A case involving a land dispute between Mala Anand, the wife of the Chief Justice of India, and the Madhya Pradesh government raises questions about the conduct of the judiciary although the Chief Justice himself is not directly involved in the matter.V. VENKATESAN in Gwalior and New Delhi
"If a Judge decides wrongly out of motives of self-promotion, he is no less corrupt than a Judge who decides wrongly out of motives of financial gain. In either case, the incumbent of the office cannot be said to be worthy of being a Judge. His conduc t affects the credibility of the Institution. Eternal vigilance by the Judges is, therefore, necessary. There must be proper balancing of judicial independence on the one hand and the behaviour and conduct of Judges who operate the justice delivery syste m on the other."- Chief Justice of India, A.S. Anand.
(An excerpt from the inaugural address of Justice Anand delivered at the Golden Jubilee celebrations of the Rajasthan High Court on August 29, 1999 at Jodhpur.)
THE credibility of the judiciary as an institution has been brought to the foreground by three rulings from the Supreme Court which have seemingly given to the higher judiciary the exclusive power to appoint judges, and a phase of activism from the highe r judiciary which has made it an effective watchdog of political life. Judicial accountability is a much-talked about matter both within the judiciary and the government. While the Supreme Court has come out with an ethical code called the 'Restatement o f Values of Judicial Life', and promised an in-house machinery to punish errant judges, the National Democratic Alliance (NDA)government has promised to set up a National Judicial Commission - to appoint, remove, and transfer judges. Ironically, both the se well-intended efforts have thus far been non-starters.
In this environment of institutional passivity, individual efforts to enforce certain norms of judicial accountability assume greater significance than before. But anyone who seeks to shed light on the behaviour and conduct of judges is always deterred b y the judiciary's latent power to penalise under the contempt of court provisions. In the past, those who have chosen to challenge the conduct of judges in particular cases have been made to pay a price: either earning a reprimand or being compelled to a pologise on pain of more serious punishment.
In this context, it defies explanation why the judiciary as well as the mainstream media have chosen to ignore a document-backed controversy relating to close relatives of the Chief Justice of India, Justice A.S. Anand, raised by the occasional investiga tive journal, Kalchakra, in February this year. (Readers may visit its Web site, www.kalchakra.org for details.)
Kalchakra's investigations into Justice Anand's family property interests have a background. It had, in its December 16-31, 1999 issue, published strong allegations against the former Chief Justice of India, Justice J.S. Verma, and his colleague o n the Bench, Justice S.C. Sen, in relation to the hawala probe. Edited by Vineet Narain, whose public interest petition led to the hawala prosecutions being launched in the first place, Kalchakra carried in this issue an affidavit by one Dr. Jolly Bansal claiming to have "managed" Justice Verma and Justice Sen, to ensure the "unceremonious burial of the Jain hawala case". The article claimed that Bansal was the "gentleman" who had made the approach to the three judges hearing the case - Justices Verma, Sen and S.P. Bharucha - which Verma had revealed in open court on July 14, 1997 without naming names. Despite demands for initiating action against the unnamed "gentleman" under the court's contempt powers, Verma refrained from revealing his iden tity and this led to some public misgivings.
The Supreme Court Bar Association (SCBA) filed a contempt case against Narain, Bansal, and the publisher of Kalchakra, Rajneesh Kapur. The SCBA said that the statements and the affidavit published in the issue established a "deliberate intention t o denigrate" the judges. It alleged that the contents of the article "obstructed the administration of justice by attributing dishonesty and corruption" to Justices Verma and Sen. During the first hearing of the case on March 3, Justices S.B. Majudmar, G .B. Pattanaik, and S. Rajendra Babu, held that they would watch the conduct of the respondents for the next four weeks, before initiating any action.
On April 7, when the same judges heard the case, they agreed that the article tried to malign the judges who constituted the Bench at that time. They held it prima facie contemptuous. However, "on the facts and circumstances of the case", and als o "keeping in view the fact that the Supreme Court and its constitutional functionaries stand on a much higher footing and would not be affected or deterred by such prima facie misconceived observations made with a view to attracting public attent ion," the judges decided not to "honour" the respondents, Narain and others, by issuing contempt notices against them.
