Devinder Pawar vs Delhi Jal Board & Another
2009 Latest Caselaw 1742 Del

*            HIGH COURT OF DELHI AT NEW DELHI

+                     WP(C)No.7939/2009 (unreported)

DEVINDER PAWAR                             ..... Petitioner
         Through Mr.Harish Malhotra, Sr.Advocate with
                 Mr.Rajan Bajaj, Advocate

                         Versus

DELHI JAL BOARD & ANOTHER            ..... Respondents

Through Mr.Chetan Sharma, Sr.Advocate with Mr.Suresh Tripathy, Advocate for R-1 Ms.Nandita Rao, Advocate for R-2

CORAM:

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE NEERAJ KISHAN KAUL

1. Whether reporters of the local papers be allowed to see the judgment ?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in the Digest ?

    %                       JUDGMENT
                             29.04.2009

NEERAJ KISHAN KAUL, J (Oral)

1. The petitioner in the present petition claims to be a journalist

and Chief Editor of a weekly newspaper "Meri Kalam". By way of the

present petition, he has challenged the appointment of respondent

No.2 as Member (Water Supply) of Delhi Jal Board and prays for a writ,

order or direction in the nature of Quo Warranto for quashing the

appointment of respondent No.2 as Member (Water Supply), Delhi Jal

Board.

2. It is the allegation of the petitioner that the appointment of

respondent No.2 as Member (Water Supply) was mala fide, illegal and

the requisite procedure for reemployment had not been followed. It is

further submitted by the petitioner that he had come to know from his

journalistic sources that respondent No.2 had been found to be guilty

of misconduct by the State of Haryana and a major penalty had been

imposed and since the respondent No.2 had already retired, a penalty

of 50% cut in pension had been imposed on him by the State of

Haryana. It was also the case of the petitioner that the office of

Member(Water Supply) DJB is a public office and that respondent No.2

was holding on to the said post in clear violation of the statutory

provisions inasmuch as the post of Member (Water Supply) can be held

by only a serving engineer, drawing salary in the scale of Joint

Secretary to Government of India. As per the petitioner, respondent

No.2 did not fulfil the criteria laid down in Section 3 of the Delhi Water

Board Act, 1988 and was accordingly an usurper of the post of

Member (Water Supply) against which a writ of Quo Warranto would

lie.

3. Counter affidavits were filed by respondent Nos. 1&2. A

preliminary submission is made on behalf of respondent No.1 that the

present petition filed by the petitioner styled as public interest

litigation is nothing but a camouflage to foster the present litigation at

the behest of a particular contractor. It is further submitted that the

petitioner is an agent of contractor M/s.Kaveri Infrastructure Pvt.

Limited and had initiated this proceeding at the behest of the

contractor.

