Rajasthan High Court - Jaipur
Nirmal Nahata vs State (Urban Development)Ors on 26 November, 2013
Author: Amitava Roy
Bench: Amitava Roy
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER 1. D.B. Civil Special Appeal (Writ) No.895/2013 Om Metals Consortium Pvt. Ltd. Versus Nirmal Nahata & Ors. 2. D.B. Civil Writ Petition No.15241/2013 Nirmal Nahata Versus State of Rajasthan & Ors. Date of Order :: 26th November, 2013 HON'BLE THE CHIEF JUSTICE MR. AMITAVA ROY HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA Mr. Ajay Kumar Jain, for petitioner in CWP No.15241/2013 & respondent in SAW 895/2013 Mr.R.N. Mathur, Senior Counsel, assisted by Mr. S.S. Hora, for appellant in SAW 895/2013 & respondent No. 3 and 4 in CWP 15241/2013. Mr. Sudhir Gupta, Senior Counsel, assisted by Mr. Sachin Mehta, for JDA/respondent No. 2. Mr. G.S. Bapna, Advocate General, assisted by Mr. Abhinav Bhandari, for the State. Mr. Kamlesh Kumar Sharan, for respondents. <><><> BY THE COURT : (Per Hon'ble Veerendr Singh Siradhana, J.)
Aggrieved of the alleged illegal construction, threatening civic facilities, amenities and aesthetic beauty of Jaipur, the writ petitioner, stating himself to be directly concerned and affected; preferred Writ Petition Number 15241 of 2013 (Nirmal Nahata Versus State of Rajasthan and others), seeking appropriate writ, order or direction for restrain and demolition of the alleged illegal construction at Plot No. A-2, C-Scheme, Jaipur, raised by respondent numbers 3 and 4 Om Metals Consortium Pvt. Ltd. and Om Metals Infrastructure Pvt. Limited. and further prayed for a direction to respondent numbers 1 and 2 State Authorities i.e., State of Rajasthan and Jaipur Development Authority (for short 'the JDA'), to take necessary steps to prevent the illegal construction and an action against erring Officers.
2. The learned Single Judge on 27th of August, 2013 passed an ex-parte interim order, which reads thus:-
Notice of stay application be issued to the respondents. Rule be made returnable within two weeks. Notice be given Dasti.
For the reasons given in the order of admission passed today in the main writ petition, it is deemed proper to order that in the meanwhile the respondent No.3 and 4 shall not raise construction any further.
The SHO, Police Station Ashok Nagar, is directed to have a videography recorded of the construction raised so far on Plot No. A-2 C-Scheme, Statue Circle Jaipur, within 24 hours. The cassette of the videography shall be submitted by him in the registry, immediately thereafter.
Deputy Registrar (Judl.) is directed to send a copy of this order to the SHO, Police Station Ashok Nagar through fax, forthwith.
3. The respondent numbers 3 and 4 aggrieved of the ex-parte interim order dated 27th of August, 2013 preferred the above-noted D.B. Civil Special Appeal (Writ) No. 895/2013 and on 13th of September, 2013 Co-ordinate Bench of this Court passed the following order:-
We have heard learned counsel for the parties for some time.
The preliminary objection of Mr. RK Agarwal, Sr. Advocate, assisted by Mr.AK Jain, ld.counsel for the respondent No.1 is that the present intra-court appeal has been filed against the order dt.27/08/2013 passed in writ petition and also the order passed on the stay application granting ex-parte ad-interim order; and the appellant is always at liberty to approach the ld.Single Judge by filing its response and also by moving application, if so advised, for vacation of the ex-parte ad-interim order impugned in the instant intra-court appeal dt.27/08/2013.
Mr.SS Hora, ld.counsel for the appellant, on the other hand, submits that what is being submitted by the respondents' counsel, ordinarily, he would have advised his client to approach the ld.Single Judge and file its response and also an application for vacation of the ex-parte ad-interim order impugned but in the facts and circumstances of the instant case, from the very perusal of the pleadings in the writ petition, what is being contended by the respondent No.1 (petitioner in the writ petition), alleged as a public spirited approach and the rights of an individual are not in any manner adversely affected; and this being a Public Interest Petition, as alleged, ordinarily it has to be heard by the Division Bench and he has brought this fact to the notice of the Court by filing instant appeal.
Mr. Sudhir Gupta, Sr. Advocate, assisted by Mr. Sachin Mehta, ld.counsel for the respondent No.3-JDA, also supports the submission of Mr. SS Hora, ld.counsel for the appellant; and submits that what is being contented in the pleadings of the petition is a Public Interest Petition (PIL) is to be heard by the Hon'ble Division Bench.
Taking note of the submission made, we would not like to express any opinion as regards the ex-parte interim order impugned in the instant intra-court appeal dt.27/08/2013 but at the same time, consider it appropriate to observe that let the SB Civil Writ Petition No.15241/2013 may be treated as a Public Interest Litigation (PIL) and may be listed before the Division Bench Accordingly, the writ petitioner is directed to file one additional set of the petition and at the same time, Registry is directed to treat SB Civil Writ Petition No.15241/2013 as Public Interest Petition (PIL) and may be listed before Division Bench on 17/09/2013 alongwith DB Civil Special Appeal (Writ) No.895/2013, as jointly prayed.
4. It is in this backdrop the facts that the matter has come up for adjudication as a Public Interest Litigation.
5. The material facts and particulars necessary for adjudication of the controversy are that the writ petitioner, who is a resident of C-Scheme, Jaipur, in close vicinity to the site where the alleged illegal construction was being raised, preferred the writ application stating that the Jaipur, known as 'Pink City', is the first planned city in the country and is known for its planned construction and development. In the year 1944, the then Government constructed Statue Circle and planned a residential scheme known as C-Scheme, wherein plots other than near the Statue Circle were to be auctioned for residential colony and a notification in this reference, with an exception of Plot A-1 to A-6, which were shown around the Statue Circle; all other plots were to be auctioned.
6. The permissible height for construction of 'A' category is permissible upto 50 feet (15 meters), so as to keep the Statue Circle open and beautiful. Plot A-2 was transferred to Seth Anandram Jaipuria Trust by the State Government on 8th of December, 1944. On 14th of February, 1952 Seth Anandram Jaipuria Trust transferred the said plot to Maharaja Shree Ummed Mill Limited, Pali. On initiation of acquisition proceedings for 24917 square meters of land from Plot Number A-2, Maharaja Shree Ummed Mill Limited, Pali wrote a letter to the State Government stating the Plot Number A-2, to be a plot in 'A' category, with a prayer for grant of exemption under Section 20 of the Urban Land Ceiling Act, 1976.
7. The petitioner further alleged that respondent number 3 -(Om Metals Consortium Pvt. Ltd.) is 100% subsidiary of respondent number 4 (Om Metals Infrastructure Pvt. Ltd.) and is very close to persons in power, and was successful to purchase the land out of Plot Number A-2 from Maharaja Shree Ummed Mill Limited, Pali; and applied for raising construction of a residential complex to an extent of 30 meters in height. It is further alleged that the State-respondents have granted permission illegally by generating false note-sheets, contrary to the law and against the Master Plan-2011 as well as Master Plan-2025, wherein a part of plot in question, was shown as institutional area and therefore, no residential complex could be permitted to be raised in an institutional area. Further, the permission for construction in the area, for more than 15 meters height, is in violation of the Building Rules, 2010. It is further stated by the petitioner that the authorities of the JDA generated false note sheets under the influence of respondent numbers 3 and 4, showing the plot as not around the Statue Circle. The relevant note reads thus:-
izkFkhZ }kjk iz'uxr Hkw[k.M la[;k ,&2] lh&Ldhe ds Hkou ekufp= vuqeksnu gsrq gjh i=koyh fnukad 29-03-2011 dks izLrqr dh xbZ FkhA iz'uxr izdj.k LVsP;w lfdZy ls budeVSDl dh fcfYMax ds mijkUr i`Fohjkt jksM ij nwljk Hkw[k.M gSA izdj.k dks chihlh chih dh cSBd fnukad 06-09-2011 esa lfefr ds fopkjkFkZ izLrqr fd;k x;k FkkA chihlh chih dh cSBd esa izdj.k esa dqN eq[; fcUnqvksa ij fuEu fu.kZ; fy;s x;s%& dk;Zokgh fooj.k dh izfr iSjk 59@,u ij layXu gS 1- tksu }kjk lR;kfir ekSds dh ekiksa ds vuq:i fu;ekuqlkj mi foHkktu fd;k tkos pwafd izdj.k 1500 oxZxt ls vf/kd gS] vr% jkT; ljdkj ls Lohd`fr izkIr dh tkosA 2- t;iqj fodkl izkf/kdj.k t;iqj jhtu Hkou fofu;e 2010 dh /kkjk 8-7 rkfydk 6 ds fcUnq la[;k XXiii }kjk LVsP;w lfdZy ds pkjksa vksj fLFkr Hkw[k.Mks Hkouksa dh WpkbZ 15 ehVj rd izfrcfU/kr gSA lh&Ldhe ;kstuk ds ikVZ Iyku ds vuqlkj iz'uxr Hkw[k.M LVsP;w lfdZy ij fLFkr ugha gSA ysfdu ;g Hkw[k.M LVsP;w lfdZy ij budeVsDl Hkou ls yxrs gq;s i`Fohjkt jksM ij nwljk Hkw[k.M gSA i`Fohjkt jksM fLFkr Hkw[k.Mksa ij WpkbZ Hkou fofue;kuqlkj csVjesUV ysoh yh tkdj vf/kdre 30 ehVj rd vuqKs; gSA Hkou fofu;eksa dh rkfydk 6 ds vuqlkj tfoizk dh chihlh }kjk fnukad 06-09-2011 dks vko';d 'krksZa lfgr izdj.k fuf.kZr fd;k x;k gSA dk;Zokgh fooj.k dh izfr iSjk 59@,u ij layXu gS ;gkW ;g Hkh mYys[kuh; gS fd LVsP;w lfdZy ij fLFkr Hkw[k.Mksa esa csVjesUV ysoh yh tkdj Hkh 15 ehVj ls T;knk WpkbZ vuqKs; ugha dh tk ldrh gSA izkFkhZ }kjk izLrqr ekufp=ksa esa dqy 125 fuokl bZdkb;ka izLrkfor dh gSA vr% 24 vkoklh; bZdkb;ka fu;ekuqlkj vkfFkZd n`f"V ls detksj oxZ ds fy, vkjf{kr djus dk izko/kku gSA izkFkhZ }kjk jkT; ljdkj ds }kjk tkjh i= fnukad 01-07-2011 ds vuqlkj 'kiFk i= izLrqr dj fn;k x;k gS] orZeku esa vHkh bl Hkw[k.M ij vkfFkZd n`f"V ls detksj oxZ gsrq fuokl bZdkbZ;ka izLrkfor ugha dh xbZ gSA
8. The petitioner also made serious allegations to the effect that the authorities of the JDA generated note-sheets at para 76 to 84 in an arbitrary and mala fide manner, with reference to the institutional area where no construction of a residential complex is permitted in Master Plan-2025; stating the same to be an error in the Master Plan, which is contrary to Section 25 of the JDA Act. At this juncture, it will be relevant to extract para 76 to 84, which read thus:-
^^76- ekuuh; jktLFkku ljdkj }kjk iz'uxr izdj.k esa ;qDr dh jke ds vuqlkj izdj.k dk ekLVj fodkl ;kstuk 2025 t;iqj jhtu ds vuqlkj ijh{k.k fd;k x;kaA ekLVj fodkl ;kstuk 2025 ds vuqlkj mDr Hkw[k.M ,&2 esa Hkwry&izFke ry rd fufeZr Hkou dk Hkwmi;ksx laLFkkfud iz;kstukFkZ nf'kZr gSa mDr Hkw[k.M ls lacaf/kr yS.M ewy Iyku o xwxy lsVsykbV ls izkIr fp= dh izfr i=koyh ds i`"B la[;k 142]143@lh ij layXu gSA vr% i=koyh vfxze dk;Zokgh gsrq izLrqr gSA 78- Hkw[k.M la[;k ,&2] lh&Ldhe] t;iqj ds vjcu yS.M lhfyax ds laca/k esa ekuuh; egkf/koDrk jktLFkku dh jk; pkgh xbZ FkhA muds }kjk iznRr jk; 139&140@lh ij voyksduh; gS ftlesa muds }kjk jk; nh xbZ gS fd iz'uxr Hkwfe lhfyax fyfeV ds vUrxZr ugha gS blds vfrfjDr ;g Hkh jk; nh xbZ gS fd Hkou ekufp= dk ekLVj Iyku o tfoizk Hkou fofu;e ds vUrxZr fopkj fd;k tkosA 79- ekuuh; egkf/koDrk dh mijksDr jk; ds lanHkZ esa ekLVj fodkl ;kstuk 2025 ds lanHkZ esa tkap dh xbZ ftlds vUrxZr iz'uxr Hkw[k.M dk dqN Hkkx ekLvj Iyku esa laLFkkfud nf'kZr fd;k x;k gSA ekLVj fodkl ;kstuk 2025 ds ikVZ Iyku dh izfr 142 o 143@lh ij voyksduh; gSA tcfd izLrqr izdj.k esa vkoklh; iz;kstukFkZ ekufp= dk izLrko gSA izdj.k voyksdukFkZ ,oa vkns'kkFkZ izLrqr gSA
80. Dir (TP) Please examine.
81. ACTP SD/-02-11-11 STP SD/02-11-11
82. As per MDP 2025 land use map building part of the plot in shows as institution and predominant are in shown as residential. The attribute as per building land use 2007/08 it is indicated as custom office-sub-please.
