Gujarat High Court
Chunilal Harmanchand vs State Of Gujarat & 4....Opponent(S) on 31 July, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
C/WPPIL/21/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 21 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation
of the Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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CHUNILAL HARMANCHAND....Applicant(s)
Versus
STATE OF GUJARAT & 4....Opponent(s)
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Appearance:
MR. SHALIN MEHTA with MS VIDHI J BHATT, ADVOCATE for the Applicant(s) No. 1
MR PARTH BHATT, ASSTT. GOVERNMENT PLEADER for the Opponent(s) No. 1
MR. MIHIR JOSHI, SR. COUNSEL with MR S.N. SPOARKAR & MR AMAR N BHATT, ADVOCATES for the
Opponent(s) No. 3
MR VIMAL PUROHIT with MR SP MAJMUDAR, ADVOCATE for the Opponent(s) No. 4
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CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date :31/07/2014
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) Page 1 of 32 C/WPPIL/21/2014 CAV JUDGMENT By this writ application in the nature of a Public Interest Litigation, the petitioner claiming to be a member of the respondent no.3 Society, has prayed for the following reliefs.
"(A) Be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents Authorities, more particularly, respondent No.2 to cancel the NA permission granted vide order dated 07.03.2012 for Final Plot No.269 of Village: Vastrapur, District: Ahmedabad, as having been obtained by misrepresentation and being illegal and against public interest.
(AA) Be pleased to declare that the non agricultural use permission issued by respondent no.2 vide order dated 7.3.2012 in favour of respondent no.3 and 4 is inconsistent and incompatible with the notification dated 8.1.74 of the State Government issued under section 88 of the Bombay Tenancy and Agricultural Lands Act 1948, and therefore, liable to be quashed and set aside.
(AB) Be pleased to declare the transfer of land bearing final plot No.269 of village Vastrapur, District Ahmedabad from Respondent no.3 to respondent no.4 illegal, null and void because the same is in violation of the notification dated 8.1.1974 of the State Government that mandates that the land be used for the purpose of education only and not for any other purpose.Page 2 of 32 C/WPPIL/21/2014 CAV JUDGMENT
(AC) Be pleased to pass a cease and desist order to permanently restrain the respondent no.3 and 4 from using land bearing final Plot No.269 of village Vastrapur, District Ahmedabad, for any purpose other than education and to not make any other use of it that violates the purpose stated in the notification dated 8.1.1974 of the State Government.
(AD) Be pleased to issue a writ of mandamus directing respondents no.1 and 2 to take action and measures forthwith to ensure that no commercial development is carried out by the respondent no.3 and 4 in violation of the notification dated 8.1.1974 of the State Government on final plot No.269 of village Vastrapur, District Ahmedabad;
(AE) Be pleased to issue a writ of mandamus to direct respondents no.1 and 2 to take steps forthwith to resume possession of final plot No.269 from respondent nos.3 and 4 for committing a violation of the State Government notification dated 8.1.1974.
(B) Be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, prohibiting the respondent No.3 from entering into sale deed in favour of respondent No.4 and also quash and set aside the order of the Charity Commissioner dated 09.07.2013 as having been entered into by fraud and misrepresentation.Page 3 of 32 C/WPPIL/21/2014 CAV JUDGMENT
(C) Pending admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to direct the respondents to maintain status-quo and not permit any additional construction or alienation or change in nature of the land bearing F.P. No.269, of Village: Vastrapur, Dist. Ahmedabad.
(D) Grant ex parte ad interim relief in terms of para (A) to (C) above"
2. The case made-out by the petitioner may be summed up thus:
(i) According to the petitioner, he is a member of the respondent no.3 society, viz., Ahmedabad Education Society, established in the year 1935 under the Societies Registration Act and thereafter registered as a Trust in the year 1953 under the provisions of the Bombay Public Charitable Trusts Act, 1950.
(ii) According to the petitioner the society's main objective is to promote education. The present petition has been filed in the public interest for two reasons, i.e. (1) the actions of the Trustees of the respondent no.3 Society are proving to be detrimental to the interest of the society in so far as the permanent immovable assets are concerned being alienated contrary to the provisions of law and the objective of the society, and (2) the manner in which the alienation has been carried out, smacks of lack of bonafide, as the exemption was sought for a specific purpose i.e. the education and whereas the Page 4 of 32 C/WPPIL/21/2014 CAV JUDGMENT lands have been alienated for commercial use in contravention of the provisions of the Bombay Tenancy & Agricultural Lands Act.