The court told SCBA counsel and senior advocate K.K. Venugopal that the respondents did not write anything on Verma and Sen during the four weeks after the first hearing on March 3. In view of this restraint exercised by the respondents, the judges were inclined to close proceedings. The judges expressed the hope that Narain and others would be more careful and discreet in their approach in future.
Sources in the SCBA claim they were disappointed with the Supreme Court's move not to initiate contempt proceedings against Narain. Kalchakra's allegations against Chief Justice Anand's relatives appeared in its February issue, thus indicating tha t Narain was neither restrained nor apologetic about his salvos against Supreme Court judges. When the February issue was brought to their notice, the judges who heard the contempt case on April 7 said that they were familiar with its contents, but under lined that they were concerned only with the articles on Verma and Sen. A senior advocate who was closely watching these proceedings said: "Judges act in concert; they decide what is in the institution's interest." Jurists concerned with judicial account ability are not convinced that the court is justified in ignoring the Kalchakra story.
CHIEF Justice Anand's wife, Mala Anand, belongs to Gwalior in Madhya Pradesh. Her father, Major-General Yadunath Singh, was an officer in the Indian army, and her grandfather, General Girdhari Singh, was an officer in the army of the Gwalior princely sta te. They had ancestral land in a village, Piprod, which is in Guna district, bordering Gwalior.
In 1951, Yadunath Singh and Girdhari Singh were allotted 47.847 hectares of government land in Piprod by Naib Tehsildar (Colonisation), a locally designated revenue officer for the purpose, and this was subsequently approved and endorsed by the Collector , Guna district. However, this allotment of land through a "patta" (land title) carried certain conditions. One of the conditions was that the holder was bound to cultivate 50 per cent of the land starting within one year from the date of patta (November 27, 1951). On violation of this condition, the land could be confiscated by the Tehsildar.
Under the prevalent Act - the United States of Gwalior, Indore and Malwa (Madhya Bharat) Land Revenue and Tenancy Act, 1950 - unoccupied land in any village could be allotted only for agricultural purposes, by a revenue officer, to a bona fide agr iculturist who did not hold land in excess of 50 acres. Though more than 50 acres of land was granted on pattas to Yadunath Singh and Girdhari Singh, they were accorded the rights of Bhumiswami (landlord) in the revenue records, on the allotted lands.
Under 176 (1) of the Madhya Pradesh Land Revenue Code, 1959, if a landlord either himself or through any other person ceases to cultivate his land for two years, fails to pay land revenue, or leaves the village in which he usually resides, then the villa ge Tehsildar concerned can, after holding such inquiry as the circumstances warrant, take possession of the land.
It is not clear whether Yadunath Singh and Girdhari Singh cultivated the land allotted to them. Both Yadunath Singh and his father did not receive the pattas personally; they received it through a distant relative at Piprod, Brijendra Singh, who claimed to have cultivated the land allotted to them. But there is no record of the crops grown by Brijendra Singh, nor is there any proof of Yadunath Singh and his father paying land revenue for the lands allotted to them. The land was described as uncultivated in the land records between 1951 and 1976.
After the death of Girdhari Singh and Yadunath Singh, in 1956 and 1960 respectively, their sole heir, Sushila Singh, mother of Mala Anand, was asked by the village Tehsildar to pay the land revenue. When she failed to do so, the State Government took pos session of the land on July 25, 1973, under the provisions of the MPLRC. Sushila Singh was entitled under the MPLRC to seek within three years of the date of reversion to the government the return of the land. But she did not do so.
After taking over the land, the government developed an agricultural farm there, to serve as a model farm for the area. In 1983, the government transferred the bulk of the land's title in favour of the Madhya Pradesh Seed and Farm Development Corporation (MPSFDC), which had begun functioning in 1982.