83. C/F
84. As per MDP 2025 land use map the building part of the plot is shown as institutional and the rest i.e. predominant use is residential. The attribute as per existing land use 2007/08, it is indicated as Customs Office and is an error.
9. The petitioner has also referred to the noting at para 106/N by the Director, Town Planning with reference to issuance of notification under Section 25(1) of the JDA Act as well as the note made by the Commissioner, JDA and Additional Chief Secretary, Urban Development at para 109 and 110, stating them to be contrary to law. It will be relevant to extract the relevant para 106/N of the note-sheet and para 109 as well as 110, which read thus:-
^^106- d`i;k 101@,u ls vkxs dk voyksdu djsaA mijksDr iSjk esa of.kZr fcUnqvksa ds vykok yS.M ;wt ls lacaf/kr fcUnq Hkh fopkj.kh; gSA ;Fkk iz'uxr Hkw[k.M ewy :i ls vkoklh; iz;kstukFkZ vkoafVr FkkA i=koyh i`"B la[;k 16 ij A ls nf'kZr 84@,u ds dze esa mijksDr Hkwfe ekLVj Iyku ds vuqlkj vkoklh; ekurs gq, ekax i= tkjh fd;k x;k gSA ekLVj Iyku esa lgou ls Hkw[k.M dk NksVk fgLlk laLFkkxr n'kkZ;k x;k Fkk mls vkoklh; ekuk x;k gSA vr% D;k dksbZ foKfIr /kkjk 25 1 ds vUrxZr tkjh dh tkuh gS\ vr% mijksDr lHkh fcUnqvksa ;Fkk 102@,u ls 106@,u esa of.kZr ij izdj.k jkT; ljdkj dks lwpukFkZ o fn'kk&funsZ'k fn;s tkus gsrq izLrqr gSaA ,lMh @&07-12 funs'kd uxj vk;kstuk107 vk;qDr tfoizk
108. May kindly recall discussions held with you on the issue of granting approval of building plan maps on plot A-2 C-Scheme on Prithviraj Road. Brief details of the matter as brought out in the notes of ACTP (BPC) and D (TP) is available at para 101/n 0 106/n. BPC has considered applicants application as per building bye laws. However, looking to the particular location the plot matter is being submitted for kind perusal and necessary guidance of the state government.
Sd/-7/12/2-11 ACS(UDH)
109. This is a matter that does not require intervention from the State Government because the powers have been delegated to the JDA. However, since the matter is of a sensitive nature, JDA has referred it to the Government for its consideration.
110. The case is related to plot no. A-2, C-scheme Jaipur. This land is the one that originally belonged to the Maharaja Shree Ummed Mills and is very close to Statute circle.
111. The owner of the land and applicant has proposed to set up a housing estate on this land in which there will be 125 units. 24 units will be kept aside for economically weaker sections. The total area is more than 1500 square yards and the sub division of this land has already been approved by the State Government. As per current bylaws a building height of upto 30 meters is permissible after payment of betterment levy. The plans submitted by the applicant are as per the building bylaws.
112. JDA has also taken opinion of the Advocate General, which is available at 139-140/C. The advocate General has also said that permission for this construction can be given as per rules. The original land use for this plot was residential and it is proposed to be used for residential purpose itself. MUD may like to discuss this matter with JDC and the undersigned at his convenience. The proposed action is entirely within the law but looking to the particular location JDC believes that the issue may become sensitive and has submitted the file for necessary guidance of the State Government.
Sd./- PK Deb ACS, UG/14-12-11
10. The learned counsel for the petitioner questioned the very transfer of the plot in dispute, which was given on concessional rate to the first purchaser, without prior permission of the Government, and has raised grievances against the State authorities for permitting construction upto 30 meters in height of a residential complex in violation of Building Rules, 2010, which permitted only maximum Floor Area Ratio (for short as 'FAR') to the extent of 2.0, whereas the respondent number 3 and 4 were permitted to the extent of FAR 2.25. The action of the State authorities in permitting the construction upto 30 meters has been assailed, as a benefit to a private party at the cost of the State, contrary to the public interest and also at the cost of welfare of the people while State being a trustee of the public exchequer.
11. The petitioner has further made snooping allegations to the effect that respondent number 3 and 4, are influential persons close to power gallery of Rajasthan, as Shri Vaibhav Gehlot happens to be Adviser of respondent number 2. The learned counsel for the petitioner vehemently emphasized that if the illegal construction being raised, is not taken care of, the result would be unauthorized construction on account of misuse of power by the Officers of JDA, who are obliged not to allow such an illegal/unauthorized construction, and even in the event of demolition of unauthorized construction, the delinquent officers will go scot free, and fortified his submissions on the anvil of observations made by the Hon'ble Supreme Court in the case of Dr. G.N. Khajuria and Others Versus Delhi Development Authority and Others; (1995) 5 SCC 762 and Dipak Kumar Mukherjee Versus Kalkata Municipal Corporation and Others; JT 2010 (10) SC 354.
12. Respondent number 3 and 4, in response to the notice of the writ application, have submitted their counter-affidavits raising preliminary objections to the effect that the writ application, which is stated to have been filed on behalf of the citizens of Jaipur, is in fact for extraneous consideration and the petitioner is a busy body and further there is no public interest element involved therein. The construction of the residential complex, on a privately owned plot of land, involves no public interest element and the petitioner has no locus standi to maintain the writ application either in 'private' or 'public interest'. Moreover, the construction on plot A-2 commenced after obtaining all the required permissions as per law in June 2012 and the respondents have spent a huge amount of around Rs.300 crores on the project, and the projected outlay on the project is for about Rs.500 crores. Further, the writ application preferred after 11 months of obtaining the information under the Right to Information Act, 2005, and after more than 15 months, since the construction commenced, suffers with the vice of delay and laches and therefore, merits rejection at the very threshold on that count alone. Moreover, the project was approved by the JDA, and further, alternative, efficacious and speedy remedy is available under Section 83 of the JDA Act and therefore, the writ application is not sustainable on that count as well. It is further pointed out that the petitioner has misrepresented the facts and law for oblique reasons and motives. It is further pleaded that the respondent number 3 purchased the land measuring 22885 square yards (19134.81 square meters) from Maharaja Shree Umaid Mills Ltd. on 20th of August, 2010 vide a registered sale deed and submitted an application to the JDA for mutation/change of name of the land to its name, as owner of the said plot. In order to raise a residential group housing complex, the respondent submitted the building plans on 29th of March, 2011 and revised drawings on 28th of April, 2011 and 23rd June, 2011.
13. It is further pointed out that Plot A-2, C-Scheme in fact is situated at Prithviraj Road and is second plot after the New Central Revenue Buildings, which faces the Statue Circle. The respondent No. 3 after having obtained No Objection Certificate from Airport Authority on 25th of August, 2011 and having deposited the demand money for mutation to the JDA; the matter regarding the building plan was considered by the JDA and approved the building plan subject to the following conditions:-
(a) Approval for sub-division of plot A-2 from the State Government.
(b) Surrender of 4.57 meter land for widening of Road.
(c) Deposition of charges of betterment levy for the extra height and ground coverage.
(d) Provision of flats for EWS/LIG.
(e) Submission of NOC of Fire, Airport Authority and Environment Clearance.
14. The approval of the State Government in respect of the Sub Division of the plot was conveyed on 12.10.2011 and Nagar Nigam Jaipur issued NOC of fire safety for the project on 22.09.2011 with validity upto 21st of September, 2014. The State Level Environment Impact Assessment Authority also accorded environment clearance for the project on 13th of January, 2012.
15. Further, plot A-2 was shown as residential plot in Jaipur Region Master Plan 2011, but in the Master Development Plan 2025, the building constructed by Maharaja Shree Umaid Mills Ltd. on the plot, which in fact was a guest house, was indicated as Custom Office though Custom Office is situated in the adjoining plot, which is New Central Revenue Building and it is on account of this mis-description, a small miniscule patch in Plot A-2 was shown as institutional area while much larger area was shown as residential in Master Plan-2025, and this fact was specifically mentioned in the note-sheet at para 154.
16. It is further pointed out that the JDA vide Office Order dated 12.12.2012, has clarified with reference to such error in Master Plan; where there is more than one land use in a single plot, the major use, would be determinative factor, as to the land use of that plot. It is further submitted by the learned counsel for respondent number 3 that prior to release of building plan on 18th May, 2012, all the necessary compliances were duly made, including requirement of surrendering 4.57 meters of the land for the provision of EWS/LIG flats, and a sum of Rs.20,04,25,100/- was deposited towards betterment levy and other charges.
17. The learned counsel further submitted that Building Rules, 2010 applicable to Jaipur region including C-Scheme other than walled city and Vidhyadhar Nagar, governed the field. Moreover, Plot A-2 was never a plot on the Statue Circle and in fact plots on Statue Circle are (i) the plot occupied by Birla Auditorium; (ii) plot where New Central Revenue Buildings are constructed; (iii) Plot belonging to Jaipur Udyog and (iv) plot earlier known as Poddar Park.
18. The map of the area around Statue Circle also fortifies that Plot A-2 is on Prithviraj Road, and not on or around Statue Circle. The Building Rules, 2010 provides for distinction of plots on the Statue Circle and otherwise on Prithviraj Road. Regulation 8.7 of the Building Rules, 2010 makes provisions for building parameters as set out in Table-6. Under Clause (xiv) of Table-6 it has been specifically stipulated that Prithviraj Road, which is a road under Table-6, would start from 'Tonk Road Junction' to 'Chomu House' crossing and therefore, the permissible height for construction is 15 meters. The comment in respect of Clause (xiv) further makes a provision that height upto 30 meters of construction would be permissible, if the applicant paid betterment levy. At this juncture, it would be useful to extract Table-6, which reads thus:-
rkfydk ^^6**
(xiv) i`Fohjkt jksM%& Vksad jksM taD'ku ls pkSew gkml dzksflax rd 15-00 eh- rd (xxiii) LVsP;w lfdZy ds pkjksa vksj 15-00 eh- rd fBIi.kh%& dze la[;k (xiii) o (xiv) esa vafdr lMdksa ij Hkou dh WpkbZ 30 ehVj rd bl 'krZ ij vuqKs; dh tk ldsxh%& d ;fn vkosnd }kjk Vh-Mh-vkj- dk mi;ksx djuk izLrkfor gks 75 izfr'kr VhMhvkj esa lek;ksftr gksxk o 'ksz"k 25 izfr'kr uxn fy;k tk;sxk vFkok vfrfjDr WpkbZ ds fufeZr {ks=Qy ij vkoklh; mi;ksx izLrkfor gksus ij 100 :i;s izfr oxZ QhV rFkk ???kolkf;d mi;ksx izLrkfor gksus ij 200 :i;s izfr oxZ QhV vFkok vkjf{kr nj dk 25 izfr'kr tks Hkh vf/kd gks csVjesaUV ysoh ds :i esa tek djk;saA
19. The Building Rules, 2010 specifically makes provision under Clause (xxiii) for the plots facing Statue Circle where maximum height permissible would be 15 meters. The learned counsel pointing out the distinction between Clause (xiv) and Clause (xxiii) of Table-6 emphatically submitted that JDA rightly allowed construction upto 30 meters in height. The learned counsel further pointed out that on the opposite side of the project of respondent number 3, on Prithviraj Road, Hotel Park Prime has been constructed on Plot C-59 with height of 30 meters and so also another residential building 'Royal Ensign' was accorded permission for construction upto the height of 30 meters behind Poddar Park, treating the plots to be on Prithviraj Road and the buildings are in existence.