(iii) The respondent no.3 society was formed in the year 1939 with the sole object of promoting education. As on date the society runs and manages more than 22 educational institutions in the City of Ahmedabad, with the help of the donation received from the people at large. According to the petitioner, the respondent no.3 as a Society could not have directly purchased the agricultural lands within the State of Gujarat in view of the restrictions imposed by the provisions of the Bombay Tenancy & Agricultural Lands Act, 1948 (for short "the Act, 1948"). In order to purchase and hold the agricultural land, permission was sought for from the respondent no.2 Collector. The permission was granted by the respondent no.2 Collector under the provisions of Sec.63 of the Act, 1948, to the respondent no.3 society for the purchase of lands in question including the land subsequently designated as the Final Plot No.269 of Village Vastrapur, District Ahmedabad.
(iv) It is the case of the petitioner that one of the conditions imposed in the order of permission was that the Trust must use the land for the educational purpose only within a period of three years. However, the land in question was not used for the said purpose within the stipulated period.
(v) According to the petitioner, on 8th January, 1974, the Page 5 of 32 C/WPPIL/21/2014 CAV JUDGMENT Revenue Department of the State Government issued a Notification in exercise of the powers conferred by Clause-(b) of Sub-Sec.(1) of Sec. 88 of the Act of 1948 specifying few parcels of land as being reserved for the Non-Agricultural development. The said Notification was issued by the State Government since the Government was of the opinion that it would be desirable to do so for the educational purpose.
(vi) The parcels of lands which the Trust purchased in the year 1956 were also included in the Notification dated 8 th January, 1974 issued by the State Government under Sec.88(1)(b) of the Act of 1948
vii) In spite of the same, the respondent no.3 Trust decided to sell the Final Plot No.259 situated at Vastrapur after obtaining the permission from the Charity Commissioner.
According to the petitioner the society took the decision of selling the plot on the pretext that a sum of Rs.200 crore was required for the establishment of the Ahmedabad University. Even the Articles of Association do not provide any such authority to the Society to sell its parcels of land for the purpose of creating a corpus to establish any other institution like Ahmedabad University.
(viii) It is also the case of the petitioner that a Memorandum of Understanding was entered into between the respondent no.3 society and the State Government for setting-up of the Ahmedabad University. The Memorandum of Understanding was entered into only Page 6 of 32 C/WPPIL/21/2014 CAV JUDGMENT with a view to overcome the provisions of the Bombay Public Trusts Act. The Memorandum of Understanding states that the money for the setting-up of the University is to be provided by the society and the appropriate permission as well as other administrative modalities would be worked-out by the State Government.
(ix) It is also the case of the petitioner that the Office of the respondent no.2 Collector had raised certain objections with the respondent No.7 pursuant to the advertisement issued by the society for sale of the land on the ground that the interest of the State Government might be affected. Accordingly, the respondent no.7 Charity Commissioner was requested not to grant the permission without the prior approval from the District Collector. The grievance of the petitioner is that, despite such communications by the Collector to the Charity Commissioner, the Charity Commissioner ignored the same and proceeded to grant the permission in favour of the society.
(x) According to the petitioner, the malafide on the part of the society is writ large because on 17th February, 2011 an affidavit was filed on behalf of the society inter alia stating that the land of Plot No.269 was not declared as a surplus land under the provisions of the Urban Land Ceiling Act. On 19th April, 2011 the Society preferred an application seeking N.A. permission under sec. 65 of the Bombay Land Revenue Code on the false pretext that if the land would be sold by the society with the necessary N.A. permission, then the society would be able to Page 7 of 32 C/WPPIL/21/2014 CAV JUDGMENT procure a higher sale price and that would be in the interest of the society.
(xi) It is also the case of the petitioner that the society misled the Collector by stating in its letter dated 30 th November, 2011 that the lands in question were to be used for construction of Staff Quarters and Students Hostel. According to the petitioner, on one hand the society represented that the N.A. Permission was sought for as it would facilitate in fetching higher amount, whereas before the Collector, it was represented that the same was required for construction of Staff Quarters and the students' hostel.
(xii) According to the petitioner, the respondent no.2 granted the N.A. permission in favour of the society vide order dated 7th March, 2012. The respondent no.7 i.e. the Charity Commissioner on the other hand granted permission to hold the auction proceeding after issue of the Public Notice. The Notice of Auction was published in the various newspapers dated 29 th June, 2012 and 2nd July, 2012 respectively.
(xiii) According to the petitioner, the Mamlatdar also raised objections before the Charity Commissioner on behalf of the State Authorities stating that if the land was sold, then there would be a breach of the Notification of 1974 and the action on the part of the Society would amount to profiteering.
(xiv) However, the Charity Commissioner vide order dated 9 th Page 8 of 32 C/WPPIL/21/2014 CAV JUDGMENT July, 2013 granted the permission in favour of the society under Sec. 36 of the Bombay Public Trusts Act to transfer the land in question in favour of the respondent no.4 M/s.Sumedha Space Links for a total sale consideration of Rs.137 crore.
(xv) It is the case of the petitioner that one Shri Tushar Patel, a resident of Ahmedabad, filed a Writ Petition in the nature of a Public Interest Litigation before this Court with respect to the same subject matter praying for cancellation of the N.A. permission dated 7th March, 2012 and also for a direction upon the society not to enter into any sale transaction pursuant to the order dated 9 th July, 2013 passed by the Charity Commissioner.
