Hemant Malviya vs The State Of Madhya Pradesh
2024 Latest Caselaw 21367 MP

Madhya Pradesh High Court

Hemant Malviya vs The State Of Madhya Pradesh on 7 August, 2024

Author: Sushrut Arvind Dharmadhikari

Bench: Sushrut Arvind Dharmadhikari

                                                                -1-

                          IN THE        HIGH COURT OF MADHYA                          PRADESH

                                                     AT INDORE
                                                             BEFORE
                         HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                                                               &
                                     HON'BLE SHRI JUSTICE GAJENDRA SINGH
                                              ON THE 7th OF AUGUST, 2024
                                            WRIT PETITION No. 24154 of 2023
                                              HEMANT MALVIYA
                                                   Versus
                                  THE STATE OF MADHYA PRADESH AND OTHERS


                         Appearance:

                         Shri Aashay Dubey, counsel for the petitioner.
                         Shri Manoj Munshi, counsel for the respondent No.2.
                         Shri Veer Kumar Jain, learned Senior Advocate assisted by Shri Namit Jain,
                         counsel for respondent No. 5 and 6.
                         Shri Aniket Naik, Dy. Advocate General for the respondent/State.
                         Shri Pratyush Mishra, counsel for the respondent No. 15.


                                     Reserved on        :             08.07.2024
                                     Pronounced on       :            07.08.2024


                                                             ORDER

Per: Justice Sushrut Arvind Dharmadhikari

Heard on the question of maintainability of the writ petition as well as

on the admission.

2. The present petition has been filed under Article 226 of the

Constitution of India in the nature of Public Interest Litigation (PIL) and has

sought for the following reliefs:

(a) Allow the present PIL and may kindly direct the respondents to ensure that the aforementioned illegal construction situated at 25, Yashwant Niwas Road is halted, removed and any further construction is cancelled.

(b) Allow the present PIL and may kindly direct the respondents to remove any current existing temple structure or any other analogous structure which is situated on the park land.

(c) Direct the respondents to ensure that no further construction shall be convened on the aforementioned land.

(d) Direct the respondents No. 2 to ensure that the aforementioned land is converted into a usable open recreational area for the local residents of the area and direct respondent 1-4 to take appropriate action against 5-26.

(c) Any other relief which the Hon'ble Court deems fit in the facts and circumstances of the present matter.

3. Learned counsel for the petitioner contended that the petitioner is a

Journalist and Editor of production house for news programmes. He is a

resident of city of Indore and has participated in various journalistic activities

for the past 15 years. He has conducted various social welfare projects like

providing food and financial assistance to the underprivileged. He has filed

this petition in the interest of public at large and has no personal interest in

the matter. The present petition has been preferred due to the inaction and

inability of the governmental instrumentalities to remove illegal construction

of a Temple and encroachment on the open land situated at 25, Yashwant

Niwas Road which is earmarked for open park land use as per the map of

town and country planning and Indore Development Plan, 2021.

4. Learned counsel for the petitioner contended that the Manmohan

Parshvanath Jain Shwetamber Mandir Evam Guru Mandir is a Temple

Establishment dating back to the year 2012 has been constructed illegally on

the premises of a small colony on the aforesaid land. On the complaints

made by the residents of the colony, the construction of the said temple

premises was stopped and was demolished. After six months, the said

premises was reconstructed. In 2022, the idol of the temple was shifted for

construction of a bigger temple premises on the encroached park land. As per

Rule 6.7.3 of the Indore Development Plan, 2021, any colony or any part

thereof shall have a minimum 10% of total land as publicly accessible open

land. Hence, the aforementioned construction is clearly against the

provisions of M.P.Nagar Tatha Gram Nivesh Adhiniyam, 1973. Petitioner

issued legal notices through counsel for the respondents No.1 to 4 but action

has been taken nor the construction has been stopped by the respondents No.

5-26/trustees. Hence, this public interest litigation is being preferred.