20. Assailing the allegations regarding the provisions of the Urban Land (Ceiling and Regulation) Act, 1976, the learned counsel pointed out that the State Government, against the order of the appellate authority, preferred S.B. Civil Writ Petition No. 2223 of 1997, which was dismissed by this Court vide order dated 2nd of June, 2005 on the ground that Urban Land (Ceiling and Regulation) Act, 1976 having been repealed.
21. The learned counsel for the respondent No. 3 further pointed out that the issue of permission with reference to FAR permissible only to the extent 2.00, is absolutely a misstatement, in fact FAR 2.25 has been permitted by Building Rules, 2010 as amended vide notification dated 20th of May, 2011 as detailed out in Table-3, which reads thus:-
rkfydk ^^3** xzqi gkmflax gsrq ekun.M Dze la[;k Hkw[k.M dk vkdkj vf/kdre vkPNknu U;wure lSV csd vf/kdre WpkbZ Ekud ,Q-,-vkj vf/kdre ,Q-,-vkj-
vxz Ik'oZ&A Ik'oZ&AA IhNs 1 2 3 4 5 6 7 8 9 10
-1 5000 o- ???? ls vf/kd 35 izfr'kr 15 9 9 9 8-11 ds vuqlkj 1-33 Rkkfydk ^^3** gsrq fVIi.kh%& vf/kdre vkPNkfnr {ks= 5 izfr'kr rd vfrfjDr vuqKs; fd;k tk ldsxkA vfrfjDr vkPNkfnr {ks= ij 100 :i;s izfr oxZ QhV vFkok vkjf{ks= nj dk 25 izfr'kr tks Hkh vf/kd gks dh nj ls csVjesUV ysoh yh tkosxh] ysfdu mijksDr jkf'k ekud ,Q,vkj dh fLFkfr esa vkPNkfnr {ks=Qy esa o`f) gksus ij ykxw gksxh ysfdu vf/kdre ,Q,vkj o Vh-Mh-vkj- ds mi;ksx dh fLFkfr esa csVjesUV ysoh iqu% ugha yh tkoxhA 1- ekud ,Q,vkj ls vf/kd ,Q,vkj fuEu 'krksaZ ij vuqKs; fd;k tk ldsxk%& d ;fn vkosnd }kjk Vh-Mh-vkj- dk mi;ksx djuk izLrkfor gks 75 izfr'kr VhMhvkj esa lek;ksftr gksxk o 'ks"k 25 izfr'kr uxn fy;k tk;sxk vFkok ,Q,vkj ds vUrj ds {ks=Qy ij 100 :i;s izfr oxZ QhV vFkok vkoklh; vkjf{kr nj dk 25 izfr'kr tks Hkh vf/kd gks csVjesUV ysoh ds :i esa tek djk;saA ;fn Hkou dh WpkbZ 30 eh- ls vf/kd LVhYV dks NksMdj gS rks 30 eh- ls vf/kd WpkbZ ij vfrfjDr ,Q-,-vkj- dh jkf'k 300@& :i;s izfr oxZ QhV vFkok 25 izfr'kr vkoklh; mi;ksx dh vkjf{kr nj tks Hkh vf/kd gks ns; gksxhA
22. The allegations of mala fide and favoritism, for Shri Vaibhav Gehlot being an 'Adviser' to the Group of Companies, have been emphatically countered, for want of essential material facts and particulars as well as for lack of pleadings, and for non-impleading Shri Vaibhav Gehlot as party eo-nomine to the proceedings, in order to provide an opportunity to rebut the allegations. Further, Shri Vaibhav Gehlot being 'Adviser' on retainer of the respondent Companies is being paid for the services rendered by him since year 2004, and has nothing to do with the project. The construction was being raised after fulfillment of all the requirements and approvals from the authorities concerned as per law. Thus, the petitioner is neither directly nor remotely affected by the construction being raised by respondent No.3 and has no locus standi, to file the writ application. Therefore, the writ application merits rejection at the very threshold.
23. The learned counsel in order to buttress his submissions placed reliance on the law declared by the Hon'ble Supreme Court in case of K. Ramadas Shenoy Versus The Chief Officers, Town Municipal Council, Udipi & Ors.; AIR 1974 SC 2177, Morgan Stanley Mutual Fund Versus Kartick Das; (1994) 4 SCC 225, State of Uttaranchal Versus Balwant Singh Chaufal & Ors.; (2010) 3 SCC 402, Dipal Kumar Mukherjee Versus Kolkata Municipal Corporation & Ors.; (2013) 5 SCC 336, R.K. Mittal & Ors. Versus State of Uttar Pradesh & Ors.; (2012) 2 SCC 232, V. Chandrasekaran & Anr. Versus Administrative Officer & Ors.; (2012) 12 SCC 133, Akhil Bhartiya Upbhokta Congress Versus State of M.P. & Ors., Zenit Mataplast Private Limited Versus State of Maharashtra & Ors.; (2009) 10 SCC 388 and The Municipal Corporation for Greater Bombay & Anr. Versus The Advance Builders (India) Private Ltd. & Ors.; 1971 (3) SCC 381.
24. Mr. R.N. Mathur, learned Senior Advocate, with Mr. S.S. Hora, Advocate invited attention of this Court to the contents of Paragraph 11 of the reply filed on behalf of the respondent JDA wherein the JDA has specifically pleaded that Plot A-2, which initially measured 31847 square yards, was purchased by Maharaja Shree Ummed Mill Limited from Seth Anandram Jaipuria Trust on 14th of February, 1952. The said larger Plot A-2 was sub-divided into present Plot A-2, and 3 smaller plots, and an area of 3728 square yards. A sub-divided plot out of the larger Plot A-2 was sold by Maharaja Shree Ummed Mill Limited to one M/s. Bhairon Lal Mohan Lal, 1350 square yards again the sub-divided plot of larger plot A-2, was sold to Mr. S.R. Bhandari; and 3884 square yards, again sub-divided plot of larger Plot A-2, was sold to Agency Rajasthan Private Limited. The balance area of 22885 square yards, now the balance Plot A-2 was purchased by respondent No.3 on 20th of August, 2010. The pleading of JDA in their reply, is in consonance with the counter-affidavit submitted on behalf of respondent No.3 i.e. Om Metals Consortium Pvt. Ltd. as detailed out under Paragraph (vi) at page 90 of the paper book.
25. The learned counsel further argued that the map area around the Statue Circle clearly shows that Plot A-2, is a plot on Prithviraj Road, and not on the Statue Circle as is evident from the approved master development plan vide 60th authority meeting held on 05.09.2011 (Annexure-R/17), with proposed land used as residential, in yellow colour. The learned Senior Counsel, in supported of his submissions placed reliance on the law declared by the Hon'ble Supreme Court in cases of Karnataka Rare Earth & Anr. Versus Senior Geologist, Department of Mines & Geology & Anr.; (2004) 2 SCC 783, K.D. Sharma Versus Steel Authority of India Limited & Ors.; (2008) 12 SCC 481, Amrit Lal Berry Versus Collector of Central Excise, New Delhi & Ors.; (1975) 4 SCC 714, Saraswati Industrial Syndicate Ltd. & Ors. Versus Union of India; (1974) 2 SCC 630, Mayor, Councillors and Burgesses of the Borough of New Plymouth Versus Taranaki Electric Power Board; AIR 1933 Privy Council 216, Raunaq International Ltd. Versus I.V.R. Construction Ltd. & Ors.; (1999) 1 SCC 492, State of M.P. & Ors. Versus Nandlal Jaiswal & Ors.; (1986) 4 SCC 566, Ramana Dayaram Shetty Versus International Airport Authority of India & Ors.; (1979) 3 SCC 489.
26. The learned Senior Counsel stressed that Plot A-2, is not situated on Statue Circle, may be in the neighbourhood or around, and in such a situation the burden of establishing the proposition projected, lies heavily on the petitioner who asserted that, and consequent violation of the rules on that count. To fortify his submissions, the learned counsel placed reliance on the judgment by the King's Bench Division in the case of Same Versus Same wherein it was held thus:-
The fact of these appeals therefore depends upon the answer to the question : What is the meaning of continguous to in s. 3, sub-s. 3, of the Act of 1928? Does it mean, as the Recorder of Plymouth held, touching or in contact with, or does it mean, as the other Courts have held, neighbouring or proximity to?
As to the proper meaning of the word contiguous there can, we think, be no doubt. Dr. Johnson, of whom it may probably be said that he employed the English language with a more anxious precision than any other man that ever lived, defines contiguous in his dictionary thus: Meeting so as to touch; bordering upon each other ; not separate, and he gives no other definition. The Oxford English Dictionary gives five definition. The first and principal one is : Touching, in actual contact, next in space; meeting at a common boundary, bordering, adjoining. The second and third deal only with variants of that meaning, in the application of the word, not to space, but to time and thought. The fourth refers to a use now and long obsolete. The fifth is this: loosely. Neighbouring, situated in close proximity (thought not in contact).
The truth is that the appellants in four cases (the respondents in the third) contend for the proper and exact meaning of the word. The respondents (the appellants in the third case) seek to apply the loose and inexact meaning. For the preference urged by the latter, their counsel adduced as their chief reason that the object of this Act is derating, and that in order to further that object, and bring about as much derating as possible, this meaning of the word should be accepted. We cannot think that this is an adequate reason. Another argument was hinted at, though the various counsel had not the hardihood to advance it-namely, that in the use of any language by the Legislature one should expect the loose and inexact, rather than the correct and exact. It is true that one who spends much time in this Court might be tempted in his haste to make some such assertion. But if he allowed cynicism to be tempered with sympathy for the harassed Parliamentary draftsman, he would reflect that it is only in regard to phrases of doubtful import that this Court is called upon to apply a toilsome scrutiny.
The task is pathological, and too much immersion in it may well induce oblivion of the fact that in comparison with the vast bulk of our legislation these difficult passages are rare. It ought to be the rule, and we are glad to think that it is the rule, that words are used in an Act of Parliament correctly and exactly, and not loosely and inexactly. Upon those who assert that that rule has been broken the burden of establishing their proposition lies heavily. And they can discharge it only by pointing to something in the context which goes to show that the loose and inexact meaning must be preferred.
27. Mr. Sudhir Gupta, the learned Senior Counsel for respondent JDA, reiterating the factual position as highlighted by the learned counsel for the respondent numbers 3 and 4, questioned the Locus Standi of the petitioner in initiating the writ proceedings, pointing out that judicial redress is available only to a person who has suffered the legal injury by reason of violation of his legal right or legally protected interest by the impugned action of the State as pointed out by the Hon'ble Supreme Court in case of S.P. Gupta Versus Union of India & Anr.; 1981 (Supp) SCC 87. Further, the petitioner did not lay any factual foundation to sustain his bonafide and appears to be a busy body or a meddlesome interloper, and in the instant case at hand the petitioner failed to point out any legal injury to him much less a public injury. The learned Senior Counsel further stressed that no permission in violation of the Building Rules, 2010, was accorded in favour of respondent number 3. The petitioner has made sweeping allegations against the Officers of the JDA, without specifically detailing out the material facts and particulars to substantiate the allegations against anyone, much less impleading them as party eo nominee to the writ proceedings.
