Chattisgarh High Court
Alok Nigam vs Union Of India (Uoi) And Ors. on 2 April, 2007
Equivalent citations: [2007(4)JCR368(NULL)]
Author: L.C. Bhadoo
Bench: L.C. Bhadoo, Sunil Kumar Sinha
JUDGMENT L.C. Bhadoo, J.
1. As there was difference of opinion in the order dated 19th December, 2006 between Hon'ble the then Chief Justice and Hon'ble Shri Justice Dilip Raosaheb Deshmukh on the question of maintainability of these PIL(s), therefore, in the light of above difference of opinion, this reference has been made for consideration and decision on the following issue by the Full Bench constituted by Hon'ble the Chief Justice:
Since we differ on the question whether in view of the order of the Hon'ble Supreme Court in the case of T.N. Godavarman Thirimulpad v. Union of India and Ors. dated 10th April 2006 , the writ petitions are liable to be dismissed in limine without going into the merits of the cases.
2. Shri M.L. Verma, and Shri A.K. Sinha, learned Counsel, argued that this Full Bench is required to answer the reference to the extent of maintainability of these writ petitions as PIL in the light of the judgment of the Apex Court dated 10th April, 2006. This Full Bench cannot go beyond that i.e. this Full Bench cannot enter into the merits of the cases. We have perused the reference and we find substance in the argument advanced by learned Counsel. The scope of reference made to the Full Bench is to the extent that whether in view of the order of the Apex Court in the case of T.N. Godavarman dated 10th April, 2006 these writ petitions are liable to be dismissed in limine without going into the merits of the cases or not. When the scope of reference is particular and specific, then the Full Bench has to answer the reference only. The Full Bench cannot go beyond that. In this respect, we are fortified in our view by the judgment of the Apex Court in the case of Kerala State Science and Technology Museum v. Rambal Co. and Ors. In para 8 of this judgment, the Apex Court held that:
It is fairly well settled that when reference is made on a specific issue either by a learned single Judge or Division Bench to a Larger Bench i.e. Division Bench or Full Bench or Constitution Bench, as the case may be, the larger Bench cannot adjudicate upon an issue which is not the question referred to See Kesho Nath Khurana v. Union of India ; Samaresh Chandra Bose v. District Magistrate, Burdwan and K.C.P. Ltd. v. State Trading Corporation of India 1995 Supp (3) SCC 466.
The above legal position was made known to learned Counsel for the respective parties and everybody agreed to it, therefore, arguments were heard limited to the reference made.
3. In order to answer the reference, we consider it necessary to narrate background facts in nutshell which led to making of the reference to the Full Bench. M/s. Maruti Clean Coal and Power Ltd., made an application to the Chief Minister of the Chhattisgarh State on 1.7.2002 for allotment of about 60 acres of land in village Nawagaon Khurd for setting up of a coal washery. Ultimately, allocation of 37.91 acres land, situated in village Ratiza, District Korba, Chhattisgarh, on 99 years lease, was made by the State Government of Chhattisgarh and lease deed dated 7.12.2002 was executed between the Chhattisgarh State Industrial Development Corporation and M/s. Maruti Clean Coal and Power Ltd. Questioning the validity of above allotment/lease, one Dr. B.L. Wadehra filed writ petition bearing No. 1264/2003 on 10.4.2003 as Public Interest Litigation primarily questioning the said allotment/lease on the ground that the land in question is a forest land, therefore, without seeking prior permission of the Central Government, the State Government was not competent to give land on 99 years lease. Second ground was that the said land belongs to South Eastern Coal Fields Limited (for short 'SECL'), therefore, the State was not entitled to give the land on lease, as the said land was already allotted to the SECL.
4. Another Writ Petition No. 1382/ 2003 was filed on 22.4.2003, as Public Interest Litigation, by Sanjay Srivastava and Surendra Sahu questioning the allotment/lease of the said land in favour of M/s. Maruti Clean Coal and Power Ltd., on the ground that the said land is a forest land. Without seeking prior permission of the Central Government, the State was not entitled to allot/grant lease as also the entire process will have an adverse impact on the environment of the whole area. The residents of that area including the petitioner will be subjected to more and more pollution and suffer an action of environment imbalance. Another ground was raised that the entire process of allotment of land to respondent No. 13 i.e. M/s. Maruti Clean Coal and Power Ltd. is in utter disregard to the rules and procedure.
5. Third Writ Petition No. 4147/2003 was filed on 9.12.2003 by five organizations viz. Rastriya Koyala Khadan Mazdoor Sangh, Central Industrial Trade Union etc. in public interest questioning the said allotment/lease on the ground that the land in question is a forest land and the State Government has no jurisdiction to allot the said land without prior permission of the Central Government, and also that the land belongs to the SECL. They have also challenged the lease on the ground of procedural impropriety adopted in grant of lease of said land in favour of M/s. Maruti Clean Coal and Power Ltd.
