Himachal Pradesh High Court
Mohan Dutt & Anr vs Union Of India & Others on 22 September, 2016
Author: Sandeep Sharma
Bench: Mansoor Ahmad Mir, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
CWP No.1307 of 2016
.
Judgment Reserved on: 01.09.2016
Date of decision: 22.09.2016
Mohan Dutt & Anr. ....Petitioners
Versus
Union of India & Others. ..Respondents
of
Coram
The Hon'ble Mr.Justice Mansoor Ahmad Mir, Chief Justice.
rt
The Hon'ble Mr.Justice Sandeep Sharma, Judge.
Whether approved for reporting ?1Yes.
For the Petitioners: Mr.Varun Thakur, Advocate.
For the Respondents: Mr. Arvind Sharma, Central
Government Counsel, for respondent
No. 1.
Mr.Shrawan Dogra, Advocate General
with Mr.Rupinder Singh, Mr.Anup
Rattan, Mr.Romesh Verma & Mr.
Varun Chandel, Additional Advocate
Generals and Mr. Kush Sharma,
Deputy Advocate General, for
respondents No. 2 to 7.
Sandeep Sharma,J.
By way of present writ petition filed under Article 226 of the Constitution of India, the petitioners have prayed for following main reliefs:-
1Whether the reporters of Local Papers may be allowed to see the judgment? Yes.::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 2
"a) That a writ of certiorari may kindly be issued quashing and setting aside the decision of the respondent State Government to select the site of Modern Degree College, Sarahan at Village Tikker, out of land comprised in .
Khata Khatauni No. 30/42, plots 20, measuring 464.10 Bighas situated in Mohal Tikker, Tehsil Pachhad, District Sirmaur (H.P.) as per copy of Jamabandi for the year 2013-14.
b) That the writ of mandamus may be issued against the respondent State Government not to carry out any type of construction work at village Tikker for the construction of Govt.
of Modern Degree College, Sarahan including the construction of link road to the site.
c) That necessary directions may be issued against the respondents No. 2, 3, 5 to 7 rt directing them to select/approve or to examine the feasibility of land for the construction of Govt. Modern College, Sarahan at the following villages, which are situated near and around Sarahan, as per the latest Guidelines of the respondent State Government annexed at Annexure P-9:-
i) Bag-Pashog/Kawagdhar,
ii)Between village Bhellan & Nawal-Labhan,
iii) Barasra
iv) Kahan (New Site) Or any other suitable place near to Sarahan, so that sufficient land is available as per requirement for the construction of Govt.
Modern College, for the convenience of general public of Tehsil Pachhad, District Sirmaur (H.P.)
d) That the Writ of mandamus may be issued against the respondent State Govt. to take suitable action with the respondent No. 1 for obtaining no objection with regard to the land situated at village Kahan near to Petrol Pump which site was earlier selected for the construction of College.
::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 32. Present petition has been filed as Public Interest Litigation (in short 'PIL') by petitioners .
specifically laying challenge to the decision of the respondents-State, wherein, it was decided to establish Govt. Degree College, Sarahan at village Tikker on the land comprised Khata Khatauni No. 30/42, plots 20, of measuring 464.10 Bighas situated in Mohal Tikker, Hadbast No. 260, Tehsil Pachhad, District Sirmaur (H.P.) rt
3. Perusal of pleadings available on record suggests that earlier respondents-State had decided to construct Govt. Degree College at village Kahan, and the then Chief Minister, Himachal Pradesh had also laid foundation stone. Since, respondents-State changed its earlier decision of setting up Govt. Degree College at village Kahan, present petitioners filed writ petition in the shape of public interest litigation before this Court praying therein issuance of writ of mandamus against respondents-State not to construct Govt. Degree College, Sarahan at village Tikker. Petitioners also sought directions to the respondents-State to select/approve or to examine the feasibility of land for construction of ::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 4 aforesaid College at the villages which are situated near and around Sarahan, strictly in terms of Guidelines .
issued by respondents-State, so that College is constructed on sufficient land.
4. Close scrutiny of the pleadings on record suggests that earlier respondents-State had selected site of for Govt. Degree College at village Kahan on the National Highway towards Nahan i.e. 1 kilometer from Sarahan.
But, thereafter, rt respondents-State vide Notification dated 14.01.2014 decided to open nine (9) Government Colleges in different places in the State of Himachal Pradesh including Government Degree College, Sarahan, District Sirmaur at village Tikker. It also emerges from the record that some of the owners of the land, gifted 20 bighas of land comprising Khata Khatauni No. 30/42, plots 20, measuring 464.10 bighas situated in revenue village Tikker, Tehsil Pachhad, District Sirmaur (H.P.) as per the copy of jamabandi for the year 2013-14. On the basis of aforesaid gift deeds executed by the owners of the land of village Tikker, mutations No. 279 to 287 were attested by Assistant Collector, Pachhad in favour of Education Department. Subsequent to aforesaid ::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 5 development, Chief Minister of Himachal Pradesh laid foundation stone of aforesaid Government College, .
Sarahan at village Tikker, Tehsil Pachhad, District Sirmuar on 22.11.2015.
5. At this stage it would be relevant to refer para 1 of writ petition preferred by present petitioners:-
of "1.That the petitioner No. 1 and 2 are the citizen of India and the petitioner No. 1 is a resident of village & Post Office Bag-Pashog, Tehsil Pachhad, District Simarur (H.P.) and petitioner No. 2 is a resident of village Rister-Panwa, Post Office Panwa, Tehsil Pachhad, District Sirmaur rt (H.P.). Both the petitioners are agriculturists.