Sushila Singh and Mala Anand waited till February 1993 to file a suit in the Chanderi civil court, Guna, to challenge the government's 1973 decision to confiscate their land. Their decision came 15 months after A.S. Anand was elevated to the Supreme Cour t as a Judge.
Mala Anand and her mother alleged, in their suit, that the Tehsildar did not hold a proper enquiry under the MPLRC and give Sushila Singh an opportunity to present her case. They alleged that she was not given any notice, and that she came to know about this case only on March 25, 1989, when she discovered that the government had taken over her land. Mala Anand claimed that she visited Maholi (the tehsil in Guna, where Piprod is located) in March 1989, after Brijendra Singh, who had been looking after t he family lands there, stopped sending them a share of the revenue from the land. Mala Anand then sent notices to the administration as well as to the MPSFDC to return the land to her. The MPSFDC replied that the government held the title to the land in question, which had been developed for various kinds of public functions.
According to informed sources, the case file now preserved at the Chanderi civil court shows that the revenue official had sent the relevant notice to Sushila Singh in 1973 through a registered letter, and given her an opportunity to represent her case b efore actually taking over the land. Kalchakra has in its possession a copy of the acknowledgement of a registered letter as well as a hand-written reply from Sushila Singh requesting the revenue official to grant some more time for the payment of revenue.
In this handwritten communication, Sushila Singh acknowledges the letter sent by the revenue official and also seeks time till December 1972. She writes that she is trying to find a suitable buyer for her lands in Chanderi and blames Brijendra Singh for not sending her money after her husband's death. She also pleads her inability to pay a visit earlier than December 1972 because of ill-health. The letter was written from Morar, a suburb of Gwalior, where army personnel live.
Although a copy of the notice sent to Sushila Singh by the revenue official is missing from the case file, reliable sources in the Guna administration have confirmed to Frontline that the documents in Kalchakra's possession are genuine, wit h the originals in the case file at Chanderi. These sources point out that the postal receipt in the form of the registered post acknowledgement card was considered sufficient.
However, the survival of the other two documents, namely the registered post acknowledgement signed by Sushila Singh, and her hand-written letter to the revenue official, is significant. The civil court, Chanderi, ignored these documents though they were brought to its notice during the hearing.Kalchakra's
The registered letter from the Tehsildar was delivered to Sushila Singh on September 7, 1972. She had written the letter requesting more time on September 9, 1972. On March 1, 1973, the Tehsildar had noted in his records that the land revenue had not bee n deposited till then by Sushila Singh. The title to the land finally reverted to the government on July 25, 1973, after Mala Anand and her mother had been given adequate time to pay the arrears in revenue. The order issued by the Collector, Guna in 1973 taking over the land also recorded that the land was uncultivated and abandoned.
Both the MPSFDC and the State government separately challenged the suit filed by Mala Anand . On an application by the Madhya Pradesh government and the MPSFDC to oust the jurisdiction of the civil court in the matter, the Madhya Pradesh High Court rejec ted their view that only the land revenue courts had the jurisdiction to hear the disputes under the MPLRC. On January 12, 1995, the High Court directed the civil court to expedite the hearing of the suit filed by Mala Anand and her mother, and dispose o f it within six months.
The Chanderi civil court sought to record the statements of Mala Anand and her mother at their residence at 10 Tuglaq Road, New Delhi, the official residence of Justice Anand, instead of in the court room, on November 25, 1995. This became necessary as t he two women pleaded their inability to be examined either in Guna or Gwalior. The court was competent to issue the commission to examine Mala Anand under Order 26, Section 4 (a) of the Civil Procedure Code. This section enables the court to issue a comm ission to examine any person resident beyond the local limits of its jurisdiction. Though the court sought to examine Sushila Singh who was then present at home, she excused herself from being examined, citing health reasons. Justice Anand was not presen t at home when the court examined Mala Anand. However, he received the commission before leaving for his office in the Supreme court.
