FAKRUDDINversusTHE PRINCIPAL, CONSOLIDATION TRAINING INSTITUTE AND ORS.

                      "
                     FAKRUDDIN                                                    A
                          v.
   THE PRINCIPAL, CONSOLIDATION TRAINING INSTITUTE
                       AND ORS.

                               MAY 10, 1995
                                                                                  B
               [R.M. SAHA! AND S.B. MAJMUDAR, JJ.]

       Judicial propriety-Writ petition decided by a Bench-One of the Judges
was counsel to the opposite party, before his elevation-Even after pointing
out this Jae• he chose to decide the case-Neither justified nor healthy for the   C
institution-Merits of the case is immaterial-Should have been refen-ed to
some other Benclt-Order set aside and matter remitted back to the High
Court.                                                                 I

       In this Appeal, the dispute related to allotment of 'Chaks' in con-
solidation proceedings. However the dispute did not raise any question of         D
title. The High Court dismissed the Writ petition. Hence this appeal.

      Disposing of the appeal and setting aside the High Court's order,
this Court
                                                                                  E
      HELD : 1. The dispntes related to allotment of 'Chaks' in consolida-
tion proceedings. Such a dispute does not raise any question of title. No
exception, therefore, could be taken to the order passed by the High Court
dismissing the writ petition in limine. But what has compelled this Court
to interfere with the order of the High Court is that it was decided by a
Bench of which one of the judges was a counsel for the respondents before         F
bis elevation. It .may happen at times that a judge who had appeared for
a party before his elevation may have forgotten about it. An order passed
in ignorance of such factual error may not he taken notice of. But where
it was specifically pointed out, and the Jndge was apprised of it, yet he
chose to decide the case, such an act with party to judge is neither justified    G
nor healthy for the institution. The result of the decision is immaterial.
May be that another Bench hearing the case may have come to same
conclusion. (390-H, 391-A-C]

      2. It is not the correctness or otherwise of the order but the sense of
justice, the public glare in which a judge is exposed every moment which          H
                                     389
    390                      SUPREME COURT REPORTS [1995) SUPP. 1 S.C.R.

A is more important. A decision of a case one or other way may effect an
    individual but a decision by a judge who had appeared for one of the
    parties irrespective of the stakes, the result and the consequences is of
    much significance from a social point of view. Therefore, irrespective of
    the merits of the case the order passed by the High Court is set aside and
B   tl1e matter is remitted back to the High Court for deciding it afresh on
    merits in accordance with law. Any observation made in this order shall
    not be taken as deciding the rights of parties. [391-D-E]

            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5791 of
    1995.
c        From the Judgment and Order dated 2.11.90. of the Patna High Court
    in C.W.J.C. No. 4498 of 1990.

         H.L. Srivastava, S.M. Rai, B.M. Sharma and T.N. Singh for thtt
    Appellant.
D
            B.B. Singh for the Respondents.

            The following Order of the Court was delivered :

            Leave granted.
E
          Justice should not only be done but seem to be done. That is the
    basic structure on which confidence and faith in the institution rests. The
    Judiciary from the bottom in the hierarchy to the apex at the top commands
    respect because of its impartiality and objectivity. When a judge directs a
    case to be listed before another Court or Bench, as he knows one or the
F   other party, it is not because any statutory law precludes him from hearing
    and deciding it but the propriety is practised and observed to exclude even
    the remotest possibility of any misgiving or doubt about the impartiality of
    the judge as even if he is just and fair and his decision is correct yet it may
    not be satisfying.
G
           What happened in this case is not only unfortunate but to compound
    it further the learned Judge even when apprised that he was the counsel
    for the respondent when he was at the bar did not observe that minimum
    norm which is expected to be observed even by quasi-judicial authorities.

H           The dispute related to allotment of 'Chaks' in consolidation proceed-
            FAKRUDDIN v. CONSOLIDATION TRNG. INSTI.                    391

ings. Such a dispute does not raise any question of title. No exception, A
therefore, could be taken to the order passed by the High Court dismissing
the writ petition in limine. But what has compelled us to interfere with the
order of the High Court is that it was decided by a Bench of which one of
the judges was a counsel for the respondents before his elevation. It may
happen at times that a judge who had appeared for a party before his B
elevation may have forgotten about it. An order passed in ignorance of
such factual error may not be taken notice of. But where it was specifically
pointed out, as claimed in the Special Leave Petition, that the learned
Judge was appraised of it and yet he chose to decide the case, is neither
justified nor healthy for the institution. The result of the decision is
immaterial. May be that another Bench hearing the case may have come C
to same conclusion. In fact this court might have refused to interfere with
the order relating to allotment of 'Chakas' but it is not the correctness or
otherwise of the order but the sense of justice, the public glare in which a
judge is exposed every moment which is more important. A decision of a
case one or other way may affect an individual but a decision by a judge D
who had appeared for one of the parties irrespective of the stakes, the
result and the consequences is of much significance from a social point of
view. Therefore, irrespective of the merits of the case we set aside the order
passed by the High Court and remit the case back to the High Court for
deciding it afresh/on merits in accordance with law. Any observation made
in this order shall not be taken as deciding the rights of parties.            E

       The appeal is disposed of accordingly. No Costs.

G.N.                                                   Appeal disposed of.