Since, there is involvement of local politics for opening of the Government College at Sarahan, the students of Tehsil Pachhad, particularly the girl students are suffering, morally, financially & educationally. It is a matter of grave concern that the site selected for the construction of Government Model College at village Tikker near Sarahan is against the legitimate expectation of the people of Tehsil Pachhad, District Sirmaur. The present land/site selected for the construction of Modern Govt. College is not as per the Guidelines of the State Government and the same is very steep gradient, the decision for selecting the land for the construction of the Modern college was only taken by respondent No. 8 and respondent No. 9 alongwtih few people of village Tikker alone and not with the consent of the general public of Tehsil Pachhad. There is apprehension of mishappenings with the students during their studies in future there at site. A huge amount of the State Government is being wasted unnecessary for the construction of 1 k.m. link road and for leveling of the site for college. Moreover, there is no chance at all to construct the play ground or stadium for sports at the present College site as required under the new/latest guidelines of the State Government. As the huge public amount is being wasted for nothing and there is another sufficient suitable land is available near to Sarahan where the ::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 6 Model College as per guidelines of the State Government can be established/constructed, in pursuance of the Judgment delivered by the Hon'ble High Court of Himachal Pradesh in CWP No. 1468 of 2013, titled as Dhrub Dev Sharma & .
others (De-notifying 08 Govt. Colleges) on 18th June, 2013, regarding opening of new Government Degree Colleges in the State to achieve the objectives of access, equity and quality in higher Education, therefore, the petitioners being resident of Tehsil Pachhad are entitled to file and maintain this writ petition in the interest of general public to save the public money being unnecessarily wasted on political considerations, in this Hon'ble Court which has of jurisdiction to hear and adjudicate upon the matter."
6. Careful perusal of averments contained in rt para 1 of the petition suggests that petitioner No. 1 is resident of Village & Post Office Bag-Pashog, Tehsil Pachhad, District Sirmaur (H.P.) and petitioner No. 2 is resident of Village Rister-Panwa, Post Office Panwa, Tehsil Pachhad, District Sirmaur (H.P.). Petitioners have specifically stated that site selected for construction of Government Modern College at village Tikker near Sarahan is against the legitimate expectation of the people of Pachhad, District Sirmaur. As per petitioners, land/site selected for the construction of the College is not as per the Guidelines of the State Government.
Petitioners have further stated that land selected for construction of college is steep gradient and decision for ::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 7 selecting the land for the construction of Modern College was only taken by respondents No. 8 and 9 alongwith .
few people of village Tikker and not with the consent of the general public of the Tehsil Pachhad. Similarly, petitioners expressed apprehension that there is no chance of constructing the playground or stadium for of sports at the present College site as required under new/latest guidelines of the State Government.
Petitioners further alleged that huge public money is rt being wasted for nothing and there is another sufficient suitable land available near to Sarahan, where the Modern Degree College can be opened that too in terms of guidelines issued by State Government. Petitioners also alleged that respondents-State has not followed the mandate of this Court passed vide judgment dated 18th June, 2013 in CWP No. 1468 of 2013, titled as "Dhrub Dev Sharma & others vs. State of Himachal Pradesh", wherein, guidelines were laid down with regard to opening of new Government Degree College in State.
7. If the averments contained in the writ petition are read in entirety, it can be safely concluded ::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 8 that petitioners have leveled serious allegations against various public representatives of the area that too .
without placing on record any material evidence to substantiate their claim with regard to misuse of power by persons, who allegedly persuaded respondents-State to change its decision to shift site of Modern Degree of College from village Kahan to village Tikker, District Sirmaur, H.P.
8. Primarily, petitioners are aggrieved with the rt shifting of Modern Degree College, Sarahan from village Kahan to Tikker, but careful perusal of reply filed by respondents itself clearly suggests that land at village Kahan, where, earlier, College was proposed to be constructed could not be finalized because 2.43 hectares area (proposed site) was forest land. In this regard, it would be profitable to refer to para 4 of the reply filed by respondents No. 2, 3 and 7:-
"4.That the contents of this Para are admitted to the extent that State Govt. had selected the site for the Govt. Degree College Sarahan near to petrol pump at village Kahan. It is further submitted that there are 700 green trees standing on the site and said land was in the category of dense forest which attracts the provision for the Forest Conservation Act, 1980. The matter was taken up with the Govt. of India, Ministry of Environment, Forest and Climate change Regional Office by the Principal, Govt.::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 9
College, Sarahan but no approval was obtained. The GOI has raised many observations and work being delayed to construct the college building and students were suffering. Copy of observations made by FRI, Dehradun is .
submitted as Annexure R-3. It is further submitted that in the meantime, the land was offered by the local residents for construction of college building in favour of Education Department on 3.10.2015."
9. Perusal of aforesaid reply clearly suggests that respondents-State had earlier selected site for of construction of Govt. Degree College, Sarahan near to petrol pump at village Kahan. But, since there were rt more than 700 green trees standing on the site and Govt. of India had raised many objections, decision was taken to construct Modern Degree College at village Tikker, that too, on the land donated by the people of the area. Further, perusal of Para 20 of aforesaid reply also suggests that Govt. of Himachal Pradesh proposed to open Govt. College at Sarahan and in this regard accorded administrative approval of Rs.17,87,35,000/-
against which amount of Rs.2,77,00,000/- has been released to HPPWD, Rajgarh. It would be apt to reproduce below Paras 20 and 21 of the reply:-
"20.That in reply to this para, it is submitted that Govt. of Himachal Pradesh has opened Govt. College at Sarahan and administrative approval of RS. 17,87,35,000/- has been accorded by the Govt. against which Rs.2,77,00,000/- has been ::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 10 released to HPPWD, Rajgarh. Besides there is a provision of Rs. 12.00 crore under RUSA which is yet to be released. The remaining contents are wrong, hence denied.