In her testimony, Mala Anand admitted that she had no knowledge whether the land given to her father and grandfather was granted by a competent officer, or whether Brijendra Singh was duly authorised by her parents to cultivate the land in their possessi on. She also admitted that between 1951 and 1976, some land remained uncultivated, which she could not, however, identify.
On September 17, 1996, the civil court adjudged the 1973 proceedings of the land revenue official in Guna taking over the lands as null and void on the ground of failure to give information to the interested parties, and violation of natural justice - si nce it held that Mala Anand and her mother had not been given a fair hearing. The civil court directed the state government to give an equal amount of alternative land or appropriate monetary compensation to the two women, even though their claim did not go beyond restitution of the confiscated land. The court rejected the plea that the land was not being cultivated, and found no reason to disbelieve Brijendra Singh, who had stated that he had been cultivating the land.
Significantly, the court allowed the MPSFDC to retain the lands allotted to it by the government, even though Mala Anand had claimed them as hers. The court felt that the MPSFDC had spent a considerable amount of money in developing the land and hence sh ould not be deprived of the fruits of its efforts.
Though the MPSFDC had no direct cause to be aggrieved by the civil court's decree, it nevertheless took it in appeal before the Additional District Judge, Guna district, in order to help the State government which was unable to meet the statutory 30 day deadline for appeals. The ADJ dismissed the appeal within 14 months on December 15, 1997. The State government presented the second appeal in the High Court on January 9, 1998. The High Court too rejected the appeal on March 18, 1998. The High Court hel d that there was no other documentary evidence on record to suggest that any valid proceedings had taken place under Section 176 of the MPLRC, to deprive Sushila Singh and her daughter of their lands.
The State government did not submit to the court the crucial evidence of the registered post acknowledgement received from Sushila Singh and the hand-written letter sent by her to the Tehsildar in 1973. These documents remained in the case file at Chande ri, even when appeals against the civil court judgment were being heard in the higher courts. Significantly, none of the appeals filed by the MPSFDC or the State government in the ADC and the High Court against the civil court judgment raised this eviden ce of a circumstantial nature, that due notice had indeed been served on Sushila Singh in 1973. It is alleged that the State government authorities were not serious in pursuing this case and that this helped Mala Anand win the case.
The State Government then presented a Special Leave Petition in the Supreme Court against the High Court's order. The SLP was withdrawn by the State Government and subsequently dismissed by the court on August 18, 1998. The MPSFDC also withdrew its SLP, under pressure from the State government. Kalchakra has alleged that pressure was put on the State government to withdraw the SLP, through a senior bureaucrat by persons close to Anand. But this charge remains unsubstantiated.
Anand took over as Chief Justice of India on October 11, 1998. Mala Anand and her mother, according to government sources, have claimed compensation at the rate of Rs.2,58,372 per hectare. The total compensation thus demanded is Rs.1.24 crore. The State government, however, decided to return the disputed lands to Mala Anand and her mother.
According to informed sources Frontline talked to in Guna, 21 hectares from the original holdings of the family have already been allotted to Mala Anand and her mother. Another 26 hectares has been promised elsewhere within the village boundaries. Mala Anand and her mother have apparently not given their consent to the transfer of this remaining land. According to these sources, they are insisting on cash compensation in lieu of this alternative land.
The State government has thus begun pressuring the MPSFDC to vacate its land, so that it could be returned to Mala Anand and her mother. The process of offering alternative land for the MPSFDC is on, even though it is against the order of the civil court , and the alternative land being offered to the MPSFDC is considered uncultivable. The MPSFDC, being an organisation created by the State government, is in no position to resist the pressure, and has yielded to the government by vacating its land at Pipr od.
As the entire extent of the disputed land is irrigable, it will come under the State's Agricultural Land Ceiling Act, 1960. Under the circumstances, how Mala Anand and her mother can legitimise their holdings of property far in excess of the stipulated c eiling, once it is transferred to them, remains to be seen. Under the Act, a landlord whose family consists of five or less than five members (Mala Anand and her mother may come under this category) is entitled to possess 18 acres of land, if the land is capable of giving two crops, with certain irrigation facilities; 27 acres, if the land is capable of giving one crop, with certain irrigation facilities; and 54 acres, if the land is dry.
