Holding

The Supreme Court held that the matters have been finally adjudicated and the PIL is dismissed.

Summary

The petitioner, Joydeep Mukharjee, filed a public interest litigation challenging the allotment of government lands in Salt Lake City, Kolkata, alleging that the Chief Minister's use of a discretionary quota was arbitrary, illegal, and violated the Master Plan as well as Articles 14 and 21 of the Constitution. The matter had been the subject of several earlier writ petitions and appeals before the Calcutta High Court and this Court, wherein only one allotment (to Justice B.P. Banerjee) was set aside while the rest were left untouched. The Supreme Court observed that all those earlier judgments have attained finality and that the remaining 14 plots in the discretionary quota are now exhausted, with the State having decided not to make further allotments. Consequently, the Court held that the issues raised in the present PIL are merely academic and that re‑litigating settled rights would contravene the principles of finality and fairness. The petition was therefore dismissed without any order as to costs.

Issues considered

The legality and constitutionality of the Chief Minister's discretionary quota for allotting plots in Salt Lake City.
Whether the 1985 Amendment Act validating such allotments is ultra vires.
Whether the Court can entertain a fresh PIL when prior judgments on the same subject have attained finality.
Whether the Court should direct a committee to scrutinise past discretionary allotments.
Whether the alleged violations of the Master Plan amount to infringement of Articles 14 and 21.

Legislation cited

Subjects

public interest litigationland allotmentdiscretionary quotamaster planfinality of judgmentsequalityright to lifeurban developmentadministrative lawWest Bengal

Judgment

_[2011] 2 $.C.R. 493

JOYDEEP MUKHARJEE A
v \.
STATE OF WEST. BENGAL & ORS.
(Writ Petition (Civil) No. 43 of 2006)
FEBRUARY 03, 2011
B.
[S.H. KAPADIA, CJI., K.S. RADHAKRISHNAN AND
SWATANTER KUMAR, JJ.]

Constitution of India, 1950-Articles 226 and 32- Public
Interest Litigation (PIL) - Allotment of Governmeqt lands in C
Salt Lake City, Kolkata - PIL alleging that the allotment made
by the Chief Minister from his discretionary quota was
aibitrary, illegal and in violation of the Master Plan --Held:
Different writ petitions and/or appeal were filed before tfle High
Court as well as Supreme Court with regard to allotment of D
large number of plots in Salt Lake City - Though doubts were
raised by the High Court as well as Supreme Court regarding
the said allotments, the allotments in favour of the private
parties were not set aside, for one reason or the other -
-- However, as all these judgments have attained finality, they E
cannot be permitted to be agitated over and over again
including in the instant writ petition - Principles of finality as ·
well as fairness demand that there should be an end to the
litigation - Recently, guidelines have been issued for
allotment of both individual and co-operative residential plots F
in Salt Lake - At present, only 14 plots are left for allotment
under the discretionary quota and the State Government has
taken a conscious decision not to make further allotments -
Questions ,raised have become merely academic as rights of
the parties have been finally settled and have attained finality, G
and the parties have acted thereupon to their respective
prejudices - Thus, PIL dismissed - Urban Development -
Judgment/Order ""'." Maxims - Interest rei publicae ut sit finis
litium.
493 H
494 SL!PREME COURT REPORTS [2011] 2 S.C.R.

A Dipak K. Ghosh v State of West Bengal (2006) 3 SCC
765; A Registered Society v. Union of India (1996) 6 SCC
530; Tarak Singh v. Jyoti Basu (2005) 1 SCC 201 - referred
to.
Case Law Reference:
B
(2006) 3 sec 765 Referred to Para 2, 9, 12
(1996) 6 sec 530 Referred to Para 8, 10, 13
(2005) 1 sec 201 Referred to Para 9, 12, 14
c
CIVIL ORIGINAL JURISDICTION : Writ Petition Civil No.
43 of 2006.

Under Article 32 of the Constitution of India.

D S.K. Bhattacharya, Niraj Boby Paonam for the Petitioner.

T.R. Andhyarujina, K.K. Venugopal, Tara Chandra Sharma,
A. Subhashini, Pranab Kumar Mullick, Kumar Mihir, Sanjeev
Kumar (for Khaitan & Co.), Bijan Kumar Ghosh, Manjit Singh,
E Kamal Mohan Gupta, H.K. Puri, P. Puri, V.M. Chauhan, A.K.S.
Jain, A.D.N. Rao for the Respondents.

The following order of the Court was delivered

ORDER
F
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
G 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
H committee's report issue a writ of and/or direction
496 SUPREME COURT REPORTS [2011) 2 S.C.R.