28. The petitioner has not detailed out as to how and in what manner the aesthetic beauty of the city was affected, for the reason that under Paragraph 2 of the writ application, a general statement of adverse impact on civil facilities, amenities and aesthetic beauty has been made. Further, a bare perusal of Paragraph 11 of the writ application would reveal that the snooping allegations are in the realm of surmises and conjectures, without laying down any factual foundation and placing on record any material, to sustain the averments made. No material facts and particulars have been detailed out while making serious allegations of generating false note-sheets, by the authorities of JDA in the record, as pleaded under Paragraph 13 of the writ application. In substance, the writ proceedings initiated by the petitioner, in the attractive insignia 'Public Interest', is a gross misuse of the process of law. The petitioner has not disclosed his relationship with Mukesh Kumar Sharma, who sought the copies of the permissions accorded in favour of respondent number 3, under the provisions of Right to Information Act, 2005. The learned Senior Counsel further pointed out that in view of the alternative, efficacious and speedy remedy being available under Section 83 (8) of the JDA Act, the writ application deserves to be dismissed on that count alone. The learned counsel endorsing the submissions made on behalf of respondent numbers 3 and 4, with reference to Regulation 8.7 and Table-6, referred to Annexure-R/21 annexed to the reply submitted on behalf of respondent number 4, wherein area with details of measurement and details of boundaries of Plots A-1 and A-2 have been incorporated, which shows Plot A-2 on Prithviraj Road. The learned Senior Counsel also corroborated the fact that Plot A-2 is situated at Prithviraj Road, as detailed out in site plan placed on record and marked as Annexure-R/13 along with the reply filed by respondent number 4. Mr. Gupta, to fortify his submissions, he placed reliance on the law declared by the Hon'ble Supreme Court in cases of State of Orissa Versus Ram Chandra Dev; AIR 1964 SCC 685, Jasbhai Motibhai Desai Versus Roshan Kumar, Haji Bashir Ahmed & Ors.; (1976) 1 SCC 671, Balco Employees' Union (Regd.) Versus Union of India & Ors.; (2002) 2 SCC 333, Neetu Versus State of Punjab & Ors.; (2007) 10 SCC 614; State of Uttaranchal Versus Balwant Singh Chaufal & Ors.; (2010) 3 SCC 402, Kishore Samrite Versus State of Uttar Pradesh & Ors.; (2013) 2 SCC 398, Chairman & MD, BPL Ltd. Versus S.P. Gururaja & Ors.; (2003) 8 SCC 567, Bombay Dyeing & Manufacturing Co. Ltd. Versus Bombay Environmental Action Group & Ors.; (2005) 5 SCC 61, Goan Real Estate and Construction Limited & Anr. Versus People's Movement for Civic Action & Ors.; (2008) 8 SCC 645 and A.P. Housing Board Versus Adarsha Welfare Assn. & Anr.; (2007) 4 SCC 449.
29. The learned counsel pointing out the fact that the writ proceedings did not conform to the rules in relation to PIL also made a reference to Chapter XXIIA inserted vide notification No.5/S.R.O./2010 dated 30th of April, 2010, published in the Rajasthan Gazette on 6th of May, 2010, dealing with the Public Interest Litigation (PIL) generally with specific reference to 385-A, 385-B and 385-C, which reads thus:-
385-A. Public Interest Litigation (PIL) (1) The Court may take up and deal with any matter relating to a public cause or of public interest by way of a petition registered as PIL Petition in accordance with the provisions contained in this Chapter.
(2) Save as provided in this Chapter, the provisions contained in these rules in relation to the petitions under Article 226 of the Constitution of India shall generally apply to every petition registered as a PIL Petition.
385-B. PIL Petition to be heard ordinarily by a Division Bench Every matter to be taken up as PIL Petition, whether on a regular filed petition or upon a letter petition or upon suo moto cognizance, shall be separately registered as PIL Petition; and every such PIL Petition shall, unless otherwise ordered by the Chief Justice, be laid before and dealt with by a Division Bench:
Provided that any PIL Petition entertained and dealt with by a Division Bench shall ordinarily be placed before the same Bench always unless otherwise ordered by the Chief Justice.
385-C. Interim orders In any matter taken up as PIL Petition, whether on a regular filed petition or upon a letter petition or upon suo moto cognizance, it shall be permissible for the Court to pass any interim order at any stage of the proceedings against any person/authority whether specifically joined in the petition or not, as considered expedient to secure the ends of justice:
Explanation:- The Judge or Judges taking suo motu cognizance of a matter to be dealt with as PIL Petition may als pass any interim order as considered necessary looking to the given circumstances and exigencies; and such interim order shall continue to operate unless otherwise ordered by the Bench dealing with the matter after registration.
30. Shri G.S. Bapna, learned Advocate General, on behalf of the State of Rajasthan, endorsing and reiterating the stand of the learned counsel for the JDA and respondent numbers 3 and 4 pointed out that the petitioner by initiating the writ proceedings has misused the process of court and referring to the sale deed of Plot A-2 dated 2nd of October, 1944, argued that every contract is subject to the provisions of law and any action in furtherance of performance of the contract has to conform to the law in force at the relevant time and therefore, in the instant case at hand, there was no violation of any of the provisions of any law or the Building Rules, 2010 while according permission to respondent No.3 for raising construction up to the height of 30 metres.
31. We have heard the learned counsel for the parties and with their assistance perused the material available on record.
32. Before we deal with the factual matrix of the case, the various authorities cited in support of the respective submissions on behalf of the parties needs consideration and therefore, for the purpose of appreciation of the preliminary objections as to the locus standi of the petitioner, we consider it proper to take note of the law declared by the Hon'ble Supreme Court on the issue.
33. The Hon'ble Supreme Court in the case of Ram Chandra Dev (supra) held in unequivocal terms that jurisdiction of the High Court under Article 226 of Constitution of India, is undoubtedly very wide and appropriate writs can be issued by the High Court even for the purposes other than enforcement of the fundamental right. However, the concluding words under Article 226 clearly indicate that before a writ or an appropriate order can be issued, the party must establish a right and an illegal invasion or threaten invasion of that right. Thus, existence of a right is a foundation of a petition under Article 226 of the Constitution of India.
34. In the case of Jasbhai Motibhai Desai (supra), the Hon'ble Supreme Court reiterating the earlier decisions on the issue of locus-standi to invoke the extraordinary jurisdiction under Article 226 of the Constitution of India, held thus:-
34. This Court has laid down in a number of decisions that in order to have the locus standi to invoke the extraordinary jurisdiction under Article 226, an applicant should ordinarily be one who has a personal or individual right in the subject matter of the application, though (1) the case of some of the writs like habeas corpus or quo warranto this rule is relaxed or modified. In other words, as a general rule, in fringement of some legal right or prejudice to some legal interest in hearing the petitioner is necessary to give him a locus standi in the matter see The State of orissa v. Madan Gopal Rungta(4); Calcutta . Gas Co. v. The State of West Bengal(5); Ram Umeshwari Suthoo v. Member, Board of Revenue, orissa(6); Gadda Venkateshwara Rao v. Government of Andhra Pradesh(7); State of orissa v. Rajasaheb Chandanmall(8); Dr. Satyanarayana Sinha v. M/s. S. Lal & Co.(9)].
37. It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories: (i) 'person aggrieved'; (ii) 'stranger'; (iii) busybody or meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect. They indulge in the pastime of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spoking the wheels of administration. The High Court should do well to reject the applications of such busybodies at the threshold.
38. The distinction between the first and second categories of applicants, though real, is not always well-demarcated. The first category has, as it were, two concentric zones; a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly stand in the category of 'persons aggrieved'. In the grey outer-circle the bounds which separate the first category from the second, intermix, interfuse and overlap increasingly in a centrifugal direction. All persons in this outerzone may not be "persons aggrieved.
35. A larger bench of seven Judges of the Hon'ble Supreme Court in the case of S.P. Gupta (supra) again examined the traditional rules with reference to locus-standi and observed thus:-
14. The traditional rule in regard to locus standi is that judicial redress is available only to a person who has suffered a legal injury by reason of violation of his legal right or legally protected interest by the impugned action of the State or a public authority or any other person or who is likely to suffer a legal injury by reason of threatened violation of his legal right or legally protected interest by any such action. The basis of entitlement to judicial redress is personal injury to property, body, mind or reputation arising from violation, actual or threatened, of the legal right or legally protected interest of the person seeking such redress. This is a rule of ancient vintage and it arose during an era when private law dominated the legal scene and public law had not yet been born. The leading case in which this rule was enunciated and which marks the starting point of almost every discussion on locus standi is Re Sidebotham, Ex parte Sidebotham [14] Ch. 453 : 42 LT 783 : 28 WR 715 (CA)). There the Court was concerned with the question whether the appellant could be said to be a 'person aggrieved' so as to be entitled to maintain the appeal. The Court in a unanimous view held that the appellant was not entitled to maintain the appeal because he was not a 'person aggrieved' by the decision of the lower court. James L. J. gave a definition of 'person aggrieved' which, though given in the context of the right to appeal against a decision of a lower court, has been applied widely in determining the standing of a person to seek judicial redress, with the result that it has stultified the growth of the law in regard to judicial remedies. The learned Lord Justice said that a 'person aggrieved' must be a man "who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something". This definition was approved by Lord Esher M. R. in In re Reed, Bowen & Co., Ex parte Official Receiver (19 QBD 174 : 56 LT 876 : 35 WR 660 (CA)) and the learned Master of the Rolls made it clear that when James L. J. said that a person aggrieved must be a man against whom a decision has been pronounced which has wrongfully refused him of something, he obviously meant that the person aggrieved must be a man who has been refused something which he had a right to demand. There have been numereous subsequent decisions of the English courts where this definition has been applied for the purpose of determining whether the person seeking judicial redress had locus standi to maintain the action. It will be seen that, according to this rule, it is only a person who has suffered a specific legal injury by reason of actual or threatened violation of his legal right or legally protected interest who can bring an action for judicial redress. Now obviously where an applicant has a legal right or a legally protected interest, the violation of which would result in legal injury to him, there must be a corresponding duty owed by the other party to the applicant. This rule in regard to locus standi thus postulates a right-duty pattern which is commonly to be found in private law litigation. But, narrow and rigid though this rule may be, there are a few exceptions to it which have been evolved by the courts over the years.
36. Their Lordships examining the various issues as to legal wrong or legal injury, bona fide and sufficient interest while initiating an action for redressal held thus:-
17. It may therefore now be taken as well established that where a legal wrong or a legal injury is caused to a person or to a determinate class of person by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case of breach of any fundamental right of such person or determinate class of persons, in this Court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of person. Where the weaker sections of the community are concerned, such as under-trial prisoners languishing in jails without a trial, inmates of the Protective Home in Agra, or Harijan workers engaged in road construction in the district of Ajmer, who are living in poverty and destitution, who are barely eking out a miserable existence with their sweat and toil, who are helpless victims of an exploitative society and who do not have easy access to justice, this Court will not insist on a regular writ petition to be filed by the public-spirited individual espousing their cause and seeking relief for them. This Court will readily respond even to a letter addressed by such individual acting pro bono publico. It is true that there are rules made by this Court prescribing the procedure for moving this Court for relief under Article 32 and they require various formalities to be gone through by a person seeking to approach this Court. But it must not be forgotten that procedure is but a handmaiden of justice and the cause of justice can never be allowed to be thwarted by any procedural technicalities. The court would therefore unhesitatingly and without the slightest qualms of conscience cast aside the technical rules of procedure in the exercise of its dispensing power and treat the letter of the public-minded individual as a writ petition and act upon it. Today a vast revolution is taking place in the judicial process; the theatre of the law is fast changing and the problems of the poor are coming to the forefront. The court has to innovate new methods and devise new strategies for the purpose of providing access to justice to large masses of people who are denied their basic human rights and to whom freedom and liberty have no meaning. The only way in which this can be done is by entertaining writ petitions and even letters from public spirited individuals seeking judicial redress for the benefit of persons who have suffered a legal wrong or a legal injury or whose constitutional or legal right has been violated but who by reason of their poverty or socially or economically disadvantaged position are unable to approach the court for relief. It is in this spirit that the court has been entertaining letters for judicial redress and treating them as writ petitions and we hope and trust that the High Courts of the country will also adopt this pro-active, goal oriented approach. But we must hasten to make it clear that the individual who moves the court for judicial redress in cases of this kind must be acting bona fide with a view to vindicating the cause of justice and it he is acting for personal gain or private profit or out of political motivation or other oblique consideration, the court should not allow itself to be activated at the instance of such person and must reject his application at the threshold, whether it be in the form of a letter addressed to the court or even in the form of a regular writ petition filed in court. We may also point out that as a matter of prudence and not as a rule of law, the court may confine this strategic exercise of jurisdiction to cases where legal wrong or legal injury is caused to a determinate class or group of persons or the constitutional or legal right or such determinate class or group of persons is violated and as far as possible, not entertain cases off individual wrong or injury at the instance of a third party, where there is an effective legal-aid organisation which can take care of such cases.
18. The types of cases which we have dealt with so far for the purpose of considering the question of locus standi are those where there is a specific legal injury either to the applicant or to some other person or persons for whose benefit the action is brought, arising from violation of some constitutional or legal right or legally protected interest. What is complained of in these cases is a specific legal injury suffered by a person or a determinate class or group of persons. But there may be cases where the State or a public authority may act in violation of a constitutional or statutory obligation or fail to carry out such obligation, resulting in injury to public interest or what may conveniently be termed as public injury as distinguished from private injury. Who would have standing to complain against such act or omission of the State or public authority? Can any member of the public sue for judicial redress? Or is the standing limited only to a certain class of persons ? Or is there no one who can complain and the public injury must go unredressed? To answer these questions it is first of all necessary to understand what is the true purpose of the judicial function. This is what Prof. Thio states in his book on Locus Standi and Judicial Review:
Is the judicial function primarily aimed at preserving legal order by confining the legislative and executive organs of government within their powers in the interest of the public (jurisdiction de droit objectif) or is it mainly directed towards the protection of private individuals by preventing illegal encroachments on their individual rights (jurisdiction de droit subjectif)? The first contention rests on the theory that courts are the final arbiters of what is legal and illegal.... Requirements of locus standi are therefore unnecessary in this case since they merely impede the purpose of the function as conceived here. On the other hand, where the prime aim of the judicial process is to protect individual rights its concern with the regularity to law and administration is limited to the extent that individual rights are infringed.