21. That in reply to this para, it is submitted .
that 20 bighas of land has been donated by the owners of land and with the consent of co- owners, the separate Tatima of specific portion has been carved out. No co-owners objected the carving out of Tatima from the joint land."
10. Similarly, respondent No. 6 i.e. Sub of Divisional Magistrate, Rajgarh has stated that they received letter No. GC/SRN-Bhawan/14-210, dated 21.10.2015,rt from Principal, Govt. Degree College, Sarahan, wherein it was mentioned that with respect to the land selected earlier at village Kahan for construction of Govt. Degree College, he has not received the approval from the Forest Department, therefore, the local residents of village Tikker donated 20 bighas of land comprised in Khata Khatauni No. 30/42 for the construction of Govt. Degree College, Sarahan.
Accordingly, he requested for conducting joint inspection of the newly selected site so that issues related to land identification/transfer with respect to newly opened college are resolved to avoid delay in construction of the College at newly selected site at village Tikker. Reply filed by respondent No. 6 i.e. Sub ::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 11 Divisional Magistrate further reveals that 20 bighas of land comprised in Khata Khatauni No. 30/42 situated .
in Mauja Tikker was donated by 8 out of 64 co-sharers in favour of Department of Education, Govt. of H.P. and said land was mutated in favour of Education Department, Govt. of H.P. of
11. Similarly, respondent No. 5 i.e. Superintending Engineer, 12th Circle, HPPWD, Nahan in his reply has categorically stated that at earlier site rt proposed for construction of Govt. Degree College, the land included 2.43 hectares area is forest land, which required forest clearance under Forest Right Act, 1980.
Aforesaid Superintending Engineer has specifically stated in his reply that as per report of Forest Department there are 694 Chil trees (pinusroxburghai) standing over the site. He further stated that matter was referred to Forest Department by Education Department for obtaining No Objection Certificate ('NOC' for short) from Ministry of Environment and Forest, Govt. of India but same could not be arranged by the Education Department. Since, there was no NOC from Govt. of India, no architectural drawing could be prepared for ::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 12 construction of college at village Kahan, District Sirmaur.
.
12. Mr. Varun Thakur, learned counsel for the petitioners, vehemently argued that the action of respondents-State in constructing Govt. Degree College at village Tikker is in complete violation of of guidelines/instructions issued in this regard by the Govt. of H.P. Pursuant to judgment passed by this Court in CWP No. 1468 of 2013 titled as "Dhrub Dev Sharma rt & others vs. State of H.P.", he contended that aforesaid college is being constructed in complete violation of Rule in vogue and land at village Tikker is not at all suitable for construction of the College. Mr. Varun Thakur forcefully contended that no College can be constructed on the proposed site as it is steep gradient, but despite aforesaid, respondents-State by concealing material facts got the land transferred in the name of Education Department for construction of College. He further argued that respondents-State before taking any steps for construction of College at proposed site failed to take into confidence the residents of that area, as NOC whatsoever was never obtained from the ::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 13 concerned Gram Panchayat. Despite there being lot of resistance from the local residents, respondents are hell .
bent to construct college at village Tikker. Mr. Varun further argued that respondents of the area are not happy with the construction on the proposed site, which was otherwise not suitable for the construction of the of same. During arguments, he invited the attention of this Court to various documents placed on record to suggest that there is lot of opposition from the residents of that rt area as well as of Panchayat. He also invited the attention of this Court to Annexure P-6 to demonstrate that earlier foundation stone was laid down by the then Chief Minister for construction of Degree College at village Kahan but now that decision has been changed solely at the instance of political bigwigs of the area for political gains. Accordingly, in view of above, he prayed for issuance of direction restraining respondents from raising any construction of college at village Tikker on the land allegedly gifted by few people.
13. Mr. Shrawan Dogra, learned Advocate General, appearing on behalf of respondents-State forcefully contended that present writ petition is not ::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 14 maintainable because petitioners have not been able to prove their locus to file the present petition. He .
strenuously argued that in garb of so called PIL, few interested people are trying to stall the construction of College at new site, which is admittedly being constructed for the benefit of public at large of the area.
of Mr. Dogra further contended that while making proposal for constructing Degree College at new proposed site, each and every instructions issued in this regard by the rt authorities concerned, have been duly complied with.
During arguments having been made by him, he invited the attention of this Court to various documents annexed with the reply to demonstrate that at earlier site more than 700 Chil trees were standing and despite best efforts, no forest clearance could be procured from the competent authority. Similarly, Mr. Dogra further contended that respondents-State before issuing order of transfer of land in the name of Education Department actually obtained report from the revenue authority, wherein it was categorically informed that proposed land is suitable for construction of College and no trees exist there. While concluding his argument, Mr. Dogra ::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 15 forcefully contended that Degree College is being constructed solely in the interest of residents of the area .
and in this regard already huge amount has been spent by respondents-State and, as such, construction on the spot cannot be ordered to be stopped at the behest of some vested interests.
of
14. We have heard learned counsel for the parties and gone through the record of the case carefully. rt
15. Conjoint reading of aforesaid replies filed by respondents clearly suggests that earlier site selected for construction of Govt. Degree College at village Kahan could not be finalized solely for the reason that there were approximately 700 Chil trees standing on the land and no NOC could be procured from the Forest Department for utilizing the said land. This Court after perusing the reply filed by respondents is fully satisfied that Govt. Degree College could not be constructed at village Kahan in absence of NOC from the Ministry of Environment & Forest, Govt. of India.