A 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.
B
According to the petitioner, the Salt Lake City was the
resl!lt 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
C 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:
D "a) 60% plots are earmarked as residential plots.
b) Separate drainage and sewerage system.
c) Open space to the tune of 12%
E 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.
F
g) Open space and other amenities such as Park.
h) Separate area to reserve for co-operative or
different organisations like CMDA Union
Government Departments, Administrative building
G
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/
H
f
JOYDEEP MUKHARJEE v. STATE OF WEST 497
BENGAL & ORS.

or partition of plots and buildings. A
I
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 8 ·
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 C
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.
D
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 E
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 F
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 G
also validated the allotments which had been made since
. October 1, 1976.

As already noticed, Writ Petition No.7553of1986 was filed
before the Calcutta High Court praying for issuance of an
appropriate direction to the authorities not to deviate from the H
498 SUPREME COURT REPORTS [2011] 2 S.C.R.

A 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 Minister in regard to allotment
of plots in the Salt Lake City. Challenge was also raised against
. B the deviation from th~ 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. 7553of1986
came to be dismissed for default without deciding the case on
c 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
D 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
E in Writ Petition No.7553of1986 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
F that discretion in allotment of plots should be exercised in
accordance with the criteria stated by the Supreme Court in the
case of Common Cause, A Registered Society v. Union of
India ((1996) 6 sec 530].

G 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
H . along with one writ petition, being Writ Petition No. 216of1999
JOYDEEP MUKHARJEE v. STATE OF WEST 499
BENGAL & ORS.
titled as Dipak K. Ghosh v. State of West Bengal, which was A
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 Decembe.r 17, 2004), Mr. B.P. B
I Banerjee, former Judge of the Calcutta High Court and passed
the final order~udgment 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 c
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 further the
allegation of the petitioner that the plots from the discretionary
0
quota were allotted on political and financ;ial 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. E

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 F
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 G
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 stated by. H
500 SUPREME COURT REPORTS [2011] 2 S.C.R.

A 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
8 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
C 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
D 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
E 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
F any other Judge or Judges obtained the allotment order
from the 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.
G
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
H
JOYDEEP MUKHARJEE v. STATE OF WEST 501
BENGAL & ORS.
we have to perform a painful duty to instil public confidence A
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 B
. 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 C
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 D
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."
E
As th~ directions contained in the case of Tarak 1Singh
(Supra) were not being properly implemented by the State
Government and the concerned authorities, Mr. Dipak Ghosh,
. the petitioner in Writ Petition No. 216 of 1999, filed another
application for strict implementation and compliance of the F
above order passed by this Court. In those proceedings,
applications were also flied 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 G
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
H
502 SUPREME COURT REPORTS (2011] 2 S.C.R.

A 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
8 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
C to be dismissed, primarily, on the ground of non-joinder of
necessary parties and the allotments under the 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. 7553of1986 that was still subsisting,
D 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
E 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
F 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
G 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 judgments of
H
.. 'I

'JOYDEEP MUKHARJEE v. STATE OF WEST .. 503 .
BENGAL & ORS.
ourts; including this Court, which have attained finality should .· A ·
ot be permitted to be re-agitated all over agairi, interest rei ·.
ublicre ut sit finis titium. ·

We are u'nabie to ·appreciate that para 28 of the judgment
I this Court in the case of Tarak Singh (supra) leaves the . B
(Uestions open for a fresh adjudication. All that the Bench has
aid iri that case was that the Court had .not approved the policy
~cision of the Government with regard to allotment of land by
he Chief Minister from his discretionary quota, but at the same
ime what is of significance is that none of the allotments made ·
lXcept that in favour of Respondent No'. 24, was set aside by C
he Court. The :Co'urt. then clarified that it had not granted
1pproval to· the action of the State Government of making
liscretionary allotments in the manner in which they had been '
I
made. This is further substantiated by the fact that allotment in '
- 4 i '
favour of Respondent No. 24 was specifically set aside. Thus, D .
~e arguments advanced on behalf of the petitioner that para I:;

1B of that judgment leaves all issues open for future
determination in this proceeding or like cases, is legally
unsustainable and misconceived: ' ··-· .
......... , . , . . . E·:
The jurisdiction of this Court, in a Public Interest Litigation,
cannot be pressed into service where the matters have already .
been completely and effectiv_ely adju~icated upon not only in the
individ_uc:l µeiitions but 'even in the writ petitions raising larger
question as was raised in Writ Petition No. 216 of 1999 before
!his Court. 1 ·- ' · ·
·.i• •' . ! •

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 G
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 H
,r

-------"
.· ..
504 SUPR!:ME COURT REPORTS [2011) 2 S.C.R.

A 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
8 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
c allotment of plots for cultural, institutional, industrial,
commercial 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
D 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 cantinue to remain unal/otted. As a result,
these 14 plots will no more be treated as part of the .
E 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
F · 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
G 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
H circumstances it will be a futile exercise of jurisdiction of this
JOYDEEP MUKHARJEE v. STATE. OF WEST 505
BENGAL & ORS.
Court to reopen the whole controversy once again\ The A
questions raised in the present petition have become merely
academic as the rights of the 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 B
in this Public Interest Litigation which is dismissed. However,
there will be no order as to costs.

N.J. Writ petition dismissed.