5. Per contra, Shri V.K.Jain, learned Senior Counsel appearing for the

respondents No. 5 and 6 has vehemently opposed the prayer and contended

that though the petitioner has claimed himself to be a journalist, social worker

and interested in protecting environment, however, not a single document has

been filed to support his claims. Further, the temple which is said to be

constructed illegally has been existing since last 40-45 years and none of the

resident has ever raised any complaint against it. From time to time, the

temple has undergone maintenance, repairs and beautification. The petitioner

with malafide has referred the Development Plan 2021 but has deliberately

concealed that the said colony was developed in the year 1977 i.e. prior to 30

years of coming into force of the said Development Plan.

6. Learned Dy. Advocate General appearing for the respondent/State

submits that in case there is any illegal construction or encroachment within

the urban area within the municipal limits, the same is liable to be removed.

However, in the present case, the relief sought for by the petitioner are

generic and therefore, the same could not be granted due to absentia of facts.

He further contended that the petitioner herein has failed to produce on record

to satisfaction of the Court such social work in last couple of years in the area

in respect of which Public Interest is involved. Merely spending money like

lawyer's fees from their own pocket does not satisfy test of locus standi.

Therefore, this writ petition is not maintainable.

7. The Division Bench of this Court in Surendra Pratap Singh Vs. State

of M.P. and Others[2019 (1) M.P.L.J. 75], has referred to the judgment of

the Apex Court involving Public Interest Litigation in the case of State of

Uttaranchal Vs. Balwant Singh Chaufal and others[(2010) 3 SCC 402]

wherein the Apex Court has laid down certain guidelines to be followed

before exercising jurisdiction of Public Interest Litigation. The guidelines are

as under :-

(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 RP 638/2017 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 PIL.

(4) The court should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL.

(5) The court should be fully satisfied that substantial public interest is involved before entertaining the petition. (6) The court 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 court 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."

8. Learned counsel for the respondents submitted that in the present

petition, none of the aforesaid guidelines are satisfied as laid down in the case

of State of Uttaranchal Vs. Balwant Singh Chaufal and others(surpa),

therefore, this writ petition is not maintainable. Learned counsel for the

respondents also raised a question as to whether the respondents/State

authorities can be directed to remove illegal construction and encroachment,

even if any, in a Public Interest Litigation. The petitioner has suppressed all

these facts therefore, this writ petition deserves to be dismissed with heavy

cost.

9. We have heard learned counsel for the parties and perused the record.

10. The questions which arises for consideration in this Public Interest

Litigation are as under :

"(i) whether a PIL is maintainable at the instance of the strangers on the pretext that they are social workers ?

(ii) whether any enroachment or illegal construction can be directed to be removed in a PIL ?''

11. So far as the answer to the first question is concerned, except the

averment in the petition that the petitioner is a social worker and the

petitioner himself is paying the fees of the advocate from his own pocket,

there is no assertion of his activities undertaken in the area of the subject-

matter of this writ petition. Simple self-serving statement that the petitioner is

a social worker is not sufficient to invoke the public interest writ jurisdiction

of this Court unless the petitioner is able to produce on record to the

satisfaction of the Court such social work in last couple of years in the area in

respect of which the public interest is involved. A practice in the cases before

this Court is to make a statement that the petitioner is a social worker and he

is spending the money including the lawyer's fee from his own pocket, that by

itself does not satisfy the test of a locus standi to file public interest litigation.

The public interest writ jurisdiction was intended to vindicate public interest

where fundamental and other rights of the people who were poor, ignorant or

in socially or economically disadvantageous position and were unable to seek

legal redress were required to be espoused. However, the individuals who are

effected and having grievance may approach this Court in individual capacity

seeking ventilation of their grievance.

12. So far as answer to the second question is concerned, the question as to

whether there is any encroachment or illegal construction, has to be decided

only after recording evidence. This Court cannot decide the writ petition

based on disputed question of facts. The PIL is absolutely misconceived and

cannot be entertained.

13. In view of the aforesaid and in the light of the guidelines laid down in

the case of State of Uttaranchal Vs. Balwant Singh Chaufal and others

(surpa), this Court is not inclined to entertain this writ petition. Accordingly,

the same is, hereby, dismissed at the admission stage itself. However,

petitioner would be at liberty to approach competent authority raising

grievance espoused in the present petition, in accordance with law, if so

advised.

14. No order as to cost.

                            (SUSHRUT ARVIND DHARMADHIKARI)                            (GAJENDRA SINGH)
                                    JUDGE                                                  JUDGE
                    vidya