(xvi) It is the case of the petitioner that the Writ Petition being PIL No.210/2013 filed by Shri Tushar Patel was rejected by this Court on various grounds.
(xvii) According to the petitioner he being one of the members of the society although was not a party in the earlier proceedings of PIL No.210/2013 filed by Shri Tushar Patel yet thought fit to prefer an S.L.P. (CC) No.20500 of 2013 before the Supreme Court seeking leave to appeal against the judgment and order passed by this Court dated 24th October, 2013 in PIL No. 210 of 2013.
(xviii) According to the petitioner, the Supreme Court vide order dated 9th December, 2013 granted permission to him being member of the Society to file an appropriate petition before this Court for redressal of his grievance.
Page 9 of 32 C/WPPIL/21/2014 CAV JUDGMENTAccordingly, on the strength of such order being passed by the Supreme Court, the petitioner has moved the present application in public interest.
(xix) Thus, according to the petitioner, the respondent no.3 society should be restrained from transferring the plot of land in question in favour of the respondent no.4 and the society should be directed to use the said plot only for the purpose of education only and none other.
3. Stance of the Respondent no.3 Society:
A) This petition in the nature of a public interest litigation is not maintainable. The petitioner is a member of the Society and, therefore, is a beneficiary. The petitioner has suppressed the fact that he had contested the election of the governing council of the AES in the year 2010 and had lost. In the past the petitioner had instituted various frivolous litigations against the society in collusion with Mr. Tushar Patel (the petitioner of PIL No.210/2013). Mr. Tushar Patel had also filed two other writ applications in public interest being PIL No.275 of 2012 and PIL No.217 of 2013 respectively in connection with other two parcels of land of the society.
(B) According to the society, the petitioner herein is none other than a stooge of Shri Tushar Patel who had lost in several litigations against the society including PIL Nos. 275/2012, 210/2013 and 217/2013.
(C) This petition under the garb of a Public Interest Litigation is nothing but an attempt to create hindrance in the smooth Page 10 of 32 C/WPPIL/21/2014 CAV JUDGMENT functioning of the A.E.S. According to the society, after obtaining all the necessary permissions from the competent authorities the plot of land has been transferred in favour of the respondent no.4 for a total sale consideration of Rs.1,37,01,00,000/- (One hundred thirty seven crore and one lakh only). This amount is to be utilized for the establishment of the Ahmedabad University which is one of the prime projects of the society.
(D) The issues sought to be raised in this petition are similar to the issues raised in Writ Petition (PIL) No.210/2013 filed by Shri Tushar Patel.
(E) The petitioner has personal interest and therefore, has filed the present petition only with a view to harass and malign the society.
(F) It has been denied that the land in question ought to have been vested with the Government or any of the actions of the Trustees is against the interest of the society.
(G) According to the society after the order dated 24 th October, 2013 passed by this Court in Writ Petition (PIL) No.210 of 2013, the sale deed was registered on 23 rd January, 2014. The Society has received a total sale consideration to the tune of Rs.1,37,01,00,000/- (Rupees one hundred thirty seven crore and one lakh only). The entire amount of Rs.1,37,01,00,000/- has been invested by way of a Fixed Deposit and the interest accrued thereon will be utilized only for the educational purposes and the objects of the Society.Page 11 of 32 C/WPPIL/21/2014 CAV JUDGMENT
(H) According to the Society there is cogent and convincing evidence on record to indicate that the present petition is not bonafide and has been filed at the instance of Shri Tushar Patel who lost before this Court in the earlier round of Writ Petitions relating to the same subject matter. According to the petitioner, the petitioner describing himself as Shri Chunilal Harmanchand had filed JMA No.53 of 2006 under section 41A of the Bombay Public Trusts Act before the Charity Commissioner with a prayer to conduct the election through the Charity Commissioner and not the society on its own and also for a check on the election process. Such application was rejected on 25th October, 2006 along with J.M.A.No.47 of 2006 filed by Shri Tushar Patel as Partner of Shree Geeta Woodworks and Saw Mill.
(I) The petitioner describing himself as the Proprietor of Shri Chunilal Harmanchand along with others had filed J.M.A. No.17 of 2009 under Section 41A of the Bombay Public Trusts Act inter alia raising disputes with respect to the Membership rights/voting rights which had been rejected by the Charity Commissioner vide order dated 2nd June, 2010.