Counsel for the MPSFDC mentioned the Ceiling Act before the Madhya Pradesh High Court while challenging the jurisdiction of the civil court to try this case. The High Court, in its January 12, 1995 order, held that if the land was found to be beyond the prescribed limit, then the authorities acting under the Ceiling Act would be at liberty to take such steps as might be deemed appropriate under the law; this was, however, no argument to conclude that they could not approach the civil court, the Judge sa id.
It is interesting that while Mala Anand and her mother asked for a compensation of Rs.1.24 crore from the State government in 1993 while filing their civil suit in the Chanderi civil court, they valued the disputed property at Rs.9,881, and paid a court fee of only Rs.1,168. Though the court fee paid by them is in consonance with the Madhya Pradesh Suit Valuation Act, the MPSFDC has contested the application stating that the land held by it was commercial land, not agricultural land. The MPSFDC had grow n seeds and sold it to farmers, thus putting the land to commercial use. According to the Madhya Pradesh Suit Valuation Act, the court fee payable is only 20 times the land revenue payable by the petitioner, if the land is agricultural, irrespective of i ts market value. Significantly, Mala Anand and her mother claimed the market value when the question of seeking adequate compensation came up.
On the ground of Limitation alone, it is contended by some legal experts, the suit filed by Mala Anand and her mother in the civil court, Chanderi, should have been rejected. According to the Limitation Act, as amended in 1964, any citizen dispossessed o f his or her land can challenge it within 12 years from the date of dispossession. But the civil court and the appellate courts held the view that as per Article 65 of the Limitation Act, the 12-year norm will apply only if the plaintiffs had knowledge o f their dispossession by the government; in the case of Mala Anand and her mother, they had no such knowledge, the courts felt.
Some senior advocates of the Supreme Court have described the entire episode as unfortunate. The Committee on Judicial Accountability, which played a leading role in exposing the allegations against the former Chief Justice, M.M. Punchhi, also appears re luctant to take up the Mala Anand case. Asked about this, senior Advocate Shanthi Bhushan, a member of the CJA, explained: "We need to have all the papers concerning the case and go through them in great depth. So far, we have not come across any materia l which suggests that Justice Anand played any role in this case. We are not yet convinced that there is any material which points to any wrong-doing or impropriety committed on the part of Justice Anand. The courts' judgments may be right or wrong; but the CJA can take up a case only if there is evidence of impropriety or wrong-doing on the part of a Judge. We are not concerned about the conduct of a Judge's wife or mother-in-law."
It is nobody's case that a Chief Justice's immediate relatives cannot have the rights of a litigant. But if there is a violation of the due process of law, perhaps one has to look at it in a dignified and effective manner, says constitutional expert Raje ev Dhavan. Dhavan is one among those who look at the Kalchakra article on Mala Anand as an exaggerated account based on ambiguous facts, amounting to scurrility. It is a mixture of half-truths, Dhavan said, commenting on the Kalchakra artic le. "After all, if one gets back his or her property, it is a victory for civil liberty," he observed, qualifying this by noting that one needed to know the full story about the case. Though the judiciary has to be above suspicion, the facts about it hav e to be "investigatable", he felt. According to Dhavan, the Supreme Court has wisely ignored the Kalchakra article on Anand, as initiating contempt proceedings against its editor would be an invitation to unwanted publicity.
It is relevant to recall here two codes of the "Restatement of Values of Judicial Life". The first code says justice must not merely be done, but must also be seen to be done. The behaviour and conduct of members of the higher judiciary must reaffirm the people's faith in the impartiality of the judiciary. Accordingly, any act of a Judge of the Supreme court or a High Court, whether in an official or personal capacity, which erodes the credibility of this perception has to be avoided.
The last (16th) code mentions that every Judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held. In the light of these principles, a full disclosure of all facts in the Mala Anand case may well be in order.