We would regard the first proposition as correctly setting out the nature and purpose of the judicial function, as it is essential to the maintenance of the rule of law that every organ of the State must act within the limits of its power and carry out the duty imposed upon it by the Constitution or the law. If the State or any public authority acts beyond the scope of its power and thereby causes a specific legal injury to a person or to a determinate class or group of persons, it would be a case of private injury actionable in the manner discussed in the preceding paragraphs. So also if the duty is owned by the State or any public authority to a person or to a determinate class or group of persons, it would give rise to a corresponding right in such person or determinate class or group of persons and they would be entitled to maintain an action for judicial redress. But if no specific legal injury is caused to a person or to a determinate class or group of persons by the act only to public interest, the question arises as to who can maintain an action for vindicating the rule of law and setting aside the unlawful action or enforcing the performance of the public duty. If no one can maintain an action for redress of such public wrong or public injury, it would be disastrous for the rule of law, for it would be open to the State or a public authority to act with impunity beyond the scope of its power or in breach of a public duty owed by it. The courts cannot countenance such a situation where the observance of the law is left to the sweet will of the authority bound by it, without any redress if the law is contravened. The view has therefore been taken by the courts in many decisions that whenever there is a public wrong or public injury caused by an act or omission of the State or a public authority which is contrary to the Constitution or the law, any member of the public acting bona fide and having sufficient interest can maintain an action for redressal of such public wrong or public injury. The strict rule of standing which insists that only a person who has suffered a specific legal injury can maintain an action for judicial redress in relaxed and a broad rule is evolved which gives standing to any member of the public who is not a mere busybody or a meddlesome interloper but who has sufficient interest in the proceeding. There can be no doubt that the risk of legal action against the State or a public authority by any citizen will induce the State or such public authority to act with greater responsibility and care thereby improving the administration of justice. Lord Diplock rightly said in Rex v. Inland Revenue Commissioners [1982] A.C. 617, 740):
It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a single public-spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law get the unlawful conduct stopped..... It is not, in my view, a sufficient answer to say that judicial review of the actions of officers or departments of Central Government is unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge.
This broadening of the rule of locus standi has been largely responsible for the development public law, because it is only the availability of judicial remedy for enforcement which invests law with meaning and purpose or else the law would remain merely a paper parchment, a teasing illusion and a promise of unreality. It is only by liberalising the rule of locus standi that it is possible to effectively police the corridors of power and prevent violations of law. It was pointed out by Schwartz and H. W. R. Wade in their Book on Legal Control of Government at page 354:
Restrictive rules about standing are in general inimical to a healthy system of administrative law. If a plaintiff with a good case is turned away, merely because he is not sufficiently affected personally, that means that some government agency is left free to violate the law, and that is contrary to the public interest. Litigants are unlikely to expend their time and money unless they have some real interest at stake. In the rare cases where they wish to sue merely out of public spirit, why should they be discouraged?
It is also necessary to point out that if no one can have standing to maintain an action for judicial redress in respect of a public wrong or public injury, not only will the cause of legality suffer but the people not having any judicial remedy to redress such public wrong or public injury may turn to the street and in that process, the rule of law will be seriously impaired. It is absolutely essential that the rule of law must wean the people away from the lawless street and win them for the court of law.
19. There is also another reason why the rule of locus standi need to be liberalised. Today we find that law is being increasingly used as a device of organised social action for the purpose of bringing about socio-economic change. The task of national reconstruction upon which we are engaged has brought about enormous increase in developmental activities and law is being utilised for the purpose of development, social and economic. It is creating more and more a new category of rights in favour of large sections of people and imposing a new category of duties on the State and the public officials with a view to reaching social justice to the common man. Individual rights and duties are giving place to meta-individual, collective, social rights and duties of classes or groups of persons. This is not to say that individual rights have ceased to have a vital place in our society but it is recognised that these rights are practicably meaningless in today's setting unless accompanied by the social rights necessary to make them effective and really accessible to all. The new social and economic rights which are sought to be created in pursuance of the Directive Principles of State Policy essentially require active intervention of the State and other public authorities. Amongst these social and economic rights are freedom from indigency, ignorance and discrimination as well as the right to a healthy environment, to social security and to protection from financial, commercial, corporate or even governmental oppression. More and more frequently the conferment of these socio-economic rights and imposition of public duties on the State and other authorities for taking positive action generates situations in which a single human action can be beneficial or prejudicial to a large number of people, thus making entirely inadequate the traditional scheme of litigation as merely a two-party affair. For example, the discharge of effluent in a lake or river may harm all who want to enjoy its clean water; emission of noxious gas may cause injury to large numbers of people who inhale it along with the air; defective or unhealthy packaging may cause damage to all consumers of goods and so also illegal raising of railway or bus fares may affect the entire public which wants to use the railway or bus as a means of transport. In cases of this kind it would not be possible to say that any specific legal injury is caused to an individual or to a determinate class or group of individuals. What results in such cases is public injury and it is one of the characteristics of public injury that the act or acts complained of cannot necessarily be shown to affect the rights of determinate or identifiable class or group of persons : Public injury is an injury to an indeterminate class of persons. In these cases the duty which is breached giving rise to the injury is owed by the State or a public authority not to any specific or determinate class or group of persons, but to the general public. In other words, the duty is one which is not correlative to any individual rights. Now if breach of such public duty were allowed to go unredressed because there is no one who has received a specific legal injury or who was entitled to participate in the proceedings pertaining to the decision relating to such public duty, the failure to perform such public duty would go unchecked and it would promote disrespect for the rule of law. It would also open the door for corruption and inefficiency because there would be no check on exercise of public power except what may be provided by the political machinery, which at best would be above to exercise only a limited control and at worst, might become a participant in misuse or abuse of power. It would also make the new social collective rights and interests created for the benefit of the deprived sections of the community meaningless and ineffectual.
20. Now, as pointed out by Cappelletti in Volume III of his classic work on Access to Justice at page 520, "The traditional doctrine of standing (legitimatio ad causam) attributes the right to sue either to the private individual who 'holds' the right which is in need of judicial protection or in case of public rights, to the State itself, which sues in courts through its organs." The principle underlying the traditional rule of standing is that only the holder of the right can sue and it is therefore, held in many jurisdictions that since the State representing the public is the holder of the public rights, it alone can sue for redress of public injury or vindication of public interest. It is on this principle that in the United Kingdom, the Attorney-General is entrusted with the function of enforcing due observance of the law. The Attorney-General represents the public interest in its entirety and as pointed out by S. A. de Smith in Judicial Review of Administrative Action (Third Edition) at page 403, "the general public has an interest in seeing that the law is obeyed and for this purpose, the Attorney-General represents the public". There is, therefore, a machinery in the United Kingdom for judicial redress for public injury and protection of social, collective, what Cappelletti calls 'diffuse' rights and interest. We have no such machinery here. We have undoubtedly an Attorney-General as also Advocates General in the States, but they do not represent the public interest generally. They do so in a very limited field; see Section 91 and 92 of the Code of Civil Procedure, 1908. But, even if we had a provision empowering the Attorney-General or the Advocate General to take action for vindicating public interest, I doubt very much whether it would be effective. The Attorney-General or the Advocate General would be too dependent upon the political branches of government to act as an advocate against abuses which are frequently generated or at least tolerated by political and administrative bodies. Be that as it may, the fact remains that we have no such institution in our country and we have therefore to liberalise the rule of standing in order to provide judicial redress for public injury arising from breach of public duty or form other violation of the Constitution or the law. If public duties are to be enforced and social collective 'diffused' rights and interests are to be protected, we have to utilise the initiative and zeal of public-minded persons and organisations by allowing them to move the court and act for a general or group interest, even though, they may not be directly injured in their own rights. It is for this reason that in public interest litigation - litigation undertaken for the purpose of redressing public injury, enforcing public duty, protecting social, collective, 'diffused' rights and interests or vindicating public interest, any citizen who is acting bona fide and who has sufficient interest has to be accorded standing. What is sufficient interest to give standing to a member of the public would have to be determined by the occur in each individual case. It is not possible for the court to lay down any hard and fast rule or any strait-jacket formula for the purpose of defining or delimiting 'sufficient interest'. It has necessarily to be left to the discretion of the court. The reason is that in a modern complex society which is seeking to bring about transformation of its social and economic structure and trying to reach social justice to the vulnerable sections of the people by creating new social, collective 'diffuse' rights and interests and imposing new public duties on the State and other public authorities, infinite number of situations are bound to arise which cannot be imprisoned in a rigid mould or a procrustean formula. The judge who has the correct social perspective and who is on the same wavelength as the Constitution will be able to decide, without any difficulty and in consonance with the constitutional objectives, whether a member of the public moving the court in a particular case has sufficient interest to initiate the action.
37. The Hon'ble Supreme Court sounded a note of caution to be careful and the bona fide of the member of public who approaches the Court must be thoroughly scrutinized and held thus:-
24. But we must be careful to see that the member of the public, who approaches the court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective. Andre Rabie has warned that "political pressure groups who could not achieve their aims though the administrative process "and we might add, thorough the political process," may try to use the courts to further their aims". These are some of the dangers in public interest litigation which the court has to be careful to avoid. It is also necessary for the court to bear in mind that there is a vital distinction between locus standi and justifiability and it is not every default on the part of the State or a public authority that is justiciable. The court must take care to see that it does not overstep the limits of its judicial function and trespass into areas which are reserved to the Executive and the Legislature by the Constitution. It is a fascinating exercise for the court to deal with public interest litigation because it is a new jurisprudence which the court is evolving, a jurisprudence which demands judicial statesmanship and high creative ability. The frontiers of public law are expanding far and wide and new concepts and doctrines which will change the complexion of the law and which were so far as embedded in the womb of the future, are beginning to be born.
38. In the case of Balco Employees' Union (Regd.) (supra), the Hon'ble Supreme Court commenting upon the feeling developing that public interest litigation is now tending to become publicity interest litigation or private interest litigation highlighted the intend and object of the innovated litigation, which was available only to a person acting bonafide and having sufficient interest and further who approached the Court to wipe out the tears of poor and needy observing thus:-
77. Public Interest Litigation, or PIL as it is more commonly known, entered the Indian judicial process in 1970. It will not be incorrect to say that it is primarily the judges who have innovated this type of litigation as there was a dire need for it. At that stage, it 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. PIL was not meant to be adversarial in nature and was to be a cooperative and collaborative effort of the parties and the Court so as to secure justice for the poor and the weaker sections of the community who were not in a position to protect their own interests. Public Interest Litigation was intended to mean nothing more than what words themselves said viz., 'litigation in the interest of the public'.
78. While PIL initially was invoked mostly in cases connected with the relief to the people and the weaker sections of the society and in areas where there was violation of human rights under Article 21, but with the passage of time, petitions have been entertained in other spheres. Prof. S.B. Sathe has summarised the extent of the jurisdiction which has now been exercised in following words:-
"PIL may, therefore, be described as satisfying one or more of the following parameters. These are not exclusive but merely descriptive:
- Where the concerns underlying a petition are not individualist but are shared widely by a large number of people (bonded labour, undertrial prisoners, prison inmates).
- Where the affected persons belong to the disadvantaged sections of society (women, children, bonded labour, unorganised labour etc.).
- Where judicial law making is necessary to avoid exploitation (inter-country adoption, the education of the children of the prostitutes).
- Where judicial intervention is necessary for the protection of the sanctity of democratic institutions (independence of the judiciary, existence of grievances redressal forums).
- Where administrative decisions related to development are harmful to the environment and jeopardize people's to natural resources such as air or water".
79. There is, in recent years, a feeling which is not without any foundation that Public Interest Litigation is now tending to become publicity interest litigation or private interest litigation and has a tendency to be counter-productive.