(J) The petitioner describing himself as Shri Chunilal Harmanchand along with others had filed objections against the A.E.S. in the Change Report No.416/2007 filed by the Society before the Deputy Charity Commissioner and had challenged the elections of the A.E.S. held in 2007. The matter was transferred to the Assistant Charity Commissioner, Nadiad who subsequently allowed the said Change Report No.416/2007 in favour of the Society. An application was filed by Shri Tushar Patel for impleading him and the others Page 12 of 32 C/WPPIL/21/2014 CAV JUDGMENT including the petitioner herein as party to the said Change Report No.416/2007 which was rejected by the Assistant Charity Commissioner qua the petitioner and others except Shri Tushar Patel vide order dated 20 th November, 2009.
Thereafter, the Change Report No.416/2007 was decided in favour of the Society against which an appeal No.68/20010 was filed by Shri Tushar Patel and the same was also dismissed by the Charity Commissioner. Against the said orders, the Civil Misc. Application No.909 of 2011 filed by Shri Tushar Patel is pending as on today in the Ahmedabad City Civil Court.
(K) According to the Society, the petitioner is hand-in-glove with Shri Tushar Patel who had earlier filed three Public Interest Litigations before this Court and had lost.
(L) It is also the case of the Society that the following circumstances would pin pointedly suggest that the present petition is at the instance of Shri Tushar Patel.
"(a) Annexure 'B' to this petition is a photocopy of Annexure 'A' of WP (PIL) No.210 of 2013. The Page Nos.22A to 22F and 23 of Annexure-A of WP (PIL) No.210 of 2013 can be seen struck off in Annexure-
B to this petition which are given Page Nos.56 to 62. Similarly, Annexure-C to WP (PIL) No.210 of 2013 is used by the Petitioner as Annexure-K in this Petition by striking of page Nos. of Annexure-C to WP (PIL) No.210 of 2013. Similarly, as Annexure-M to this petition is a photocopy of Annexure 'B' t WP (PIL) No.210 of 2013 which is clear from the fact that the Page Nos.24 to 71 of Annexure-B to WP (PIL) No.210 Page 13 of 32 C/WPPIL/21/2014 CAV JUDGMENT of 2013 are shown struck off in Annexure-M to this Petition at Pages 151 to 198. Similarly, Page Nos.123 to 150 of this Petition are photocopies as page Nos.71A to 71Z2 of WP (PIL) No.210 of 2013.
(b) This Petition was listed for the first time on 16/01/2014 and thereafter on two more occasions, Mr. Tushar Patel had remained present on almost all occasions, when the representative of AES was also present in the Court. It was learnt that on 14/02/2014 also Mr. Tushar Patel was present in the Court when the matter was heard. Thus, it is clear that this petition has been filed at the instance of said Mr. Tushar Patel and in collusion with him."
(M) At no point of time the petitioner had raised any objection before any authority until the three Public Interest Litigations were filed by Mr. Tushar Patel.
4. Submissions on behalf of the Petitioner :
A) Mr. Shalin Mehta, the learned Senior Advocate appearing on behalf of the petitioner has vehemently submitted before us that in view of the order passed by the Supreme Court dated 9/12/2013 referred to above, the present petition is maintainable in the form of a Public Interest Litigation and although this Court, in the past, had decided all the issues raised in this petition pursuant to the PIL No.210/2013 filed by Shri Tushar Patel, yet liberty has been granted by the Supreme Court in favour of the petitioner herein to redress his grievance being a member of the respondent no.3 society. According to Page 14 of 32 C/WPPIL/21/2014 CAV JUDGMENT Mr. Mehta, the Supreme Court has observed in its order that the High Court shall consider the matter afresh, in accordance with law and without being influenced in any manner by its observations made in the judgment of Writ Petition (PIL) No.210/2013.
B) Mr. Mehta submits that in view of the order passed by the Supreme Court all the issues deserve to be reconsidered once again on merits. Mr. Mehta has once again reiterated all the submissions which were canvassed by him in Writ Petition (PIL) No.210/2013. In such circumstances, Mr. Mehta prays that the petition merits consideration and the reliefs prayed for in public interest deserves to be granted.
5. Submissions on behalf of the respondent no.3 Society:
A) Mr. Mihir Joshi, the learned Senior Advocate appearing on behalf of the society, has vehemently opposed this petition and submits that the same is nothing short of abuse of process of law. Mr.Joshi submits that although the Supreme Court has granted the permission to the present petitioner to file appropriate petition for redressal of his grievance, yet this petition as a Public Interest Litigation is not maintainable at the instance of the petitioner.
B) According to Mr.Joshi, the Court need not go into the merits of the submissions raised on behalf of the petitioner as the petition deserves to be rejected solely on the ground of lack of bonafide and collusion with Shri Tushar Patel who lost before this Court in all the three petitions earlier filed in the nature of Public Interest Litigations. Mr.Joshi submits that if Page 15 of 32 C/WPPIL/21/2014 CAV JUDGMENT the petitioner as a member of the society is in any way aggrieved by the action of the society, then in such circumstances, he can in his individual capacity challenge the action before the appropriate Court, but at least not under the garb of public interest.
