Allahabad High Court
Kishan Kumar Tyagi And 2 Others vs Suresh Chandra Sharma And 12 ... on 3 December, 2018
Bench: Bharati Sapru, Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 35
Case :- SPECIAL APPEAL DEFECTIVE No. - 887 of 2018
Appellant :- Kishan Kumar Tyagi And 2 Others
Respondent :- Suresh Chandra Sharma And 12 Others
Counsel for Appellant :- Indra Raj Singh,Adarsh Singh
Counsel for Respondent :- C.S.C.,Avnish Kumar Srivastava,Mahesh Narain Singh
Hon'ble Bharati Sapru,J.
Hon'ble Saurabh Shyam Shamshery,J.
{Delivered by: Hon'ble Saurabh Shyam Shamshery, J.}
Heard Sri Adarsh Singh, learned counsel for the appellants, Sri Avnish Kumar Srivastava, learned counsel for the respondents and learned Standing Counsel for the State.
Cause shown in the affidavit filed in support of the application under Section 5 of the Limitation Act is sufficient. The delay in filing the special appeal is hereby condoned.
Application is allowed.
Office is directed to allot regular number to the present special appeal.
This litigation is a classic example of how a Private Interest Litigation (PIL) could be filed in the name of Public Interest Litigation (PIL).
One Suresh Chandra Sharma proclaiming himself to be a public spirited person, filed a Public Interest Litigation (PIL) bearing Civil Misc. Writ Petition No.4142 of 2018, before the learned Single Judge of this Court, seeking removal of alleged encroachment on the Khasra No.1197, situated at Ward No.2 which belongs to Gaon Sabha, Village Kharkhauda, District Meerut, U.P by the private respondents.
In para No.4 of the Writ Petition, the PIL petitioner has specifically mentioned that:-
"That the petitioner has no personal interest in the controversy raised by him in this writ petition and also he has no personal gain in the issue raised by him in the instant writ petition. The petitioner specifically states that he has no personal dispute pending or was in past against the respondents herein."
The learned Single Judge without prima facie verifying the credentials and without ascertaining the correctness of the contents of the petition, has entertained the PIL.
The learned Single Judge without calling for reply from respondent, disposed of the writ petition vide order dated 13.08.2018, by directing the PIL petitioner to submit a representation before the Assistant Collector bringing the relevant facts regarding encroachment and thereafter the concerned Authority shall initiate the procedure prescribed under Section 67 of the Uttar Pradesh Revenue Code, 2006 r/w Rules 67 of the Uttar Pradesh Revenue Code Rules, 2016. The order states that:-
"It would serve no purpose to keep the writ petition pending, and therefore, it is directed that petitioner may submit a representation before the Assistant Collector bringing the relevant facts regarding encroachment over the aforesaid plot to the notice of the concerned Assistant Collector who, if no proceedings under Section 67 of the Uttar Pradesh Revenue Code, 2006 have already been registered in relation to encroachment over the said plot, on receiving the aforesaid representation shall inquire into the allegations made by the petitioner after following the procedure prescribed under Section 67 of the Uttar Pradesh Revenue Code, 2006 read with Rule 67 of the Uttar Pradesh Revenue Code Rules, 2016 and pass appropriate orders within a period of six months from the date when the aforesaid representation is filed by the petitioner. In case the allegations of the petitioner are found to be true the Assistant Collector shall ensure that the encroachments over the Gaon Sabha property are removed within a period of one month thereafter unless the order of Assistant Collector is stayed by any superior authority or court in any appeal or revision filed against the order of Assistant Collector. It is also directed that, if the petitioner or any other member of the Gaon Sabha files an application in the case registered before the Assistant Collector, to be heard in opposition to the noticee in the said cases, the Assistant Collector shall afford a reasonable opportunity to the said persons to oppose the defence, if any, taken by the noticee."
The private respondents have challenged the order dated 13.08.2018, passed by the learned Single Judge in the present Special Appeal.
The challenge to the impugned order are mainly on the grounds that the Public Interest Litigation is based upon personal vendetta and, therefore, it is not maintainable and further a complaint is pending against the PIL petitioner regarding the illegal encroachment made by him on the public land also which is supported by documents annexed with the Special Appeal and, therefore, the declaration made in para 4 of the writ petition that there is no personal interest, is false.
From the pleadings on record and submissions made at Bar, there is no doubt that it is a clear case of Private Interest Litigation and this type of litigation must be discouraged as they are causing serious threat to the very novel objects of Public Interest Litigation.
The PIL petitioner has in order to settle his personal vendetta, approached the learned Single Judge and in the garb of the word encroachment, has mislead the learned Single Judge by not disclosing that he himself is an alleged encroacher and certain complaints are pending against him in this regard.