80. PIL is not a pill or a panacea for all wrongs. It was essentially meant to protect basic human rights of the weak and the disadvantaged and was a procedure which was innovated where a public spirited person files a petition in effect on behalf of such persons who on account of poverty, helplessness or economic and social disabilities could not approach the Court for relief. There have been, in recent times, increasingly instances of abuse of PIL. Therefore, there is a need to re-emphasize the parameters within which PIL can be resorted to by a Petitioner and entertained by the Court. This aspect has come up for consideration before this Court and all we need to do is to recapitulate and re-emphasize the same.
39. Reiterating the view in the case of Neetu (supra), the Hon'ble Apex Court declared in unequivocal terms 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.
40. In the case of Balwant Singh Chaufal (supra), the Hon'ble Supreme Court examining different definitions of the public interest litigation in various countries also examined the evolution of public interest litigation and observed thus:-
25. Public Interest Litigation has been defined in the Black's Law Dictionary (6th Edition) as under:-
"Public Interest - Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, state or national government...."
26. Advanced Law Lexicon has defined `Public Interest Litigation' as under:-
"..The expression `PIL' means a legal action initiated in a Court of law for the enforcement of public interest or general interest in which the public or a class of the community has pecuniary interest or some interest by which their legal rights or liabilities are affected."
27. The Council for Public Interest Law set up by the Ford Foundation in USA defined "public interest litigation" in its report of Public Interest Law, USA, 1976 as follows:
"10.....Public Interest Law is the name that has recently been given to efforts provide legal representation to previously unrepresented groups and interests. Such efforts have been undertaken in the recognition that ordinary market place for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups and interests include the proper environmentalists, consumers, racial and ethnic minorities and others." (M/s Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra & Ors. - AIR 2008 SC 913, para 19).
28. This court in People's Union for Democratic Rights & Others v. Union of India & Others (1982) 3 SCC 235 defined `Public Interest Litigation' and observed that the "Public interest litigation is a cooperative or collaborative effort by the petitioner, the State of public authority and the judiciary to secure observance of constitutional or basic human rights, benefits and privileges upon poor, downtrodden and vulnerable sections of the society".
41. Their Lordships in the case of Balwant Singh Chaufal (supra) realizing the abuse of public interest litigation observed that when genuine and bona fide public interest litigation must be encouraged whereas frivolous public interest litigation should be discouraged. Examining the entire issue scrutinized the issue of malice of frivolous and vexatious petitions, their Lordships held thus:-
143. Unfortunately, of late, it has been noticed that such an important jurisdiction which has been carefully carved out, created and nurtured with great care and caution by the courts, is being blatantly abused by filing some petitions with oblique motives. We think time has come when genuine and bona fide public interest litigation must be encouraged whereas frivolous public interest litigation should be discouraged. In our considered opinion, we have to protect and preserve this important jurisdiction in the larger interest of the people of this country but we must take effective steps to prevent and cure its abuse on the basis of monetary and non-monetary directions by the courts.
144. In BALCO Employees' Union (Regd.) v. Union of India & Others AIR 2002 SC 350, this Court recognized that there have been, in recent times, increasing instances of abuse of public interest litigation. Accordingly, the court has devised a number of strategies to ensure that the attractive brand name of public interest litigation should not be allowed to be used for suspicious products of mischief. Firstly, the Supreme Court has limited standing in PIL to individuals "acting bonafide." Secondly, the Supreme Court has sanctioned the imposition of "exemplary costs" as a deterrent against frivolous and vexatious public interest litigations. Thirdly, the Supreme Court has instructed the High Courts to be more selective in entertaining the public interest litigations.
145. In S. P. Gupta's case (supra), this Court has found that this liberal standard makes it critical to limit standing to individuals "acting bona fide. To avoid entertaining frivolous and vexatious petitions under the guise of PIL, the Court has excluded two groups of persons from obtaining standing in PIL petitions. First, the Supreme Court has rejected awarding standing to "meddlesome interlopers". Second, the Court has denied standing to interveners bringing public interest litigation for personal gain.
146. In Chhetriya Pardushan Mukti Sangharsh Samiti (supra), the Court withheld standing from the applicant on grounds that the applicant brought the suit motivated by enmity between the parties.
147. Thus, the Supreme Court has attempted to create a body of jurisprudence that accords broad enough standing to admit genuine PIL petitions, but nonetheless limits standing to thwart frivolous and vexations petitions. The Supreme Court broadly tried to curtail the frivolous public interest litigation petitions by two methods - one monetary and second, non-monetary.
148. The first category of cases is that where the court on filing frivolous public interest litigation petitions, dismissed the petitions with exemplary costs. In Neetu v. State of Pubjab & Others AIR 2007 SC 758, the Court concluded that it is necessary to impose exemplary costs to ensure that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the Courts.
149. In S.P. Anand v. H.D. Deve Gowda & Others AIR 1997 SC 272, the Court warned that it is of utmost importance that those who invoke the jurisdiction of this Court seeking a waiver of the locus standi rule must exercise restraint in moving the Court by not plunging in areas wherein they are not well-versed.
150. In Sanjeev Bhatnagar v. Union of India & Others AIR 2005 SC 2841, this Court went a step further by imposing a monetary penalty against an Advocate for filing a frivolous and vexatious PIL petition. The Court found that the petition was devoid of public interest, and instead labelled it as "publicity interest litigation." Thus, the Court dismissed the petition with costs of Rs.10,000/-.
151. Similarly, in Dattaraj Nathuji Thaware v. State of Maharashtra & Others (2005) 1 SCC 590, the Supreme Court affirmed the High Court's monetary penalty against a member of the Bar for filing a frivolous and vexatious PIL petition. This Court found that the petition was nothing but a camouflage to foster personal dispute. Observing that no one should be permitted to bring disgrace to the noble profession, the Court concluded that the imposition of the penalty of Rs.25,000 by the High Court was appropriate. Evidently, the Supreme Court has set clear precedent validating the imposition of monetary penalties against frivolous and vexatious PIL petitions, especially when filed by Advocates.
152. This Court, in the second category of cases, even passed harsher orders. In Charan Lal Sahu & Others v. Giani Zail Singh & Another AIR 1984 SC 309, the Supreme Court observed that, "we would have been justified in passing a heavy order of costs against the two petitioners" for filing a "light-hearted and indifferent" PIL petition. However, to prevent "nipping in the bud a well-founded claim on a future occasion," the Court opted against imposing monetary costs on the petitioners." In this case, this Court concluded that the petition was careless, meaningless, clumsy and against public interest. Therefore, the Court ordered the Registry to initiate prosecution proceedings against the petitioner under the Contempt of Courts Act. Additionally, the court forbade the Registry from entertaining any future PIL petitions filed by the petitioner, who was an advocate in this case.
153. In J. Jayalalitha v. Government of Tamil Nadu & Others (1999) 1 SCC 53, this court laid down that public interest litigation can be filed by any person challenging the misuse or improper use of any public property including the political party in power for the reason that interest of individuals cannot be placed above or preferred to a larger public interest.
154. This court has been quite conscious that the forum of this court should not be abused by any one for personal gain or for any oblique motive. In BALCO (supra), this court held that the jurisdiction is being abused by unscrupulous persons for their personal gain. Therefore, the court must take care that the forum be not abused by any person for personal gain.
155. In Dattaraj Nathuji Thaware (supra), this court expressed its anguish on misuse of the forum of the court under the garb of public interest litigation and observed that the 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. It is to be used as an effective weapon in the armoury of law for delivering social justice to the citizens. The court must not allow its process to be abused for oblique considerations.
156. In Thaware's case (supra), the Court encouraged the imposition of a non-monetary penalty against a PIL petition filed by a member of the bar. The Court directed the Bar Councils and Bar Associations to ensure that no member of the Bar becomes party as petitioner or in aiding and/or abetting files frivolous petitions carrying the attractive brand name of Public Interest Litigation. This direction impels the Bar Councils and Bar Associations to disbar members found guilty of filing frivolous and vexatious PIL petitions.
157. In Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra & Others AIR 2008 SC 913, this Court observed as under:
`10....12. It is depressing to note that on account of such trumpery proceedings initiated before the Courts, innumerable days are wasted, the time which otherwise could have been spent for disposal of cases of the genuine litigants. Though we spare no efforts in fostering and developing the laudable concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy, whose fundamental rights are infringed and violated and whose grievances go unnoticed, un-represented and unheard; yet we cannot avoid but express our opinion that while genuine litigants with legitimate grievances relating to civil matters involving properties worth hundreds of millions of rupees and criminal cases in which persons sentenced to death facing gallows under untold agony and persons sentenced to life imprisonment and kept in incarceration for long years, persons suffering from undue delay in service matters -government or private, persons awaiting the disposal of cases wherein huge amounts of public revenue or unauthorized collection of tax amounts are locked up, detenu expecting their release from the detention orders etc. etc. are all standing in a long serpentine queue for years with the fond hope of getting into the Courts and having their grievances redressed, the busybodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either of themselves or as a proxy of others or for any other extraneous motivation or for glare of publicity break the queue muffing their faces by wearing the mask of public interest litigation and get into the Courts by filing vexatious and frivolous petitions and thus criminally waste the valuable time of the Courts and as a result of which the queue standing outside the doors of the Courts never moves, which piquant situation creates frustration in the minds of the genuine litigants and resultantly they loose faith in the administration of our judicial system."
158. The Court cautioned by observing 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. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens. 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 publicity oriented or founded on personal vendetta ...
15. The Court has to be satisfied about (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike balance between two conflicting interests; (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature. The Court has to act ruthlessly while dealing with imposters and busybodies or meddlesome interlopers impersonating as public-spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of Pro Bono Publico though they have no interest of the public or even of their own to protect."
159. The malice of frivolous and vexatious petitions did not originate in India. The jurisprudence developed by the Indian judiciary regarding the imposition of exemplary costs upon frivolous and vexatious PIL petitions is consistent with jurisprudence developed in other countries. U.S. Federal Courts and Canadian Courts have also imposed monetary penalties upon public interest claims regarded as frivolous. The courts also imposed non-monetary penalties upon Advocates for filing frivolous claims. In Everywoman's Health Centre Society v. Bridges 54 B.C.L.R. (2nd Edn.) 294, the British Columbia Court of Appeal granted special costs against the Appellants for bringing a meritless appeal.
42. In a recent pronouncement, the Hon'ble Supreme Court in the case of Kishore Samrite (supra) dealt with the issue of abuse of process of court as well as the issue of locus-standi and observed:-
29. Now, we shall deal with the question whether both or any of the Petitioners in Civil Writ Petition Nos. 111/2011 and 125/2011 are guilty of suppression of material facts, not approaching the Court with clean hands, and thereby abusing the process of the Court. Before we dwell upon the facts and circumstances of the case in hand, let us refer to some case laws which would help us in dealing with the present situation with greater precision. The cases of abuse of the process of court and such allied matters have been arising before the Courts consistently. This Court has had many occasions where it dealt with the cases of this kind and it has clearly stated the principles that would govern the obligations of a litigant while approaching the court for redressal of any grievance and the consequences of abuse of the process of court. We may recapitulate and state some of the principles. It is difficult to state such principles exhaustively and with such accuracy that would uniformly apply to a variety of cases. These are:
(i) Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the Courts, initiated proceedings without full disclosure of facts and came to the courts with 'unclean hands'. Courts have held that such litigants are neither entitled to be heard on the merits of the case nor entitled to any relief.
(ii) The people, who approach the Court for relief on an ex parte statement, are under a contract with the court that they would state the whole case fully and fairly to the court and where the litigant has broken such faith, the discretion of the court cannot be exercised in favour of such a litigant.
(iii) The obligation to approach the Court with clean hands is an absolute obligation and has repeatedly been reiterated by this Court.
(iv) Quests for personal gains have become so intense that those involved in litigation do not hesitate to take shelter of falsehood and misrepresent and suppress facts in the court proceedings. Materialism, opportunism and malicious intent have over-shadowed the old ethos of litigative values for small gains.
(v) A litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief, interim or final.
(vi) The Court must ensure that its process is not abused and in order to prevent abuse of the process the court, it would be justified even in insisting on furnishing of security and in cases of serious abuse, the Court would be duty bound to impose heavy costs.
(vii) Wherever a public interest is invoked, the Court must examine the petition carefully to ensure that there is genuine public interest involved. The stream of justice should not be allowed to be polluted by unscrupulous litigants.
(viii) The Court, especially the Supreme Court, has to maintain strictest vigilance over the abuse of the process of court and ordinarily meddlesome bystanders should not be granted "visa". Many societal pollutants create new problems of unredressed grievances and the Court should endure to take cases where the justice of the lis well-justifies it.