16. On the other hand, respondents-State got considerable land from the private persons, who, on ::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 16 their own, donated considerable land for construction of Govt. Degree College at village Tikker. It also emerges .
from record that after selection of site at village Tikker, respondents have considerably worked on the new proposed site for construction of college and as such, this Court sees no reason, whatsoever, to interfere in the of policy decision taken by the respondents-State to construct college at village Tikker.
17. Perusal of documents available on record rt itself suggests that matter with regard to opening of new Govt. College at Sarahan, Tehsil Pachhad, District Sirmaur is hanging fire since 8th October, 2007 and public of that area is deprived of the basic facility of college in the area on one pretext or other. Petitioners specifically stated in the petition that the site on which construction of college is proposed at village Tikker is not suitable, but in this regard nothing has been placed on record to demonstrate that the site on which, the college is now proposed to be constructed, is not suitable, rather careful perusal of the averments contained in the writ petition suggests that the petitioners while terming present site un-suitable for ::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 17 construction of college, have suggested their own villages for construction of the college. At this stage, it .
would be apt to reproduce prayer 'c' made in the writ petition:-
"c) That necessary directions may be issued against the respondents No. 2, 3, 5 to 7 directing them to select/approve or to examine the feasibility of land for the construction of Govt. Modern College, of Sarahan at the following villages, which are situated near and around Sarahan, as per the latest Guidelines of the respondent State Government annexed at Annexure P-9:-
rt
i) Bag-Pashog/Kawagdhar,
ii)Between village Bhellan & Nawal-Labhan,
iii) Barasra
iv) Kahan (New Site) Or any other suitable place near to Sarahan, so that sufficient land is available as per requirement for the construction of Govt.
Modern College, for the convenience of general public of Tehsil Pachhad, District Sirmaur (H.P.)
18. Perusal of aforesaid relief clause clearly suggests that petitioners have prayed that college may be opened at village Bag-Pashog/Kawagdhar, which is admittedly village of petitioner No. 1. Aforesaid prayer itself suggests that present writ petition has not been filed in public interest, rather in the garb of present PIL, petitioner No. 1 has proposed his own village for construction of the College. Since, it clearly stands ::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 18 proved on record that at earlier site at village 'Kahan' number of trees were standing and as per judgment .
passed by Hon'ble Apex Court in "Godavarman Thirumulpad vs. Union of India & Ors, 1997 (2) SCC 267" wherein it has been held that no forest land can be put to any non-forestory purpose, this Court sees no of illegality and infirmity in the decision taken by the respondents-State where they proposed new site to construct Govt. College at village Tikker, that too, on the rt land donated by the people of that area.
19. In the present case, petitioners have leveled serious allegations with regard to irregularities committed by the respondents-State while proposing construction of Degree College at village Tikker instead of village Kahan but same appears to be ill-founded and without any basis because all the respondents have unequivocally stated in their reply that earlier site at village Kahan was not suitable for construction of Degree College since there are more than 700 Chil trees standing on that site and no forest clearance is accorded by the Ministry of Environment and Forest, Government of India.
::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 1920. At this stage, it is observed that such petitions, that too, in the name of PIL cannot be allowed .
to be used as a tool by some vested interests, who for some ulterior motive do not want the Govt. College to come up in that area. At the cost of repetition, it may be observed that proposal with regard to setting up of of Degree College in the area is hanging fire since year, 2007 but till date no College could be set-up in that area. In the present case, though petitioners have rt claimed themselves to be `Pro Bono Publico' but no material, whatsoever, has been placed on record to suggest that present petition has been filed in the public interest, rather careful perusal of the averments contained in the writ petition clearly suggests that petitioners wanted this college to come up in their own village as clearly emerged from prayer (c) made in the writ petition.
21. This Court vide judgment in CWP No.9480 of 2014, titled: Vijay Kumar Gupta vs. State of Himachal Pradesh and Others, decided on 09.01.2015, has already issued the following guidelines as far as filing of PIL is concerned:-
::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 20"29. From the aforesaid exposition of law, it can safely be concluded that the Court would allow litigation in public interest only if it .
is found:-
(i) That the impugned action is violative of any of the rights enshrined in Part III of the Constitution of India or any other legal right and relief is sought for its enforcement;
(ii) That the action complained of is palpably illegal or malafide and affects the group of of persons who are not in a position to protect their own interest or on account of poverty, incapacity or ignorance;
(iii) That the person or a group of persons rt were approaching the Court in public interest for redressal of public injury arising from the breach of public duty or from violation of some provision of the Constitutional law;
(iv) That such person or group of persons is not a busy body or a meddlesome interloper and have not approached with mala fide intention of vindicating their personal vengeance or grievance;
(v) That the process of public interest litigation was not being abused by politicians or other busy bodies for political or unrelated objective. Every default on the part of the State or Public Authority being not justiciable in such litigation;
(vi) That the litigation initiated in public interest was such that if not remedied or prevented would weaken the faith of the common man in the institution of the judicial and the democratic set up of the country;
(vii) That the State action was being tried to be covered under the carpet and intended to be thrown out on technicalities;
(viii) Public interest litigation may be initiated either upon a petition filed or on the basis of a letter or other information received but upon satisfaction that the information laid before the Court was of ::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 21 such a nature which required examination;
(ix) That the person approaching the Court has come with clean hands, clean heart .
and clean objectives;
(x) That before taking any action in public interest the Court must be satisfied that its forum was not being misused by any unscrupulous litigant, politicians, busy body or persons of groups with mala fide objective or either for vindication of their personal grievance or by resorting to black-mailing or considerations extraneous to public interest."
of In the present case there is no compliance whatsoever, of the guidelines, referred herein above, rt and, as such, present petition cannot be termed as PIL, in any manner, and the same deserves to be dismissed.