6. In the meantime, one Deepak Agarwal filed I.A. before the Supreme Court in Writ Petition (C) No. 202 of 1995 , T.N. Godavarman Thirumulpad v. Union of India and Ors. , (known as forest matter). The said I.A. was disposed of by the Hon'ble Apex Court vide order dated 10th April, 2006 holding in para 40 of the judgment that "even on facts we find no substance in the plea that the land allotted to Maruti is forest land." In para 31 of the judgment, the Apex Court held that (Para 30 of AIR):
On perusal of the record, we have no doubt that the application filed by Deepak Agarwal is far from being bona fide. He has been set up by others. We strongly deprecate the filing of an entirely misconceived and mala fide application in the garb of public interest litigation by Deepak Agarwal. He is nothing but a name-lender." The Apex Court in para-40 of the said judgment also said that the dispute in respect of the title is not a matter in issue before us.
7. Arguments for final disposal of these writ petitions were heard by a Division Bench consisting of Hon'ble the then Chief Justice and Hon'ble Shri Justice Dilip Raosaheb Deshmukh. On 19th December, 2006, they passed separate orders. Hon'ble Justice D.R. Deshmukh held that "to conclude, in the light of Hon'ble Apex Court's judgment in Godavarman's case AIR 1997 SC 1228 and the bonafides of the petitioners in Writ Petitions No. 1264/2003, 1382/2003 and 4147/2003 being in doubt. I decline to examine the question of procedural irregularity in the allotment of land in area 37.91 acres by the State Government of Chhattisgarh to M/s. Maruti Clean Coal and Power Limited at the behest of the petitioners, who are not public interest litigants and whose bonafides and credentials are in doubt." whereas, Hon'ble the then Chief Justice held that I do not find any finding recorded by the Hon'ble Apex Court in its order to hold that all the petitioners herein are not pro bona publico or that the bonafides and credentials of all the petitioners are in doubt. Hon'ble the then Chief Justice also held that "I am of the considered opinion that the contention of the petitioners that the lease of subject land in favour of M/s. Maruti Clean Coal and Power Limited is vitiated on account of infraction of mandatory provisions of the Code and that it suffers from serious procedural impropriety, is wholly justified and consequently, the impugned grant cannot be sustained." Ultimately, Hon'ble the then Chief Justice allowed the writ petitions and quashed the orders of the State of Chhattisgarh dated 5.12.2002 as well as agreement dated 7.12.2002 allotting the subject land in favour of M/s. Maruti Clean Coal and Power Limited with costs quantified at Rs. 10,000/-.
8. Shri Tankha, learned senior Counsel submitted that it is an admitted position that regarding title of the land, a suit is already pending in the civil Court at Kat-ghora between SECL and M/s. Maruti Clean Coal and Power Limited and it is in this background, on 19th December, 2006, a dissenting order in respect of the maintainability of the above three writ petitions was passed by the Division Bench considering of Hon'ble the then Chief Justice and Hon'ble Shri Justice D.R. Deshmukh. He submitted that at page 9, in para 6, Hon'ble Justice Deshmukh mentioned that "in that petition (petition before the Supreme Court). Bhartiya Koyala Khadan Mazdoor Sangh, petitioner herein W.P. No. 4147 of 2003, late Dr. B.L. Wadehra, the petitioner herein in W.P. No. 1264 of 2003 and Sanjay Srivastava, the petitioner herein in W.P. No. 1382 of 2003 sought intervention. The Apex Court vide its judgment dated 10th April, 2006 rejected the prayer for impleadment by the aforesaid petitioners". Shri Tankha contended that late Dr. B.L. Wadehra, Sanjay Srivastava and Surendra Sahu never filed any application for intervention. Shri M.L. Verma, learned senior Counsel submitted that in Writ Petition No. 4147 of 2003 there are five petitioners, out of the five petitioners, only Bhartiya Koyala Khadan Mazdoor Sangh filed an intervention application whose name is mentioned at Item No. 12 in the libi which was prepared by the Central Empowered Com-mitte (CEC) regarding matters pending in connection with land before the High Courts and the Supreme Court. Therefore, first four petitioners never filed any intervention application. This factual position was not disputed by learned Counsel for the opposite side.
