thereupon to their respective prejudices.  Without intending to state  

any law in the peculiar facts and circumstances of the present case  

we find no merit in this Public Interest Litigation which is dismissed.  

However, there will be no order as to costs.

….………….............................CJI.                 (S.H. Kapadia)

…….………….............................J.  (K.S. Panicker Radhakrishnan)

...….………….............................J.  (Swatanter Kumar)

New Delhi February 3,  2011.

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