22. Though, by way of present petition, it has been claimed that the same has been filed in public interest but as clearly emerges from the record, as has been discussed hereinabove, there is no material, whatsoever available on record, which could persuade this Court to believe that the petitioners are `Pro Bono Publico' and petition is filed in public interest. Rather, careful perusal/analysis of the documents available on record suggests that it is a handy work of some vested interests, who certainly for extraneous reasons do not want the Govt. College to come up at village Tikker.
::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 2223. During arguments, this Court had an occasion to sift the entire documentary evidence made .
available on record as well as pleadings of the parties, perusal whereof clearly suggests that the College which is being sought to be shifted by invoking extra ordinary jurisdiction of this Court is in larger public interest.
of Careful reading of the specific reply given by the respondents-State to the averments made in the writ petition clearly depicts that the petitioners have not rt approached this Court with clean hands, rather attempt has been made to hoodwink the Court by concealing material facts solely with a view to obtain orders from the Court restraining the respondents from constructing Govt. Degree College at village Tikker. None of the averments, with regard to cutting of trees, steep gradients and misuse of power by authorities have been admitted by the respondents in their respective replies.
To the contrary, the reply filed by the respondents, which is duly supported by an affidavit of responsible officer of the State, suggests that necessary precautions/measures have been taken by the Department to protect the ecology/environment before ::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 23 granting necessary permission for the construction of Degree College at village Tikker. Moreover, as has been .
noticed above, petitioners have not placed on record any document/material to show their locus to lay challenge to decision of Govt. to construct college at village Tikker, which is admittedly in the interest of public at large.
of
24. Hence in view of the facts and circumstances enumerated hereinabove, this Court has no hesitation to conclude that by no stretch of imagination present rt petition can be termed as PIL. Rather contents of the same appear to be frivolous, vexatious and far-far away from the correct position on the spot. This court as well as Hon'ble Apex Court have repeatedly expressed concern with regard to growing menace of so called PIL, whereby some vested interests by concealing material facts attempt to rope in the Courts in the name of public interest.
25. Hon'ble Apex Court expressing its serious concern over misuse of PIL has repeatedly observed that use of the PIL has to be done with care, caution and circumspection so that it is not misused by certain people having vested interest.
::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 2426. Hon'ble Apex Court in case Central Electricity Supply Utility of Odisha vs. Dhobei .
Sahoo and Others (2014)1 SCC 161, observed as under:
"24. Ordinarily, after so stating we would have proceeded to scan the anatomy of the Act, the Rules, the concept of the Scheme under the Act and other facets but we have thought it imperative to revisit certain of authorities pertaining to public interest litigation, its abuses and the way sometimes the courts perceive the entire spectrum. It is an ingenious and adroit innovation of the judge-made law within the constitutional parameters and serves rt as a weapon for certain purposes. It is regarded as a weapon to mitigate grievances of the poor and the marginalized sections of the society and to check the abuse of power at the hands of the Executive and further to see that the necessitous law and order situation, which is the duty of the State, is properly sustained, the people in impecuniosities do not die of hunger, the national economy is not jeopardized; the rule of law is not imperiled; human rights are not endangered, and probity, transparency and integrity in governance remain in a constant state of stability. The use of the said weapon has to be done with care, caution and circumspection. We have a reason to say so, as in the case at hand there has been a fallacious perception not only as regards the merits of the case but also there is an erroneous approach in issuance of direction pertaining to recovery of the sum from the holder of the post. We shall dwell upon the same at a later stage.
25. As advised at present, we may refer to certain authorities in the field in this regard. In Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161 Bhagwati, J., (as ::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 25 his Lordship then was) had observed thus:
(SCC p.183, para 9) "9. ....When the Court entertains public interest litigation, it does not do so in a .
caviling spirit or in a confrontational mood or with a view to tilting at executive authority or seeking to usurp it, but its attempt is only to ensure observance of social and economic rescue programme, legislative as well as executive, framed for the benefit of the have-nots and the handicapped and to protect them against violation of their basic human rights, which is also the constitutional obligation of the executive. The Court is of thus merely assisting in the realization of the constitutional objectives."
"26. In Dr. D.C. Wadhwa and others v. State of Bihar (1987) 1 SCC 378 the Constitution rt Bench, while entertaining a petition under Article 32 of the Constitution on behalf of the petitioner therein, observed that it is the right of every citizen to insist that he should be governed by laws made in accordance with the Constitution and not laws made by the executive in violation of the constitutional provisions. It has also been stated therein that the rule of law constitutes the core of our Constitution and it is the essence of rule of law that the exercise of the power by the State whether it be the legislature or the executive or any other authority should be within the constitutional limitation and if any practice is adopted by the executive which is in flagrant violation of the constitutional limitations, a member of the public would have sufficient interest to challenge such practice and it would be the constitutional duty of the Court to entertain the writ petition.