C) Mr.Joshi has very vociferously contended before us that the Court should discourage such type of litigations at the instance of unscrupulous litigant like the petitioner herein as the litigation under the garb of public interest is nothing but to settle personal vendetta and to create hindrance in one way or the other in the smooth functioning of the administration of the society. According to Mr.Joshi, the persons like the present petitioner, are all disgruntled and on one pretext or the other keep on seizing opportunity to malign the trustees for their own vested interest.
D) Mr.Joshi submitted that a true Public Interest Litigation is the one in which a selfless citizen having no personal motive of any kind, except either compassion for the weak and disabled or deep concern of stopping serious public injury, approaches the Court for either of the following purposes:
i) Enforcement of the fundamental rights of those who genuinely do not have adequate means of access to the judicial system, or statutory provision incorporating the directive principles of the State Policy for amelioration of their condition;
ii) Prevent or analyzing executive acts and omissions violative of the constitution or law resulting in substantial Page 16 of 32 C/WPPIL/21/2014 CAV JUDGMENT injury to the public.
E) Mr.Joshi further submitted that howsoever genuine a cause brought before the Court by the Public Interest Litigants may be, the Court should decline its examination at the behest of the persons like the present petitioner, who, in fact, are not public interest litigants and whose bonafides and credentials are in doubt.
F) Mr. Joshi, in such circumstances referred to above, prays that there being no merit in this petition, the same deserves to be rejected with heavy costs for unnecessarily dragging a well reputed society in a frivolous litigation.
6. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration in this Public Interest Litigation is whether this petition should be entertained as a bonafide public interest litigation.
7. Ordinarily, the Court would allow a litigation in public interest 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 the relief is sought for its enforcement;
(ii) that the action complained of is palpably illegal or malafide and affects the group of persons who are not in a position to protect their own interest on account of Page 17 of 32 C/WPPIL/21/2014 CAV JUDGMENT poverty, incapacity or ignorance;
(iii) that the person or a group of persons 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 busybody or a meddlesome interloper and have not approached with malafide intention of vindicating their personal vengeance or grievance;
(v) that the process of public interest litigation was not being abused by politicians or other busybodies 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 judiciary 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 Page 18 of 32 C/WPPIL/21/2014 CAV JUDGMENT information laid before the Court was of such a nature which required examination;
(ix) that the person approaching the Court has come with clean hands, clean heart and clean objectives;
8. That before taking any action in public interest, the Court must be satisfied that its forum was not being misused by any unscrupulous litigant, politician, busybody or persons or groups with malafide objective of either for vindication of their personal grievance or by resorting to blackmailing or considerations extraneous to public interest.
9. In the case of Shri Sachidanand Pandey Vs. State of West Bengal, reported in AIR 1987 SC 1109, the Supreme Court observed as follows :-
"Today public spirited litigants rush to file cases in profusion under this attractive name. They must inspire confidence in Courts and among the public. They must be above suspicion. Public Interest Litigation has now come to stay. But one is led to think that it poses a threat to Courts and public alike. Such cases are now filed without any rhyme or reason. It is therefore necessary to lay down, clear guidelines and to outline the correct parameters for entertainment of such petitions. If Courts do not restrict the free flow of such cases in the name of Public Interest Litigation, the traditional litigation will suffer and the Courts of law, instead of dispensing justice, will have to take upon themselves Administrative and executive functions. This does not mean that traditional litigation should stay out. They have to be tackled by other effective methods, like decentralizing the judicial system and entrusting majority of traditional litigation to Village Courts and Lok Adalats without the usual populist stance and by a complete restructuring of the procedural law which is the villain in delaying Page 19 of 32 C/WPPIL/21/2014 CAV JUDGMENT disposal of cases....
It is only when Courts are apprised of gross violation of fundamental rights by a group or a class action or when basis human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the Courts, especially the Supreme court, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the underdog and the neglected. It is necessary to have some self-imposed restraint on Public Interest Litigants."
10. In a recent pronouncement of the Hon'ble Supreme Court in the case of State of Uttaranchal Vs. Balwant Singh Chaufal and Ors., reported in (2010) 3 SCC 402, in paragraphs 178, 179, 180 and 181, the Supreme Court laid down the following guidelines relating to Public Interest Litigation:-
"178. We must abundantly make it clear that we are not discouraging the Public Interest Litigation in any manner, what we are trying to curb is its misuse and abuse. According to us, this is a very important branch and, in a large number of PIL petitions, significant directions have been given by the Courts for improving ecology and environment, and the directions helped in preservation of forests, wildlife, marine life etc. It is the bounden duty and obligation of the Courts to encourage genuine bonafide PIL petitions and pass directions and orders in the public interest which are in consonance with the Constitution and the laws.