Therefore, the PIL did not qualify as a Public Interest Litigation at all and further PIL did not has merit for issuing a writ of mandamus.
In a leading judgment on the Public Interest Litigation, the Hon'ble Supreme Court in the matter of State of Uttranchal vs. Balwant Singh Chaufal and Others reported at (2010) 3 Supreme Court Cases 402 wherein after considering the entire history of Public Interest Litigation, the Hon'ble Supreme Court in paragraph No.181 of the judgment issued certain directions to streamline the PIL, which are reproduced hereinbelow:-
181. "We have carefully considered the facts of the present case. We have also examined the law declared by this Court and other courts in a number of judgments. In order to preserve the purity and sanctity of the PIL, it has become imperative to issue the following directions:-
(1) The Courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations.
(2) Instead of every individual judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the Rules prepared by the High Court is sent to the Secretary General of this Court immediately thereafter.
(3) The Courts should prima facie verify the credentials of the petitioner before entertaining a P.I.L.
(4) The Courts should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL.
(5) The Courts should be fully satisfied that substantial public interest is involved before entertaining the petition
(6) The Courts should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions.
(7) The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation.
(8) The Courts should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations."
The present Public Interest Litigation also fails in considerations of the abovementioned directions as the present PIL has been filed for extraneous and ulterior motives.
It is also imperative to mention that in view of the direction No.2, passed by the Hon'ble Supreme Court in Balwant Singh Chaufal (Supra), the Rule 3A has been inserted in the Chapter 12 of the Allahabad High Court Rules, 1952 which states that:-
"(3A). In addition to satisfying the requirements of the other rules in this Chapter, the petitioner seeking to file a Public Interest Litigation, should precisely and specifically state, in the affidavit to be sworn by him giving his credentials, the public cause he is seeking to espouse; that he has no personal or private interest in the matter; that there is no authoritative pronouncement by the Supreme Court or High Court on the question raised; and that the result of the Litigation will not lead to any undue gain to himself or anyone associated with him, or any undue loss to any person, body of persons or the State."
As noted above, the contents of para 4 of the PIL are also not inconsonence of the Rule 3A as the averments have not even mentioned that "the result of the litigation will not lead to any undue gain to himself or anyone associated with him" beside wrongly mentioned that there is no personal interest in the PIL.
The Hon'ble Supreme Court in the matter of Jaipur Shahar Hindu Vikas Samiti vs. State of Rajasthan and Others reported at (2014) 5 SCC 530, at para 49 has cautioned about frivolous Public Interest Litigation in following words:-
49. "The concept of Public Interest Litigation is a phenomenon which is evolved to bring justice to the reach of people who are handicapped by ignorance, indigence, illiteracy and other down trodden people. Through the Public Interest Litigation, the cause of several people who are not able to approach the Court is espoused. In the guise of Public Interest Litigation, we are coming across several cases where it is exploited for the benefit of certain individuals. The Courts have to be very cautious and careful while entertaining Public Interest Litigation. The Judiciary should deal with the misuse of Public Interest Litigation with iron hand. If the Public Interest Litigation is permitted to be misused the very purpose for which it is conceived, namely to come to the rescue of the poor and down trodden will be defeated. The Courts should discourage the unjustified litigants at the initial stage itself and the person who misuses the forum should be made accountable for it. In the realm of Public Interest Litigation, the Courts while protecting the larger public interest involved, should at the same time have to look at the effective way in which the relief can be granted to the people, whose rights are adversely affected or at stake. When their interest can be protected and the controversy or the dispute can be adjudicated by a mechanism created under a particular statute, the parties should be relegated to the appropriate forum, instead of entertaining the writ petition filed as Public Interest Litigation."
In view of the above discussions and in our considered opinion, the writ petition (PIL) filed before the learned Single Judge did not qualified as a Public Interest Litigation at all and further did not has merit for issuing a writ of mandamus. The writ petition is nothing, but a petition filed for extraneous considerations for personal gains.
In view of the foregoing discussions, we set aside the judgment passed by the learned Single dated 13.08.2018 and allow the appeal accordingly.
In order to discourage the writ petitioner from filing such frivolous Public Interest Litigation again, costs of Rs.10,000/- is imposed on him and is directed that costs be paid to the High Court Legal Services Committee, Allahabad, within two weeks.
The parties are at liberty to approach to the concerned Authorities for redressal of their grievances.
(Saurabh Shyam Shamshery, J.) (Bharati Sapru, J.)
Order Dated:- 03.12.2018.
Rishabh