4. Respondent no.1 in its affidavit also stated that M/s.Kaveri

infrastructure Pvt. Limited was awarded work some time in 2005 by the

Delhi Jal Board and an FIR was registered by the CBI against the

contractor. The registration of FIR by the CBI led to a decision by the

Delhi Jal Board not to permit the contractor to participate in future

tendering. This was challenged by the contractor and subsequently, in

the SLP filed by the Respondent No.1-DJB before the Supreme Court,

the Court was pleased to direct the Delhi Jal Board vide order dated

14th March, 2008 to render a decision on blacklisting the contractor

subject to affording a hearing to him. In terms of the said order, the

Chief Executive Officer of Delhi Jal Board had appointed a committee

comprising respondent No.2 amongst others to grant personal hearing

to the contractor. After personal hearing, vide order dated 28th March,

2008 the said Committee recommended that the contractor be not

allowed to participate in the tendering process till the outcome of

investigation being carried out by the CBI is made known to Delhi Jal

Board. Consequent upon the said recommendation an order dated 28 th

March, 2008 was issued by the respondent No.2 conveying the

decision that the contractor shall not to be allowed to participate in the

tendering process till such time the outcome of the investigation being

carried out by the CBI was made known to the Delhi Jal Board. As per

the respondent No.1/Delhi Jal Board it was because of this decision the

contractor felt disturbed and ever since he has been launching one

personal attack after another against the officials of Delhi Jal Board and

all concerned, either in person or through others like the present

petitioner. The Delhi Jal Board also alleged that the sinister design of

the contractor was evident from the fact that he had utilized the

petitioner, who claims himself to be a journalist, in the past in seeking

information through RTI from Delhi Jal Board on the same issues as

that of the contractor himself. Copies of the RTI applications filed by

the contractor and the petitioner on identical issues are annexed to the

counter affidavit of the Delhi Jal Board as Annexure R-2 collectively.

5. In the counter affidavit filed by respondent No.2 it is stated that

his reemployment was in accordance with the rules and there had

been no irregularity or illegality in the same. The present petition is

nothing but a proxy litigation based on false and baseless allegations

to vindicate the personal grudge of the contractor against respondent

No.2. Respondent No.2 further stated in the affidavit that another

petition titled Mann Singh v. Delhi Jal Board and Another, being WP(C)

No.2139/2007, was also filed at the instance of the said M/s.Kaveri

Infrastructure Pvt. Limited with the identical allegation of irregular

reemployment of respondent No.2, in November, 2007 before this

Court. This Court had refused to grant interim relief and the matter had

been transferred to Central Administrative Tribunal for adjudication.

6. Respondent No.1 vide Office order No.263 dated 7th August, 2006

nominated and posted respondent No.2 for the post of Member (Water

Supply) in Delhi Jal Board. The State of Haryana relieved the petitioner

from the parent department vide order dated 29th August, 2006.

However, as per the respondent No.2, the State of Haryana in a

completely arbitrary manner prematurely terminated his deputation

and recalled him vide order 28th March, 2007. Simultaneously, the

State of Haryana issued to him a show cause notice dated 28 th March,

2008 alleging that he had wrongly reported the date of

commencement of a particular work carried out by UP Irrigation

Department. Further, vide order dated 18th October, 2007 the State of

Haryana offered to respondent No.2 the post of Engineer-in-Chief

(Projects) if he returned. This according to respondent No.2 shows that

his competence and integrity was beyond question. The said order of

his recall was challenged by the respondent No.2 in Writ Petition

No.4559/2007 before the Delhi High Court. Vide order dated 15 th June,

2007 this Court was pleased to issue notice and restrain the State of

Haryana from taking any penal action against respondent No.2. Hence

he continued to serve with the respondent No.1. In November, 2007

the State of Haryana moved an application seeking to issue the

respondent No.2 a charge sheet in furtherance of the show cause

notice dated 28th March, 2007. During the pendency of the writ

petition the petitioner retired from the State of Haryana and was re-

employed with the Delhi Jail Board as per the rules. During the course

of arguments in WP(C) No.4559/2007 the parties agreed to the passing

of a consent order dated 29th August, 2008. Vide the said order this

Court was pleased to direct that :

"The stay order against the charge sheet passed by this Court on 23.10.2007 is vacated. Respondent Nos.1 & 2 shall start the inquiry against the petitioner pursuant to charge sheet served upon the petitioner on 29.10.2007 and shall conclude the same by 30.11.2008 while conducting the inquiry, the respondents shall also adjudicate the show cause notice dated 28.3.2007."

7. In compliance of the said order, the State of Haryana appointed

an inquiry officer. As per respondent No.2 he fully cooperated with the

inquiry as had been undertaken by him in the consent order. However

respondent No.2 was shocked to receive a show cause notice dated

12th January, 2009 from the State of Haryana which was in

disobedience of the specific direction of this Court. According to

respondent No.2, he then approached this Court vide a contempt

petition pointing out that the show cause notice of 12th January 2009 is

in contempt of order dated 29th August, 2009 passed by this Court in

WP(C) 4559/2007. This Court issued notice on the said contempt

petition file by respondent No.2 on 13th April, 2009 and the matter is

still pending.