179. The Public Interest Litigation, which has been in existence in our country for more than four decades, has a glorious record. This Court and the High Courts by their judicial creativity and craftsmanship have passed a number of directions in the larger pubic interest in consonance with the inherent spirits of the Constitution. The conditions of marginalized and vulnerable section of society have significantly improved on account of Court's directions in PIL.Page 20 of 32 C/WPPIL/21/2014 CAV JUDGMENT
180. We have carefully considered the facts of the present case. We have also examined the law declared by this Court and other Courts in a number of judgments. In order to preserve the purity and sanctity of the PIL, it has become imperative to issue the following directions:
(1) The Court must encourage genuine and bonafide PIL and effectively discourage and curb the PIL filed for extraneous consideration.
(2) Instead of every individual judge devising his own procedure for dealing with the Public Interest Litigation, it would be appropriate for each High Court to properly formulates rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives.
Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to the Secretary General of this Court immediately thereafter.
(3) The Courts should prima-facie verify the credentials of the petitioner before entertaining a PIL.
(4) The Courts should be prima-facie satisfied regarding the correctness of the contents of the petition before entertaining petition.
(5) The Courts should be fully satisfied that substantial public interest is involved before entertaining the petition.
(6) The Court should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions.
(7) The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the Public Interest Litigation.
(8) The Courts should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions Page 21 of 32 C/WPPIL/21/2014 CAV JUDGMENT and the petitions filed for extraneous considerations."
11. In a much recent pronouncement of the Hon'ble Supreme Court in the case of P. Seshadri Vs. S.Mangati Gopal Reddy and Ors., reported in (2011) 5 SCC 484, the Supreme Court has observed that :-
"Public Interest Litigation can only be entertained at the instance of bonafide litigants. It cannot be permitted to be used by unscrupulous litigants to disguise personal or individual grievances as Public Interest Litigations. The Supreme Court does not approve of an approach that would encourage petitions filed for achieving oblique motives on the basis of wild and reckless allegations made by individuals i.e. busybodies, having little or not interest in the proceedings. The credentials, the motive and the objective of the petitioner have to be apparently and patently aboveboard. Otherwise the petition is liable to be dismissed at threshold."
12. It may not be out of place to mention here that we heard the learned counsel appearing for the parties on the question of maintainability of this PIL and the locus standi of the petitioner, and also on the question in the event we answer the first two questions in favour of the petitioner, whether the petition should be entertained as a bonafide public interest litigation.
13. We first propose to deal with the preliminary objection raised by Mr.Joshi, the learned Senior Advocate appearing for the Society, as regards the maintainability of this petition as a Public Interest Litigation.
14. It is not in dispute that the subject matter of the present Page 22 of 32 C/WPPIL/21/2014 CAV JUDGMENT petition is the same as that of Writ Petition (PIL) no.210 of 2013 filed by one Shri Tushar Patel. In Writ Petition (PIL) no.210 of 2013 manifold grounds were raised with a view to highlight that the action of the society in selling one of its plots was not in accordance with law. After considering the petition at length and dealing with all the submissions which were raised before us, we thought fit to reject the petition being PIL No.210 of 2013 not only on merits but also on the round that the petition was not filed bonafide and there was cogent and convincing evidence to show that the petitioner of PIL No.210 of 2013 had left no stone unturned to harass the trustees of the society with an oblique motive. In our earlier decision rendered in the PIL No.210 of 2013 we also took notice of the list of various litigations which were instituted by Shri Patel against the Trust.
15. It appears that the petitioner herein approached the Hon'ble Supreme Court with a prayer for Leave to Appeal against our judgment and order dated 24 th October, 2013 in Writ Petition (PIL) No.210 of 2013.
16. For better adjudication of the preliminary objection raised by Mr.Joshi as regards the maintainability of this petition as a Public Interest Litigation, it would be expedient to look into the order passed by the Supreme Court dated 9 th December, 2013. The order of the Supreme Court reads as under :
"S.L.P. (C) No... CC No.20500 of 2013:
The High Court, while hearing a public interest litigation filed by Tushar J. Patel, held that the petition in the form Page 23 of 32 C/WPPIL/21/2014 CAV JUDGMENT of public interest litigation was not bona fide and has been filed with oblique motive. Having held so, the High Court went into the legality and validity of alienation of Plot No. 269 by the Ahmedabad Education Society. In our view, the High Court ought not to have gone into the merits of the matter when it held that the petition in the form of public interest litigation was not bona fide and genuine.
2. Since the petitioner, being member of the respondent No.2 -Society, intends to approach the High Court for redressal of his grievance, we are satisfied that it is not necessary to entertain this special leave petition and interest of justice shall be sub-served if the petitioner is granted liberty to approach the High Court for redressal of his grievance.
3. We observe that if the petitioner approaches the High Court for redressal of his grievance, the High Court shall consider the matter afresh appropriately, in accordance with law uninfluenced by the observations made in the impugned order concerning the merits of the matter. Obviously the opposite party shall be free to raise all objections in opposition to the writ petition before the High Court and those objections too shall be considered in accordance with law. In order to avoid multiple writ petitions with regard to the subject matter, it is made clear that besides the petitioner, no other writ petition shall be entertained by the High Court.