[Refer:Dalip Singh v. State of U.P. and Ors.: (2010) 2 SCC 114;Amar Singh v. Union of India and Ors.: (2011) 7 SCC 69 andState of Uttaranchal v. Balwant Singh Chaufal and Ors.: (2010) 3 SCC 402].
30. Access jurisprudence requires Courts to deal with the legitimate litigation whatever be its form but decline to exercise jurisdiction, if such litigation is an abuse of the process of the Court. InP.S.R. Sadhanantham v. Arunachalam and Anr.: (1980) 3 SCC 141, the Court held:
15. The crucial significance of access jurisprudence has been best expressed by Cappelletti:
The right of effective access to justice has emerged with the new social rights. Indeed, it is of paramount importance among these new rights since, clearly, the enjoyment of traditional as well as new social rights presupposes mechanisms for their effective protection. Such protection, moreover, is best assured be a workable remedy within the framework of the judicial system. Effective access to justice can thus be seen as the most basic requirement the most basic 'human-right' of a system which purports to guarantee legal rights.
16. We are thus satisfied that the bogey of busybodies blackmailing adversaries through frivolous invocation of Article136is chimerical. Access to justice to every bona fide seeker is a democratic dimension of remedial jurisprudence even as public interest litigation, class action, pro bono proceedings, are. We cannot dwell in the home of processual obsolescence when our Constitution highlights social justice as a goal. We hold that there is no merit in the contentions of the writ Petitioner and dismiss the petition.
31. It has been consistently stated by this Court that the entire journey of a Judge is to discern the truth from the pleadings, documents and arguments of the parties, as truth is the basis of the Justice Delivery System.
32. With the passage of time, it has been realised that people used to feel proud to tell the truth in the Courts, irrespective of the consequences but that practice no longer proves true, in all cases. The Court does not sit simply as an umpire in a contest between two parties and declare at the end of the combat as to who has won and who has lost but it has a legal duty of its own, independent of parties, to take active role in the proceedings and reach at the truth, which is the foundation of administration of justice. Therefore, the truth should become the ideal to inspire the courts to pursue. This can be achieved by statutorily mandating the Courts to become active seekers of truth. To enable the courts to ward off unjustified interference in their working, those who indulge in immoral acts like perjury, prevarication and motivated falsehood, must be appropriately dealt with. The parties must state forthwith sufficient factual details to the extent that it reduces the ability to put forward false and exaggerated claims and a litigant must approach the Court with clean hands. It is the bounden duty of the Court to ensure that dishonesty and any attempt to surpass the legal process must be effectively curbed and the Court must ensure that there is no wrongful, unauthorised or unjust gain to anyone as a result of abuse of the process of the Court. One way to curb this tendency is to impose realistic or punitive costs.
33. The party not approaching the Court with clean hands would be liable to be non-suited and such party, who has also succeeded in polluting the stream of justice by making patently false statements, cannot claim relief, especially under Article136of the Constitution. While approaching the court, a litigant must state correct facts and come with clean hands. Where such statement of facts is based on some information, the source of such information must also be disclosed. Totally misconceived petition amounts to abuse of the process of the court and such a litigant is not required to be dealt with lightly, as a petition containing misleading and inaccurate statement, if filed, to achieve an ulterior purpose amounts to abuse of the process of the court. A litigant is bound to make "full and true disclosure of facts". (Refer:Tilokchand H.B. Motichand and Ors. v. Munshi and Anr.: 1969 (1) SCC 110];A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam and Anr.: (2012) 6 SCC 430];Chandra Shashi v. Anil Kumar Verma: (1995) 1 SCC 421];Abhyudya Sanstha v. Union of India and Ors.: (2011) 6 SCC 145];State of Madhya Pradesh v. Narmada Bachao Andolan and Anr.: (2011) 7 SCC 639];Kalyaneshwari v. Union of India and Anr.: (2011) 3 SCC 287)].
34. The person seeking equity must do equity. It is not just the clean hands, but also clean mind, clean heart and clean objective that are the equi-fundamentals of judicious litigation. The legal maximjure naturae aequum est neminem cum alterius detrimento et injuria fieri locupletiorem, which means that it is a law of nature that one should not be enriched by the loss or injury to another, is the percept for Courts. Wide jurisdiction of the court should not become a source of abuse of the process of law by the disgruntled litigant. Careful exercise is also necessary to ensure that the litigation is genuine, not motivated by extraneous considerations and imposes an obligation upon the litigant to disclose the true facts and approach the court with clean hands.
35. No litigant can play 'hide and seek' with the courts or adopt 'pick and choose'. True facts ought to be disclosed as the Court knows law, but not facts. One, who does not come with candid facts and clean breast cannot hold a writ of the court with soiled hands. Suppression or concealment of material facts is impermissible to a litigant or even as a technique of advocacy. In such cases, the Court is duty bound to discharge rule nisi and such applicant is required to be dealt with for contempt of court for abusing the process of the court.K.D. Sharma v. Steel Authority of India Ltd. and Ors.: (2008) 12 SCC 481].
36. Another settled canon of administration of justice is that no litigant should be permitted to misuse the judicial process by filing frivolous petitions. No litigant has a right to unlimited drought upon the court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be used as a licence to file misconceived and frivolous petitions. (Buddhi Kota Subbarao (Dr.) v. K. Parasaran,: (1996) 5 SCC 530).
49. On the analysis of the above principles, it is clear that a person who brings a petition even for invocation of a fundamental right must be a person having some direct or indirect interest in the outcome of the petition on his behalf or on behalf of some person under a disability and/or unable to have access to the justice system for patent reasons. Still, such a person must actbonafidelyand without abusing the process of law. Where a person is a stranger/unknown to the parties and has no interest in the outcome of the litigation, he can hardly claim locus standi to file such petition. There could be cases where a public spirited personbonafidelybrings petition in relation to violation of fundamental rights, particularly in habeas corpus petitions, but even in such cases, the person should have some demonstrable interest or relationship to the involved persons, personally or for the benefit of the public at large, in a PIL. But in all such cases, it is essential that the Petitioner must exhibit bonafides, by truthful and cautious exercise of such right. The Courts would be expected to examine such requirement at the threshold of the litigation in order to prevent abuse of the process of court. In the present case, both the Appellant and Respondent No. 8 are total strangers to the three mentioned Petitioners. Appellant, in fact, is a resident of Madhya Pradesh, belonging to a political party and was elected in constituency Tehsil Lanji in District Balaghat at Madhya Pradesh. He has no roots in Amethi and, in fact, he was a stranger to that place. The Appellant as well as Respondent No. 8 did not even know that the persons on whose behalf they have acted as next friend had shifted their residence in the year 2010 to Hardoia in District Faizabad. They have made false averments in the petition and have withheld true facts from the Court.
43. Hon'ble Supreme Court in the case of Municipal Corporation for Greater Bombay (supra) declining to interfere writ of mandamus directing Corporation to enforce the scheme and remove the huts, sheds and stables etc., which was confirmed in special appeal observed thus:-
It is clear, therefore, on a consideration of the provisions of the Bombay Town Planning Act, 1954 and especially the sections of that Act referred to above, that the Corporation is exclusively entrusted with the duty of framing and implementation of the Planning Scheme and, to that end, has been invested with almost plenary powers. Since development and planning is primarily for the benefit of the public, the, Corporation is under an obligation to perform its duty in accordance with the provisions of the Act. It has, been long held that, where a statute imposes a duty the performance or non-performance of which is not a matter of discretion, a mandamus may be granted ordering that to be done which the statute requires to be done (See Halsburys Laws of England, Third Edition, Vol. II, p. 90).
44. The Hon'ble Apex Court of the land in the case of K. Ramadas Shenoy (supra) dealing with the issue of sanction to construct cinema building in contravention of Town Planning Scheme held thus:-
24. Another contention on behalf of the respondent is that if there is any breach of a statutory duty, the appellant will not be entitled to any relief without an injury. The breach of a statutory duty created for the benefit of an individual or a class is a tortious act. Anyone who suffers special damage therefrom is entitled to recover damages. Counsel for the third respondent rieled on Cutler v. Wandsworth Stadium [1949] A. C. 398. In that case a bookmaker alleged that he suffered damage in that the occupier had failed to make available for bookmakers space on the track where they could conveniently carry on bookmaking in connection with dog races run on the track under the Betting and Lotteries Act, 1934. It was held that the object of the Act was to provide the public and not the bookmakers with its requirements for the purposes of betting. It was no object of the Act to confer on individual bookmakers a privilege in furtherance of their business which they never possessed before. Consequently no action was maintainable. The question whether an individual who is one of a class for whose benefit such an obligation is imposed can or cannot enforce performance by an action must depend on the purview of the legislature in the particular statute. Injury may be caused either by the fulfillment of the duty cast by the statute or by failure to carry it out or by negligence in its performance.
45. The Hon'ble Supreme Court while dealing with the challenge to locus-standi in case of Akhil Bhartiya Upbhokta Congress (supra) held thus:-
42. The challenge to the locus standi of the appellant merits rejection because it has not been disputed that the appellant is a public spirited organization and has challenged other similar allotment made in favour of Punjabi Samaj, Bhopal, That apart, as held in Shivajirao Nilangekar Patil v. Mahesh Madhav Gosavi (1987) 1 SCC 227 even if a person files a writ petition for vindication of his private interest but raises question of public importance involving exercise of power by men in authority then it is the duty of the Court to enquire into the matter.
46. In case of R.K. Mittal (supra), the Hon'ble Supreme Court while dealing with the issue of misuser of the land/premises in sectors earmarked as residential for commercial activity/mixed user by allottees held thus:-
48. A decision which is sought to be taken by the Development Authority in the garb of a policy decision matter, if not in conformity to the Master Plan, the Regulations and provisions of the Act in force, would be an action extra jus. The Development Authority is to act in adherence to the provisions of the law regulating such user or construction. The laconic result of a collective reading of the afore-referred statutory provisions is that the Development Authority or its officers, have no power to vary the user and spaces prescribed in the Master Plan, except by amending the relevant laws and that too, for a proper object and purpose. Any decision, as a policy matter or otherwise, for any extent of public convenience, shall be vitiated, if it is not supported by the authority. The Courts would examine what is the sensible way to deal with this situation, so as to give effect to the presumed purpose of the legislation. The provisions in question should be construed on their plain reading, supporting the structure of the legislative intent and its purpose. The rule of schematic interpretation would come into play in such situations and the concerned Development Authority cannot be permitted to overreach the procedure prescribed by law, with designs not acceptable in law.
49. The Development Authority is inter alia performing regulatory functions. There has been imposition of statutory duties on the power of this regulatory authority exercising specified regulatory functions. Such duties and activities should be carried out in a way which is transparent, accountable, proportionate and consistent. It should target those cases in which action is called for and the same be exercised free of arbitrariness. The Development Authority is vested with drastic regulatory powers to investigate, make regulations, impute fault and even to impose penalties of a grave nature, to an extent of cancelling the lease. The principles of administrative justice squarely apply to such functioning and are subject to judicial review. The Development Authority, therefore, cannot transgress its powers as stipulated in law and act in a discriminatory manner. The Development Authority should always be reluctant to mould the statutory provisions for individual, or even public convenience as this would bring an inbuilt element of arbitrariness into the action of the authorities. Permitting mixed user, where the Master Plan does not so provide, would be glaring example of this kind.
50. In the case of Shabi Construction Company v. City & Industrial Development Corporation & Anr. [(1995) 4 SCC 301], this Court held that, prior sanction of the State Government being the sine qua non for a final development Plan, as also for minor modifications thereof, under Sections 31 and 37 of the Maharashtra Regional and Town Planning Act, 1966, the agreement entered into with the Planning Authority so far as it relates to increased Floor Space Index (FSI) did not and could not bestow any legal right upon the appellant. To put it conversely, only on sanction by the State Government, could the inchoate right under the agreement crystallize into a legally enforceable right in favour of the appellant.
51. Still, in another case of K.K. Bhalla v. State of M.P. & Ors. [(2006) 3 SCC 581], this Court did not approve and attach any validity to the action of the Chief Minister directing and calling for a proposal from the said Development Authority to make allotment for development of an industrial area on concessional terms and held that the purpose for which the allotments were made might be well-meaning, but the allotments, being contrary to the mandatory provisions of the Act and the Rules were void and of no effect, being illegal.
52. Similarly, in the present case, the action of the Development Authority in permitting mixed user was in apparent violation of the statutory provisions in the Master Plan.