8. A perusal of the writ petition clearly shows that it was filed by the

petitioner at the behest of M/s.Kaveri infrastructure Pvt. Limited. This

is evident from two letters dated 17th September, 2008 (Annexure P-1

collectively). It is interesting to note and reproduce below the

averments of the petitioner in the said two letters written to the

Hon'ble Prime Minister and the Hon'ble President of India. Contents of

paragraph -11 of the letter addressed to the Prime Minister (Annexure

P-1 at page 19 at page 23) are reproduced hereinbelow:

"11. The DJB's counsel Shri Suresh Tripathi is also a personal favourite of Sh.P.K.Tripathi, the Principal Secretary to the Chief Minister of Delhi and hence, helps in unnecessarily elongating the litigation procedures thereby causing the department to spend lakhs of rupees on litigation procedures. Like a case that belonged to the temporary debarment of a company M/s.Kaveri Infrastructure Pvt. Ltd has been ruled out in the company's favour time and again but still the CEO and counsel are bent upon challenging the court's decisions again and

again, thereby desperately trying to elongate the litigation as much as possible. What is being done is that the precious govt. funds are being wasted due to their personal enmity and without a check from higher administrative authorities on their acts; the public money is being free willingly wasted from their hands."

The contents of letter the letter addressed to the President of

India, Annexure P-1 page 26 at page 37, are as under:

"11. The DJB's counsel Shri Suresh Tripathi is also s personal favourite of Sh.P.K.Tripathi, the Principal Secretary to the Chief Minister of Delhi and hence, helps in unnecessarily elongating the litigation procedures thereby causing the department to spend lakhs of rupees on litigation procedures. Like a case that belonged to the temporary debarment of our company M/s.Kaveri Infrastructure Pvt. Ltd has been ruled out in the company's favour time and again but still the CEO and counsel are bent upon challenging the court's decisions again and again, thereby desperately trying to elongate the litigation as much as possible. What is being done is that the precious govt. funds are being wasted due to their personal enmity and without a check from higher administrative authorities on their acts; the public money is being free willingly wasted from their hands."

9. The said averments in the letters dated 17th September, 2008

leave no room for any doubt that the petitioner was actually an agent

of M/s.Kaveri infrastructure Pvt. Ltd, and was clearly acting at the

behest of the said contractor to the extent that not only was the

petitioner advocating and canvassing the case of M/s.Triveni

Infrastructure Private limited, it also referred to them as "our

company" in the letter addressed to the President of India. On this

being pointed out to the learned senior counsel appearing for the

petitioner, the explanation sought to be given was that the same was a

typographical mistake. Going by the tone, tenor and categorical

averments in the said letters by the petitioner, we refuse to accept this

explanation.

10. We were also anguished to note the highly irresponsible and

disparaging comments made about the counsel for the respondent

No.1-Delhi Jal Board in the said two letters. These letters have been

referred to and relied on by the petitioner in paragraph 8 at page 4 and

page F of the writ petition. The practice of making such irresponsible

comments against a counsel who is simply discharging his duties is

liable to be deprecated and clearly amounts to obstruction of the

process of justice.

11. Further, when we querried the petitioner, who was present in

person, as to what was the basis of his making false averments against

respondent No.2 in para 25 at page 10 of the writ petition, he had no

explanation for the same. The contents of para 25 at page 10 of the

writ petition are re-produced hereinbelow:

"25. That the petitioner has now come to know from his journalistic sources that respondent No.2 has been found guilty of the misconduct charged and major penalty has been imposed. Since he had already retired, a penalty of

50% cut in pension has been imposed, a copy of which is annexed as Annexure P-4."