4. In view of the above, no order needs to be passed Page 24 of 32 C/WPPIL/21/2014 CAV JUDGMENT on the application for permission to file special leave petition."
17. Again it may not be out of place to state that Mr. Tushar Patel had filed three Writ Petitions in the nature of Public Interest Litigation with respect to three parcels of land. We rejected all the three applications. It also appears that Mr. Tushar Patel had also approached the Supreme Court by way of Special Leave Petition No.36328 of 2013. However, the Supreme Court refused to entertain the same and dismissed the S.L.P. The order reads thus:
"S.L.P. (C) No. 36328 of 2013 :
Heard Mr.Shekhar Naphade, learned senior counsel for the petitioners.
The view of the High Court in not treating the writ petition filed by the petitioners as bona fide public interest litigation cannot be said to suffer from any legal error.
Special leave petition is, accordingly, dismissed."
18. If we go by the record, then the Society has sold three of its scattered plots with a view to raise the necessary funds for the establishment of the Ahmedabad University. However, the petitioner has thought fit to challenge the action of the society only with regard to one of its plots being Plot No.269 situated at Vastrapur. Be that as it may, it is very clear from the order passed by the Supreme Court that we have been directed to Page 25 of 32 C/WPPIL/21/2014 CAV JUDGMENT consider the matter afresh, appropriately, in accordance with law and without being influenced in any manner by our earlier observations made in Writ Petition (PIL) No.210 of 2013. At the same time, the Supreme Court has also observed that the respondents shall also be free to raise all objections in opposition to the present petition and those objections shall also be considered in accordance with law. With a view to avoid multiple writ petitions with regard to the subject matter, the Supreme Court also made it clear that besides the petitioner herein no other writ petition shall be entertained by the High Court.
19. Mr. Joshi has invited our attention to the following averments made by the petitioner in its additional affidavit-in- rejoinder to the additional affidavit dated 19th February, 2014 filed by the society.
"My Special Leave Petition was disposed of with the direction that if I were to approach the High Court for redressal of my grievance the High Court would consider the matter afresh appropriately, in accordance with law uninfluenced by the observations made in the impugned order concerning the merits of the matter. In fact, in my application for permission to file Special Leave Petition, I had made categorical reference to the public interest litigation filed by Tushar Patel. I had also mentioned that as I was a member of the respondent No.3 society, my rights were being directly and substantially affected by the illegal acts of the respondent No.3 society by which my society's valuable assets meant for educational Page 26 of 32 C/WPPIL/21/2014 CAV JUDGMENT purpose were being sold to developers and builders for construction of residential/commercial complexes.
My grievance is that valuable agricultural lands in possession of respondent No.3 society, which are to be used for educational purpose only, are being diverted by respondent No.3 society for commercial exploitation. May be, my grievance is the same as that of Tushar Patel, but I am not stopped from raising the selfsame grievance in this Court, by way of this public interest litigation because express permission has been granted to me by the Supreme Court, by order dated 09/12/2013. The annexures of Writ Petition (PIL) 210 of 2013 are in the public domain and they constitute public documents or public record. So, assuming for arguement that I have used photocopies of the annexures filed in Writ Petition (PIL) No.210 of 2013 for filing this public interest litigation, which were available to me before I filed Special Leave Petition in the Supreme Court, no inference be drawn that I am in collusion with Tushar Patel or that this public interest litigation is inspired or motivated by Tushar Patel. These circumstance cannot be held against me for the purpose of making good the argument that I am in collusion with Tushar Patel."
20. Mr.Joshi submitted that even according to the petitioner, his individual rights as a member of the respondent no.3 society were being directly and substantially affected by the alleged illegal acts of the society and, therefore, in such circumstances it was not open for the petitioner to file this petition in the nature of Public Interest Litigation, but if his Page 27 of 32 C/WPPIL/21/2014 CAV JUDGMENT individual rights are affected then he may take recourse of any other legal remedy available in law before the appropriate Forum.
21. Mr. Mehta, the learned Senior Advocate appearing on behalf of the petitioner in reply to the same, submitted that assuming for the moment that the present action is at the instance of a private individual, yet the Writ Petition has wider ramifications. The alleged actions of the society would not only affect the writ petitioner in his individual capacity, but also others who would be similarly situated. Such cases may not be dealt with as individual cases. According to Mr. Mehta in appropriate cases like the one on hand, such litigation may be regarded as a Public Interest Litigation. Mr. Mehta submitted that even if it is not so regarded, the Court may consider the same to be "Public Law Litigation". Mr. Mehta in support of his submissions, has relied on few decisions of the Supreme Court, but it is not necessary for us to discuss those decisions as regards the maintainability of this petition as a Public Interest Litigation as we are of the opinion, having regard to the issues raised, that it could still fall within the ambit of a public interest litigation. Therefore, we hold that this petition in the nature of a Public Interest Litigation is maintainable. However, maintainability is one thing, whereas involvement of a genuine public interest is the other. Even if a person has locus standi, the issue raised by him may, yet be non-justiciable. There may be degrees of justiciability. If any interest of the beneficiaries like the present petitioner, as claimed by him, is affected, then only the restricted class of its beneficiaries would be entitled to move the Court. This is not a case where a public interest in its wide sense is involved, or Page 28 of 32 C/WPPIL/21/2014 CAV JUDGMENT the public rights of a large, almost unrestricted body of individuals, is involved.
