Madhya Pradesh High Court
Aabid Hussain vs Union Of India on 14 November, 2017
Bench: Hemant Gupta, Vijay Kumar Shukla
1
HIGH COURT OF MADHYA PRADESH AT JABALPUR
W.P. No.8863/2017 (P.I.L.)
Aabid Hussain
− V/s -
Union of India and Others
ORDER FOR CONSIDERATION
( Vijay Kumar Shukla )
Judge
/11/2017
HON'BLE THE CHIEF JUSTICE
( Hemant Gupta )
Chief Justice
ORDER POST FOR : -11-2017
( Hemant Gupta )
Chief Justice
/11/2017
2
HIGH COURT OF MADHYA PRADESH AT JABALPUR
W.P. No.8863/2017 (P.I.L.)
Aabid Hussain
− V/s -
Union of India and Others
CORAM :
Hon'ble Shri Justice Hemant Gupta, Chief Justice.
Hon'ble Shri Justice Vijay Kumar Shukla, Judge.
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Petitioner in person.
Mrs.Indira Nair, Sr. Advocate with Ms. Sonal Pandit,
Advocate for the respondents.
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ORDER
(JABALPUR, DATED ..../11/2017) Per : VIJAY KUMAR SHUKLA, J.
By means of present petition as Public Interest Litigation, the petitioner seeks indulgence of this Court in the matter of construction of new "Chaupati" (Food Court) at Survey No.127, Cantonment Board, Jabalpur. The contention of the petitioner is that the land on which the Food Court is being constructed is reserved for garden in General Land Register (GLR). It is contended by him that the construction of commercial complex by the Cantonment Board amounts to change of the use of land and the same is being carried out by the Board without there being any approval from the competent authority i.e. Government of India, Ministry of Defense.
32. A notice was issued to the Cantonment Board. They have filed reply and submitted that the "Sadar Chaupati" is situated on the land bearing Survey No.127/1, Ashok Road, Jabalpur Cantonment which is vested land under Rule 9 (6) of the CLA Rules 1937 in favour of the Cantonment Board, Jabalpur under the head of 'Cantonment Board Shops' vide Authority Government of India, Ministry of Defense letter dated 2.9.1966. Copy of the GLR of Survey No.127/1 is already filed as Annexure P/7.
3. On perusal of Annexure P/7 in Srl. No.3 it is noted that the authority for vesting land admeasuring 7340 sqft to the Cantonment Board is mentioned. It is also mentioned in the said GLR that the Cantonment Board, Jabalpur is the lease holder of Surevey No.127/1 and solely responsible for management of the said land.
4. It is also submitted on behalf of the Board that Survey No.127/1 which is vested land in favour of the Government for the purpose of public garden, out of which an area admeasuring 7340 sqft was changed by the competent authority i.e. Government of India, Ministry of Defense for the purpose from "Public Garden" to "Cantonment Board" in Year 1966 and it was assigned a separate GLR Survey No.127/1. Likewise out of Survey No.127 an area admeasuring 6920 Sqft was also changed by the Competent authority for the purpose from "Public Garden" to " Cantonment Board Shops" in year 1966 and it was assigned a separate GLR Survey No.127/2. Copy of GLR Survey No.127/1 is part of the record as Annexure P/8.
5. Subsequently, the Cantonment Board started to use land of Survey No.127/1 by allotting this open land in terms of section 267 of the Cantonment Act 2006 in small parts to unemployed persons 4 who belongs to financially weaker part of society for their livelihood. Adjacent to the public garden the place became famous and known as "Chaupati" (Food Court). With the passage of time, the said place has become highly densed and therefore, it was considered by the Cantonment for major renovation in the Chaupati to meet out the standard of cleanliness and hygiene.
6. The Board has filed copy of the resolution of the Cantonment Board dated 10.3.2017 for installing small temporary shops (Gumti) with estimate cost. The same has been considered and approved by the Cantonment Board. They have denied that the construction of new Chaupati is on the land reserved for Tagore Garden. They submitted that Annexure P/9 and Annexure R/1 are regarding different work on different survey numbers and not connected to each other but the petitioner tried to mislead the Court by referring the same. It is further stated that the execution of renovation work of old Chaupati (Food Court) is as per Annexure R/1.
7. The respondents have also raised an objection that the present petition by way of Public Interest Litigation is abuse of the process of law. It is contended that the petitioner is in habit of filing frivilous Public Interest Litigation against the Board. They referred the order passed by this Court in Public Interest Litigation filed by the petitioner raising the same issue in W.P. No.1340/2015 whereby, he prayed a direction to stop construction of the shops on the land which is reserved for public garden.
8. The petitioner has filed copy of reply filed on behalf of the respondents in W.P. No.1340/2015 along with rejoinder. Upon perusal of the reply in the said case, it is found that the petitioner has been alleged to be one of the encroacher of the Government land 5 situated in Survey No.165-A within the Cantonment. An objection was raised that the petitioner is habitual litigant against the Cantonment Board and is in the habit of challenging each and every action of the Board by filing repeated Writ Petitions.
9. We proceed to deal with the first issue regarding the bonafides of the petitioner. From the record it is found that the earlier petition W.P. No.1340/2015 was dismissed by a Co-ordinate Bench by order dated 2.9.2015. In the said case an objection was raised that the petitioner is an encroacher and is filing frivilous Public Interest Litigation in order to create hindrances in the construction work.
10. The Apex Court in the case of State of Uttaranchal Vs. Balwant Singh Chaufal and others - (2010)3 SCC 402 has laid down the following guide lines in P.I.L. :-
"181. 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 courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations.
(2) Instead of every individual judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives.
Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the Rules prepared by the High Court is sent to the Secretary General of this court immediately thereafter.
6(3) The courts should prima facie verify the credentials of the petitioner before entertaining a P.I.L. (4) The court should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL.
(5) The court should be fully satisfied that substantial public interest is involved before entertaining the petition.
(6) The court should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions.
(7) The courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation.
(8) The court should also ensure that the petitions filed by busy bodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations. "
11. In view of the aforesaid, prima facie we are convinced that the petitioner is an encroacher of the Cantonment Board land and earlier petition filed by him was dismissed by order dated 2.9.2015 and therefore, the present Public Interest Litigation (PIL) lacks bonafide on consideration of credentials of the petitioner.
12. Even otherwise, the contention raised by the petitioner that the respondents are carrying out the construction in the land in question by change of use of land without approval of the competent authority has no merit. The respondents have taken a specific stand and in view of the GLR Annexure P/7 and P/8, the use of the land in question has already been permitted to be changed. Further the construction has already been permitted by the Competent Authority i.e. Government of India, Ministry of Defense. The construction/ 7 renovation of the temporary shops in Chaupati (Food Court) has been considered and approved by the Cantonment Board by its resolution No.38 dated 10.3.2017.
13. We do not find any illegality in the construction of the temporary shops by the Board. In view of the aforesaid, the present petition is dismissed.
(HEMANT GUPTA) (VIJAY KUMAR SHUKLA)
CHIEF JUSTICE JUDGE
mrs.mishra
Digitally signed by DEEPA
MISHRA
Date: 2017.11.14 21:47:42
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