47. In the case of V. Chandrasekaran (supra), the Hon'ble Supreme Court reiterating the law declared in the case of Cauvery Coffee Traders observed thus:-
39. In Cauvery Coffee Traders, Mangalore v. Hornor Resources (International) Company Limited, (2011) 10 SCC 420, this Court considered a large number of judgments on the issue of estoppels and held as under:
34. A party cannot be permitted to blow hot and cold, fast and loose or approbate and reprobate. Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience..
35. .The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had.
48. We have given our thoughtful consideration to the preliminary objections raised, on behalf of the private as well as state-respondents, to the effect that the writ petition has been preferred with 'oblique motives' and is directed to target particular persons, and therefore, deserves to be dismissed on the ground that it is not a bona fide petition under the insignia 'Public Interest'.
49. In view of the pronouncements of the Hon'ble Apex Court of land, it hardly needs to be reiterated that the narrow and rigid application of the invasion of the legal right of the person aggrieved, is subject to certain exceptions which have been evolved by the courts over the years by dealing with the issue of 'public interest' for dispensation of justice to be larger sections of the society and also to ensure rule of law. It has been propounded by the Honourable Supreme Court that procedure is but a handmaiden of justice and the cause of justice can never be allowed to be thwarted by any procedural technicalities, if need be, the technical rules of procedure can be dispensed with and the court may treat even a letter of the public-minded individual as a writ petition and act upon it. Keeping in view the tremendous revolution that has occurred in the judicial process; the process of law and its dynamics are fast changing. The problems of the poor, illiterate and those living in the backward areas are coming to the forefront. To cope with the changing dynamics in the social and economic field, it is imperative for the court to carve out new methods and devise new strategies for the purpose of providing easy access to justice to large masses for their development and to protect the basic human rights, freedom and liberty, who are not able to approach the court on account of poverty, illiteracy, distance and for other variety of reasons deep-seeded in the complex society of the country.
50. Thus, in view of the law declared by the Hon'ble Supreme Court, Public interest litigation, is a process to project before the court any public cause by a public spirited person, but as nothing can be absolute, so there are some very useful features in the process and at the same time gross misuse of the process has also been noted as we have discussed in the foregoing paragraphs in the light of the judgments delivered by the Hon'ble Supreme Court. In the process of misuse, it cannot be ruled out that the person approaching the court may target a particular person for oblique motives, initiating legal proceedings on the pretext for the protection of public interest. Public interest litigation, introduced in a court of law, may not by the aggrieved party but it may be by the court suo moto or by any other private party. It is not necessary, for the exercise of the court's jurisdiction, that the person who is the victim of the violation of his rights should approach the court. Public Interest Litigation is a tool provided to the public by courts through the process of judicial activism.
51. Public injury is an injury to an indeterminate class of persons for the breach of duty resulting into injury on account of an act or omission by the State or a public authority to the public at large. Since the duty is not correlative to any particular individual rights and if the breach of such a public duty is allowed to be perpetuated, for nobody suffered a specific legal injury or those who suffered failed to bring an action, such an act or omission on the part of the state or a public authority would go unchecked and promote disrespect in disregard for the 'rule of law'. Therefore, the preliminary objection as to locus standi is rejected.
52. A survey of the various authorities cited at the bar by both the sides, would reveal that the Hon'ble Supreme Court, has also made it clear in unequivocal terms that the individuals who approach the court for judicial redress in the larger 'public interest' and to ensure rule of law, must act bona fide and must also stand to the test of utmost good faith while invoking the jurisdiction of the court through a public interest litigation or a cause of public importance. But, if it surfaces that the petitioner who invoked the jurisdiction, in the matter of this kind, acted for personal gain or private profit or out of political motivation or other oblique motives, the court should not allow itself to be activated at the instance of such a person and the writ application must be dismissed at the very threshold and if need be, with exemplary costs.
53. According to the respondents, the petitioner is a busy body. We find some substance in the preliminary objections and we agree with the submissions made by the learned Advocate General and the counsel for the private respondents that the first requirement for the maintainability of a public interest litigation is the principle of utmost good faith of the petitioner as has been reiterated by the Honourable Apex Court of the land while dismissing a petition which was preferred in the name of public interest in a recent pronouncement.
54. We do find from the nature of allegations made in the writ application that the petitioner has attacked the integrity of the officers of the JDA and has made snooping allegations against Shri Vaibhav Gehlot, without there being any factual foundation laid to sustain such baseless allegations in absence of material facts and particulars. By no stretch of imagination, the allegations made the writ application can be accepted in view of the mere fact that Shri Vaibhav Gehlot happens to be a legal adviser, therefore, the private respondents were close to the power gallery so as to influence the decision-making process of the JDA while the JDA accorded permission for construction up to the height of 30 meters on Plot A-2, assailed in the present writ application. The process involved scrutiny of the building plans according to the Building Rules, 2010, before permission could be granted, for raising construction up to height of 30 meters. The snooping allegations are absolutely absurd for not detailing out the material facts and particulars and for not laying down any factual foundation to sustain the sweeping allegations with regard to mala fide and oblique motives and therefore, the writ application could have been thrown out at the very threshold.
55. This court proceed with the hearing on the writ application for its final disposal, at the motion stage, examining the entire issue, not for the sake of the petitioner but also to ascertain the fact that the feeling, which is not without foundation, that a writ application in the guise and attractive insignia of public interest litigation or for the larger cause of public importance, can be filed with an oblique and ulterior motive which may be private interest litigation or a publicity interest litigation.
56. The learned counsel for the respondents have been successful in demonstrating that Plot A-2, is not on Statue Circle rather it is situated on Prithviraj Road and at the same time the clever distortion of the facts by the petitioner has also been highlighted.
57. Having considered the entire material available on record as well as the law declared by the Honourable Apex Court of the land, we have no hesitation in concluding, that the instant writ application at hand, failed to satisfy the test of utmost good faith, which is an essential requirement for one who approaches the court while filing public interest litigation or a petition raising a cause of public importance. It was the duty of the petitioner, while approaching this court, to detail out correct facts and placed the entire material on record, even if the same was against him, after conducting a thorough research into the subject matter, before filing the writ application, which in substance raised an issue of public importance for the area in C-Scheme and Jaipur being a planned city, as stated at the outset by the petitioner. The writ application appears to be for vested interests, may be, at the instance of some unidentified persons to achieve the oblique motives.
58. The sweeping allegations made in the writ application against the officers of the JDA and Shri Vaibhav Gehlot, without impleading them as party to the writ proceedings eo-nominee, that too without pleading material facts and particulars as well as without laying down any factual foundation for this court to draw even an inference to that effect, is an act which appears to be clearly motivated for oblique reasons. Further, a bare perusal of the material placed on record would reveal that the required procedure was followed before according permission to the private respondents for raising construction upto the height of 30 meters on Plot A-2.
59. From the facts detailed out in the pleadings of the parties and the material available on record, it is apparent that in the instant case at hand, Plot A-2 is situated on Prithviraj Road, as it is also corroborated in view of the counter affidavit filed on behalf of the respondent JDA, as detailed out under Paragraph 11, which initially measured 31847 square yards, out of which respondent number 3 purchased 22885 square yards on 20th of August, 2010. The pleadings are further corroborated from the counter affidavit submitted on behalf of respondent number 3 i.e. Om Metals Consortium Pvt. Ltd., which further finds corroboration from the map area, which shows Plot A-2 around the Statue Circle and approved in the Master Development Plan vide 60th authority meeting held on 5th September, 2011 with the proposed land use as residential in yellow colour, and these facts are not disputed by the petitioner and there is no documentary evidence to the contrary, except for the submission that the respondents cannot be allowed to be blow hot and cold.
60. Regulation 8.7 of the Building Rules, 2010, Under Clause (xiv) of Table-6, makes a specific provision to the effect that Prithviraj Road, which is a road under Table-6, would start from Tonk Road Junction to Chomu House crossing, and as per comment with reference to Clause (xiv), there is a further provision for permission for raising construction upto 30 meters, if the applicant paid betterment levy.
61. The learned counsel for the petitioner has also not disputed the fact that on the opposite side of the project of respondent No.3 on Prithviraj Road, Hotel Park Prime has been constructed on Plot C-59 with height upto 30 meters and so also another residential building 'Royal Ensign', was accorded permission for construction upto height upto 30 meters behind Poddar Park, treating the plot to be on Prithviraj Road and both the buildings are in existence.
62. The snooping allegations alleging mala fide and favoritism, on account of Shri Vaibhav Gehlot being an Adviser to the Group of Companies, appears to be a calculated attempt targeting the person for the reasons best known to the petitioner much less without impleading Shri Vaibhav Gehlot as party eo-nomine to the writ proceedings, depriving him of an opportunity to rebut the allegations. Further, similar is the case with reference to sweeping allegation of mala fide and favoritism with reference to the authorities of the JDA, without specifically impleading those authorities party/parties eo-nomine, to the writ proceedings.
63. In the case of Babu Lal Sharma Versus J.D.A. & Ors.: D.B. Civil Special Appeal (Writ) No. 826/2013 decided on 4th of October, 2013 by the Coordinate Bench of this Court, it is opined that alternative and efficacious remedy is available under Section 83 (8) of the JDA Act for the disputes of the nature raised in the instant writ application. Be that as it may, since we have entertained the writ petition on merits for final disposal at motion stage, keeping in view the urgency of the matter, we refrain from further making any observation on the issue of alternative and efficacious remedy available under the JDA Act.
64. The JDA vide Office Order dated 12th of December, 2012 has clarified with reference to error in Master Plan as to land use, to the effect that where there is more than one land use in a single plot, major use would be determinative factor as to the land use of that plot. Further, prior to release of building plan on 18th May, 2012, the respondent No.3 complied with all the necessary requirements including the condition of surrendering 4.57 meters of the land for the provision of EWS/LIG flats and also deposited a sum of Rs. 20,04,25,100/- towards betterment levy and other charges. The details of plots on the Statue Circle have also been specifically spelt out which find corroboration with the map area around the Statue Circle, which leaves no room for any doubt to conclude that Plot A-2, is a plot on Prithviraj Road and not on the Statue Circle.
65. We are conscious of the fact that in the recent times, there has been an increase of writ applications under the insignia of public interest litigation. The Hon'ble Supreme Court has also noticed the feeling, which is not without foundation that public interest litigation has now transformed into publicity interest litigation or private interest litigation.
66. The petitioner has alleged that respondent numbers 3 and 4 are influential persons and close to power gallery of Rajasthan, without detailing material facts and particulars to lay a foundation to sustain the allegations made, and further pleaded that Shri Vaibhav Gehlot happens to be Adviser of respondent number 2, but again neither material facts and particulars have been furnished nor Shri Vaibhav Gehlot has been impleaded as a party to the writ proceedings. By now, it is well settled, by a catena of judgements delivered by the Honourable Apex Court of the land that whenever allegations as to malafides have been levelled, sufficient particulars and cogent materials making out prima facie case must be set out in the pleadings. Vague snooping allegation or bald assertion that the action in granting permission for construction up to a height of 30 meters was on account of mala fide and malicious intention, is not enough. In the absence of material facts and particulars, the court cannot be expected to make fishing and roving inquiry into the matter. It is equally well established, and hardly needs any authority that the burden of proving mala fides is very heavy on the person making the allegations. Malafide or Malice cannot be inferred or assumed without there being factual foundation laid to draw such an inference. It has been held by the honourable Apex Court of the land that such a charge can easily be made than made out and therefore, it is essential for the courts to examine such snooping allegations and charge with extreme care, caution and circumspection.
67. Keeping in view the facts, circumstances and material available on record in the instant case at hand, we are not prepared to say that the permission granted to the respondent number 3, for construction up to the height of 30 meters is mala fide or actuated by any extraneous or irrelevant considerations or for oblique motive.
68. In the facts, circumstances and discussions hereinabove, we find no merit in the writ application filed without furnishing essential material facts and particulars as well as without laying any factual foundation while making snooping allegations against the respondents in the decision-making process. We are afraid that while exercising jurisdiction under article 226 of the Constitution, as already indicated, it will at all be justifiable in interfering with the decision impugned, especially when there is no material available on record inspiring confidence, to show that the decision is contrary to law or actuated by mala fide or for irrelevant considerations on account of oblique motives. The writ petition lacks merit, and is without any substance.
69. In the result, the writ application is hereby dismissed. Consequently, the special appeal against interim order also stands dismissed. The stay applications stand closed. However, we refrain from imposing cost, but at the same time we caution the petitioner to be more careful in future while raising such issues, without detailing out the material facts and particulars and placing on record the necessary documentary evidence to substantiate the allegations made.
(VEERENDR SINGH SIRADHANA), J. (AMITAVA ROY), CJ. Sunil/P.A.
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
(Sunil Solanki) P.A