22. However, the matter does not rest over here. The second and the most important question we need to answer is the bonafide of the petitioner and the genuineness of this P.I.L.
23. Having regard to the materials on record and the manner in which this litigation has proceeded, we have no doubt whatsoever in our mind that the petitioner herein is none other than a stooge of Mr. Tushar Patel. The materials on record indicate that the present petitioner has also left no stone unturned to harass the Society, more particularly, the Trustees by unnecessarily instituting frivolous litigations for his own vested interest in collusion with persons like Shri Tushar Patel. It has been stated on oath on behalf of the society that all the documents which were annexed by Shri Tushar Patel in his Writ Petition (PIL) No.210 of 2013 have been used by the present petitioner in this petition, by only striking of the page numbers. It has also been stated on oath that in the course of hearing of this petition Mr. Tushar Patel also remained present. Within four days from the date of the order passed by the Supreme Court the petitioner was able to obtain the necessary documents from Mr. Tushar Patel and thereafter this petition was filed. What has really taken us by surprise is the timing of the filing of this petition. What has been challenged before us are the orders passed way back in the year 2012. There is no explanation worth the name coming at the end of the petitioner as to why he waited till 2014 in redressing his grievance against the Society in public interest. Mr. Tushar Patel had claimed that he had no connection Page 29 of 32 C/WPPIL/21/2014 CAV JUDGMENT whatsoever with the society but as a public spirited citizen, he had thought fit to file the Public Interest Litigation, but in the case of the petitioner he claims to be the member of the society and also states that his individual rights as a member were being infringed. Being a member of the society he is presumed to be in knowledge of all the decisions of the society, yet he waited till the last. The thumping documentary evidence placed on record goes to show that the petitioner along with Mr. Tushar Patel has been in litigation with the society for one reason or the other without any bonafide. In all the proceedings so far, the petitioner and Mr. Tushar Patel have lost. if the petitioner is so much concerned about the interest of the Society, then what had stopped him from challenging the order passed by the Charity Commissioner almost two years back according permission to the Society to put the plot to auction. What had stopped him from even raising an objection before the Charity Commissioner regarding the land in question when notice was issued by the Charity Commissioner inviting objections, if any, from people at large. The order of the Charity Commissioner granting permission to the society is also appealable under the provisions of the Bombay Public Trusts Act, before the Gujarat Revenue Tribunal. These are the few questions, the answer to those are quite obvious, but at the same time very much relevant for determining the bonafide of the petitioner.
24. In the present case, not only the bonafides and credentials of the petitioner are beyond doubt, but there is no such public cause brought to our notice, which, if not looked into, would result into public injury. In the words of the Supreme Court, a Writ Petitioner, who comes to the court for Page 30 of 32 C/WPPIL/21/2014 CAV JUDGMENT relief in public interest, must come not only with clean hands like any other writ petitioner, but also with a clean heart, clean mind and clean objective [See Ramjas Foundation Vs. UOI - 1993 (Supplementary) 2 SCC -20]
25. In the present case, we do not find anything clean, not to speak of clean hands or clean heart or clean mind or clean objective. The only objective seems to be to harass the society and the circumstances indicated above suggests that the petition is at the instance of Mr. Tushar Patel who lost before us in the earlier round of litigations with regard to the same subject matter and the petitioner is none other than the stooge of Shri Patel.
26. This petition fails and is hereby rejected. In the facts and circumstances of the case, we impose an exemplary costs of Rs.25,000/- upon the petitioner for unnecessarily dragging the society in a frivolous litigation. The petitioner is directed to deposit the amount of Rs.25,000/- with the respondent no.3 Society within a period of one week from today, failing which it will be open for the Society to recover the same in accordance with law.
(BHASKAR BHATTACHARYA, C.J.) (J.B.PARDIWALA, J.) Mohandas FURTHER ORDER After this order is passed, Ms. Bhatt, the learned Page 31 of 32 C/WPPIL/21/2014 CAV JUDGMENT advocate appearing on behalf of the petitioner prays for stay of operation of our order.
In view of what has been stated above, we find no reason to stay our order. The prayer is rejected.
(BHASKAR BHATTACHARYA, C.J.) (J.B.PARDIWALA, J.) Mohandas Page 32 of 32