27. In Neetu v. State of Punjab (2007) 10 SCC 614 the Court has opined that it is shocking to note that Courts are flooded with large number of so called public interest litigations where even a minuscule percentage can legitimately be called as public interest litigation. Commenting on entertaining public interest litigations without being careful ::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 26 of the parameters by the High Courts the learned Judges observed as follows: (SCC p. 617, para 5) "5. `16....Though the parameters of .
public interest litigation have been indicated by this Court in large number of cases, yet unmindful of the real intentions and objectives, [High Courts] are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. (Ashok Kumar Pandey v. State of West Bengal (2004) 3 SCC 349, SCC p.358, para 16)"
of Thereafter, giving a note on caution, the Court stated:
rt "6. `12. 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."
(B.Singh versus Union of India (2004)3 SCC 363, SCC p.372, para 12)"
(pp.175-176)
27. Hon'ble Apex Court in State of Uttaranchal vs. Balwant Singh Chaufal and Others, (2010)3 SCC 402, while dealing with the issue of growing menace of Public Interest in the Country, observed as under:-
"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 must be encouraged whereas frivolous public ::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 27 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 (2002)2 SCC 333, this Court recognized that there have been, in recent times, increasing instances of abuse of public interest litigation.
of 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. rt 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.
153. In J. Jayalalitha v. Government of T.N. (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.
155. In Dattaraj Nathuji Thaware V. State of Maharashtra (2005) 1 SCC 590, this court expressed its anguish on misuse of the forum of the court under the garb of public interest litigation and observed (SCC p.595, para 12) 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 ::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 28 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...."
28. Perusal of the observations made hereinabove as well as law laid down by Hon'ble Apex Court and by this Court, PIL cannot be allowed to be of used as a tool by irresponsible unscrupulous litigants to serve their vested interest in the garb of public interest.
29. rt In the present case, we are constrained to observe that no material whatsoever has been made available from where it could be inferred that the present petition has been filed in the Public Interest, rather, careful perusal of the pleadings on record persuaded this Court to draw a conclusion that the petitioners, with vested interests, have made an attempt by filing this frivolous petition to obtain illegal orders from the Court in the name of PIL. Moreover, careful perusal of the pleadings on record nowhere suggests that petitioners fulfill the criteria as has been identified/laid down by this Court in Vijay Kumar ::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 29 Gupta's case supra which can persuade this Court to consider the instant petition as a PIL.
.
30. As has been noticed above that respondents have already made considerable progress for constructing Govt. Degree College at village Tikker, which otherwise appears to be being constructed strictly of in conformity with the Rules and guidelines issued by the competent authorities in that regard, petitioners cannot be allowed to make sheer abuse of the process of rt law by filing such frivolous petitions. It is seen that people of area are deprived of college, which would have been completed by now but for illegal/unjust approach adopted by certain people like petitioners, who without there being sufficient material on record resorted to legal proceedings, as in the instant case, to halt the developmental activities being taken up by the respondents-State, rather such practice deserves to be deprecated and such persons need to be dealt with sternly.
31. Moreover, it is a complete domain of the respondents-State to select site, if any, for construction of College keeping in view various factors in mind and ::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 30 as such this Court has very limited jurisdiction to interfere, especially, in policy decision taken by the .
respondents-State.
32. In this regard reliance is placed upon Maharashtra State Board of Secondary and Higher Secondary Education and Another vs. Paritosh of Bhupeshkumar Sheth and Others and Alpana V.Mehta vs. Maharashtra State Board of Secondary Education and Another, (1984)4 SCC 27, wherein the rt Hon'ble Supreme Court held:
"16. In our opinion, the aforesaid approach made by the High Court is wholly incorrect and fallacious. The Court cannot sit in judgment over the wisdom of the policy evolved by the Legislature and the subordinate regulation-
making body. It may be a wise policy which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that, in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act. The Legislature and its delegate are the sole repositories of the power to decide what policy should be pursued in relation to matters covered by the Act and there is no scope for interference by the Court unless the particular provision impugned before it can be said to suffer from any legal infirmity, in the sense of its being wholly beyond the scope of the regulation- making power or its being inconsistent with any of the provisions of the parent enactment or in violation of any of the limitations imposed by the Constitution. None of these vitiating factors are shown to exist in the present case and hence ::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 31 there was no scope at all for the High Court to invalidate the provision contained in clause (3) of Regulation 104 as ultra vires on the grounds of its being in excess of the regulation-making power conferred on the Board. Equally .
untenable, in our opinion, is the next and last ground by the High Court for striking down clause (3) of Regulation 104 as unreasonable, namely, that it is in the nature of a bye-law and is ultra vires on the ground of its being an unreasonable provision. It is clear from the scheme of the Act and more particularly, Sections 18, 19 and 34 that the Legislature has laid down in broad terms its policy to provide for the establishment of a State Board and of Divisional Boards to regulate matters pertaining to secondary and higher secondary education in the State and it has authorised the State Government in the first instance and subsequently the Board to enunciate the details rt for carrying into effect the purposes of the Act by framing regulations. It is a common legislative practice that the Legislature may choose to lay down only the general policy and leave to its delegate to make detailed provisions for carrying into effect the said policy and effectuate the purposes of the Statute by framing rules/regulations which are in the nature of subordinate legislation. Section 3(39) of the Bombay General Clauses Act, 1904, which defines the expression 'rule' states: Rule shall mean a rule made in exercise of the power under any enactment and shall include any regulation made under a rule or under any enactment." It is important to notice that a distinct power of making bye-laws has been conferred by the Act on the State Board under Section 38. The Legislature has thus maintained in the Statute in question a clear distinction between 'bye-laws' and 'regulations'. The bye-laws to be framed under Section 38 are to relate only to procedural matters concerning the holding of meetings of State Board, Divisional Boards and the Committee, the quorum required, etc. More important matters affecting the rights of parties and laying down the manner in which the provisions of the Act are to be carried into effect have been reserved to be provided for by regulations made under Section 36. The Legislature, while enacting Sections 36 and 38, must be assumed to have been fully aware of the ::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 32 niceties of the legal position governing the distinction between rules/regulations properly so called and bye-laws. When the statute contains a clear indication that the distinct regulation- making power conferred under Section 36 was .