12. In view of the stand of the respondent No.2, it is evident that the

statement that respondent No.2 had been found guilty of misconduct

and major penalty had been imposed on him and that a penalty of 50%

cut in pension had been imposed was clearly false and incorrect. The

petitioner has not only filed this petition at the behest of a private

contractor but has also made false and incorrect averments in the writ

petition and is also guilty of making highly irresponsible and

scandalous remarks about the counsel for the Delhi Jal Board. The

present petition and the conduct of the petitioner is clearly an abuse of

the process of law and amounts to contempt of court.

13. In Neetu v. State of Punjab (2007) 1 SCC 614 it was held by

the Supreme Court that when a particular person is the object and

target of a petition styled as PIL, the Court has to be careful to see

whether the attack in the guise of public interest is really intended to

unleash a private vendetta, personal grouse or some other mala fide

object. In Ashok Kumar Pandey v. State of West Bengal (2004) 3

SCC 349 the Supreme Court held that public interest litigation is a

weapon which has to be used with great care and circumspection and

the judiciary has to be extremely careful to see that behind the

beautiful veil of public interest an ugly private malice, vested interest

and/or publicity-seeking is not lurking. Courts must be careful to see

that a body of persons or member of public, who approaches the Court

is acting bona fide and not for personal gain or private motive or

political motivation or other oblique consideration. The court must not

allow its process to be abused for oblique considerations by masked

phantoms who monitor at times from behind. Petitions of such persons

deserves to be thrown out by rejection at the threshold, and in

appropriate cases with exemplary costs. Further, in T.N.Godavarman

Thirumulpad v. Union of india (2006) 5 SCC 28 Supreme Court

quoted from its earlier judgment in Dattaraj Nathuji Thaware v.

State of Maharashtra (2005) 1 SCC 590 wherein the Court held that

the attractive brand name of public interest litigation should not be

used for suspicious products of mischief. It should be aimed at

redressal of genuine public wrong or public injury and not be publicity

oriented or founded on personal vendetta.

14. The present petition styled as public interest petition is clearly an

abuse of the process of court for the reasons stated herein above.

15. The petitioner is also guilty of making false averments and

allegations against respondent No.2 in the present writ petition. The

petitioner has falsely stated that respondent no.2 had been found

guilty of misconduct and that a major penalty had been imposed on

him. When the petitioner, who was present in person, was confronted

with the fact that no such thing had happened and only an inquiry

proceeding was going on, he had no explanation for the false and

incorrect averments made in the writ petition. The petitioner has

clearly not approached the court with clean hands and has not stated

the correct facts. The petitioner is therefore clearly guilty of

deliberately making false and wrong averments in the writ petition and

is not entitled to any relief from this Court. The conduct of the

petitioner in resorting to the aforesaid mis-statements and false

averments in the writ petition is a gross abuse of the process of the

Court. A person who makes false averments and does not come to the

court with clean hands is liable to be thrown out at the threshold and

appropriate action initiated against him in accordance with law.

16. We were deeply anguished to note the irresponsible and grossly

unfair comments made by the petitioner in his letters dated 17th

September, 2008 which are relied on in the writ petition against the

counsel of Delhi Jal Board. The allegations are defamatory and grossly

irresponsible. We deprecate the practice of personal attacks on

counsel appearing for rival parties without any basis or justification

whatsoever. This tendency has to be curtailed and condemned. Such

attempts to make scandalous and irresponsible personal allegations

against a counsel without any justification whatsoever clearly amount

to obstruction of due process of court/justice. For the above stated

reasons, we do not intend to go into the merits of the matter as the

present petition is a gross abuse of the process of law and is clearly

motivated by private malice and vested interest. The writ petition is

liable to be rejected at the threshold with exemplary costs.

17. Accordingly, the present writ petition is dismissed with costs,

quantified at Rs.50,000/-, to be paid by the petitioner to the two

respondents in equal share, within a period of two weeks from today.

(NEERAJ KISHAN KAUL) JUDGE

CHIEF JUSTICE

APRIL 29, 2009 "v"