not intended as a power merely to frame bye-
laws, it is not open to the Court to ignore the same and treat the regulations made under Section 36 as mere bye-laws in order to bring them within the scope of justiciability by applying the test of reasonableness.
21. The legal position is now well-established that even a bye-law cannot be struck down by the Court on the ground of unreasonableness of merely because the Court thinks that it goes further than "is necessary" or that it does not incorporate certain provisions which, in the opinion of the court, would have been fair and wholesome. The Court cannot say that a bye-law rt is unreasonable merely because the judges do not approve of it. Unless it can be said that a bye law is manifestly unjust, capricious, inequitable, or partial in its operation, it cannot be invalidated by the Court on the ground of unreasonableness. The responsible representative body entrusted with the power to make by laws must ordinarily be presumed to know what is necessary, reasonable, just and fair. In this connection we may usefully extract the following off-quoted observations of Lord Russell of Killowen in Kruse v. Johnson, (1898) 2 QB 91, 98, 99 (quoted in Trustees of the Port of Madras v. Adminchand Pyarelal, (1976)! SCR 721, 733) (SCC p.178, para 23):
(1) "When the Court is called upon to consider the byelaws of public representative bodies clothed with the ample authority which I have described, accompanied by the checks and safeguards which I have mentioned, I think the consideration of such bye-laws ought to be approached from a different standpoint. They ought to be supported if possible. They ought to be, as has been said, 'benevolently interpreted' and credit ought to be given to those who have to administer them that they will be reasonably administered."
"The learned Chief Justice said further that there may be cases in which it would be the ::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 33 duty of the court to condemn by-laws made under such authority as these were made (by a county council) as invalid because unreasonable. But unreasonable in what sense? If for instance, they were found to be partial and unequal in their operation as .
between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the court might well say, 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires.' But it is in this and this sense only, as I conceive, that the question of reasonableness or unreasonableness can properly be regarded. A of bye-law is not unreasonable merely because particular judges may think that it goes further than is prudent or necessary or convenient or because it is not accompanied by an exception which some judges may think ought to be there'.
rt " We may also refer with advantage to the well-known decision of the Privy Council in Slattery v. Naylor, (1988) 13 AC 446, where it has been laid down that when considering whether a bye-law is reasonable or not, the Court would need a strong case to be made against it and would decline to determine whether it would have been wiser or more prudent to make the bye-law less absolute or will it hold the bye-law to be unreasonable because considerations which the court would itself have regarded in framing such a bye-law have been over looked or reflected by its framers. The principles laid down as aforesaid in Kruse v.
Johnson, (1898) 2 QB 91, 98, 99 and Stattery v. Naylor, (1988) 13 AC 446 have been cited with approval and applied by this Court in Trustees of the Port of Madras v. Aminchand Pyarelal & Ors.,(1976) 1 SCR 721, 733."
33. In Parisons Agrotech Private Limited and Another vs. Union of India and Others, (2015)9 SCC 657, the Hon'ble Supreme Court held:
"14. No doubt, the writ court has adequate power of judicial review in respect of such ::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 34 decisions. However, once it is found that there is sufficient material for taking a particular policy decision, bringing it within the four corners of Article 14 of the Constitution, power of judicial review would not extend to determine the .
correctness of such a policy decision or to indulge into the exercise of finding out whether there could be more appropriate or better alternatives. Once we find that parameters of Article 14 are satisfied; there was due application of mind in arriving at the decision which is backed by cogent material; the decision is not arbitrary or irrational and; it is taken in public interest, the Court has to respect such a decision of the Executive as the policy making is of the domain of the Executive and the decision in question has passed the test of the judicial review.
rt
15. In Union of India v. Dinesh Engg. Corpn., (2001)8 SCC 491, this Court delineated the aforesaid principle of judicial review in the following manner: (SCC pp.498-99, para 12) "12. .....There is no doubt that this Court has held in more than one case that where the decision of the authority is in regard to the policy matter, this Court will not ordinarily interfere since these policy matters are taken based on expert knowledge of the persons concerned and courts are normally not equipped to question the correctness of a policy decision. But then this does not mean that the courts have to abdicate their right to scrutinize whether the policy in question is formulated keeping in mind all the relevant facts and the said policy can be held to be beyond the pale of discrimination or unreasonableness, bearing in mind the material on record. ..... Any decision be it a simple administrative decision or policy decision, if taken without considering the relevant facts, can only be termed as an arbitrary decision. If it is so, then be it a policy decision or otherwise, it will be violative of the mandate of Article 14 of the Constitution."
16. The power of the Court under writ jurisdiction has been discussed in Asif Hameed. v. State of J&K, 1989 Supp.(2) SCC 364: 1 SCEC ::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 35 358 in paras 17 and 19, which read as under:
(SCC pp. 373-74) "17. Before adverting to the controversy directly involved in these appeals we may .
have a fresh look on the inter se functioning of the three organs of democracy under our Constitution. Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity but the Constitution makers have meticulously defined the functions of various organs of the State. Legislature, executive and judiciary have to function within their own of spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion rt by strictly following the procedure prescribed therein. The functioning of democracy depends upon the strength and independence of each of its organs. Legislature and executive, the two facets of people's will, they have all the powers including that of finance. Judiciary has no power over sword or the purse nonetheless it has power to ensure that the aforesaid two main organs of State function within the constitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self-imposed discipline of judicial restraint.
* * *
19. When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the court must strike down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the government. While exercising power of judicial review of administrative action, the court is not an ::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 36 appellate authority. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of .
legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers."
17. The aforesaid doctrine of separation of power and limited scope of judicial review in policy matters is reiterated in State of Orissa v. Gopinath Dash, (2005) 13 SCC 495 : (SCC p.497, paras 5-7) of "5. While exercising the power of judicial review of administrative action, the Court is not the Appellate Authority and the Constitution does not permit the Court to direct or advise the executive in the rtmatter of policy or to sermonise qua any matter which under the Constitution lies within the sphere of the legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory power. (See Asif Hameed v. State of J&K; 1989 Supp (2) SCC 364 and Shri Sitaram Sugar Co. Ltd. v. Union of India; (1990) 3 SCC 223). The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the Court, it cannot interfere.
6. The correctness of the reasons which prompted the Government in decision-
making taking one course of action instead of another is not a matter of concern in judicial review and the Court is not the appropriate forum for such investigation.
7. The policy decision must be left to the Government as it alone can adopt which policy should be adopted after considering all the points from different angles. In the matter of policy decisions or exercise of discretion by the Government so long as the infringement ::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 37 of fundamental right is not shown the courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such .
matters. In assessing the propriety of a decision of the Government the Court cannot interfere even if a second view is possible from that of the Government."
34. The Hon'ble Apex Court in Census Commissioner and Others vs. R.Krishnamurthy, (2015)2 SCC 796 held as under:
of "23. The centripodal question that emanates for consideration is whether the High Court could have issued such a mandamus commanding the appellant to carry out a census rt in a particular manner.
24. The High Court has tried to inject the concept of social justice to fructify its direction.
It is evincible that the said direction has been issued without any deliberation and being oblivious of the principle that the courts on very rare occasion, in exercise of powers of judicial review, would interfere with a policy decision.
25. Interference with the policy decision and issue of a mandamus to frame a policy in a particular manner are absolutely different. The Act has conferred power on the Central Government to issue Notification regarding the manner in which the census has to be carried out and the Central Government has issued Notifications, and the competent authority has issued directions. It is not within the domain of the Court to legislate. The courts do interpret the law and in such interpretation certain creative process is involved. The courts have the jurisdiction to declare the law as unconstitutional. That too, where it is called for. The court may also fill up the gaps in certain spheres applying the doctrine of constitutional silence or abeyance. But, the courts are not to plunge into policy making by adding something to the policy by way of issuing a writ of mandamus. There the judicial restraint is called for remembering what we have stated in the ::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 38 beginning. The courts are required to understand the policy decisions framed by the Executive. If a policy decision or a Notification is arbitrary, it may invite the frown of Article 14 of the Constitution. But when the Notification was .
not under assail and the same is in consonance with the Act, it is really unfathomable how the High Court could issue directions as to the manner in which a census would be carried out by adding certain aspects. It is, in fact, issuance of a direction for framing a policy in a specific manner.
26. In this context, we may refer to a three-
of Judge Bench decision in Suresh Seth V. Commr., Indore Municipal Corporation, (2005)13 SCC 287, wherein a prayer was made before this Court to issue directions for appropriate amendment in the M.P. Municipal Corporation Act, 1956 so that rt a person may be debarred from simultaneously holding two elected offices, namely, that of a Member of the Legislative Assembly and also of a Mayor of a Municipal Corporation. Repelling the said submission, the Court held: (SCC pp.288-89, para 5) "In our opinion, this is a matter of policy for the elected representatives of people to decide and no direction in this regard can be issued by the Court. That apart this Court cannot issue any direction to the legislature to make any particular kind of enactment. Under our constitutional scheme Parliament and Legislative Assemblies exercise sovereign power to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation. In Supreme Court Employees' Welfare Assn. v. Union of India, (1989)4 SCC 187 (SCC para 51) it has been held that no court can direct a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of a subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which it has been empowered to do under the delegated legislative authority. This view has been reiterated in state of J & K v A.R. Zakki,1992 Supp(1) SCC 548. In A.K. Roy v. Union of India, (1982)1 SCC 271it ::: Downloaded on - 15/04/2017 21:17:36 :::HCHP 39 was held that no mandamus can be issued to enforce an Act which has been passed by the legislature."
35. Consequently, in view of the aforesaid .
discussion, we do not see any reason to invoke extra ordinary jurisdiction of this Court to issue writ of mandamus, commanding respondents to stop the construction of Govt. Degree College at village Tikker, of District Sirmaur.
36. Viewed thus, the present petition is rt dismissed being devoid of any merit, alongwith pending application(s), if any.
37. Interim directions, if any, shall stand vacated.
(Mansoor Ahmad Mir)
Chief Justice
22nd September, 2016 (Sandeep Sharma)
(sanjeev) Judge
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