9. They submitted that the above factual inaccuracy has been crept-in in the order of Hon'ble Judge dated 19.12.2006. Of course, Dr. B.L. Wadehra filed an SLP against the order dated 9.5.2003 and the said SLP was dismissed on 10th April, 2006. They further submitted that in para 11, it has again been mentioned that petitioner Sanjay Srivastava in W.P. No. 138/2003 was one of the interveners in Godavarman's case. But, he never filed any intervention application. It has again been mentioned that the Apex Court refused the impleadment of Sanjay Srivastava in Godavarman's case AIR 1997 SC 1228, which is factually incorrect. Again in para 12 factual inaccuracy has been crept in that B.L. Wadehra moved an application for impleadment and same was refused in Godavarman's case. In the said para, it has further been mentioned that W.P. No. 4147/2003 also substantially raises the main issue that the allotted lands are forest lands while also raising the question of procedural irregularity as by way of additional submission and the observations made in Godavarman's case by the Hon'ble Apex Court leave no room for any doubt that the bonajides and credentials of the petitioners in all these writ petitions are in doubt, and therefore, as the Hon'ble Apex Court had refused intervention by these writ petitioners, these petitions deserve to be dismissed in limine being clearly and demonstratively camouflaged since the real persons behind these petitioners is a competitor of M/s. Maruti Clean Coal and Power Limited who was operating in the area and having monopoly.
10. They also drew the attention of the Court towards para 17 in which it has been mentioned that "to conclude, in the light of Hon'ble Apex Court's Judgment in Godavarman's case AIR 1997 SC 1228 and the bona fides of the petitioners in Writ Petitions No. 1264/23, 1382/2003 and 4147/2003 being in doubt, I decline to examine the question of procedural irregularity in the allotment of land in area 37.91 acres by the State Government of Chhattisgarh to M/s. Maruti Clean Coal and Power Limited at the behest of the petitioners, who are not public interest litigants and whose bona fides and credentials are in doubt."
11. Showing above backgrounds of factual inaccuracy. Shri Vivek Tankha, learned senior Counsel, Shri M.L. Verma, learned senior Counsel as also Shri A.K. Sinha, learned Counsel argued that in the above judgment of the Apex Court dated 10th April, 2006, the Apex Court has nowhere expressed or given finding in respect of the petitioners in these writ petitions that they are not bona fide litigants. They further argued that it is evident from the bare perusal of the Supreme Court judgment that the only question before the Supreme Court was whether land in question is a forest land or not. The Supreme Court has decided that question only, nothing beyond that and for remaining issue regarding propriety of the allotment made in favour of M/s. Maruti Clean Coal and Power Limited, the Supreme Court has not said anything. They vehemently argued that reading of the whole judgment makes it clear that the Supreme Court has commented upon conduct of Deepak Agarwal who filed I.A. in the forest matter before the Supreme Court. The Hon'ble Supreme Court held that the application filed by the Deepak Agarwal was far from being bona fide and strongly deprecated the filing of an entirely misconceived and mala fide application in the garb of a public interest litigation by Deepak Agarwal saying that he is nothing but a name-lender.
12. On the other hand, Shri Kailash Vasudev, learned senior Counsel argued that in view of the Apex Court judgment dated 10th April, 2006 these petitions are not maintainable. He argued that primarily in these writ petitions the only question raised by the petitioners is that the land is a forest land which has already been decided by the Apex Court and for the claim that the land belongs to the SECL, a suit is already pending before the civil Court at Katghora. Now, this Court has no jurisdiction to go beyond decision of the Apex Court, as the main issue raised in these writ petitions has already been decided by the Hon'ble Apex Court. Moreover, these three petitions have been filed at the instance of business rival group that is why the Apex Court rejected the interventions made by Labour Union and others. He placed reliance on the judgment of the Apex Court in the matter of Indian Oil Corporation Ltd. v. Municipal Corporation and Anr. . Shri Thakur Vijay Singh adopted the arguments of Advocate Shri A.K. Sinha for SECL whereas. Senior Advocate and Additional Advocate General Shri Prashant Mishra adopted the arguments advanced by Senior Advocate Shri Kailah Vasudev.
13. In order to appreciate arguments advanced by learned Counsel for the parties, we have carefully read the whole judgment of the Apex Court dated 10th April, 2006. Reading of the whole judgment, no doubt, makes it clear that the Apex Court has only commented upon conduct and bonafide of Deepak Agarwal. The Apex Court held that the application filed by Deepak Agarwal is far from being bona fide, same is entirely misconceived and mala fide in the garb of PIL. It is clear from reading of paras 1,21 and 40 of the judgment in which it has been mentioned that the Court is required to decide whether the land in question is a part of forest land or not. The Apex Court has only decided the question that the land in question is not forest land, nothing beyond that. As far as these writ petitioners are concerned, in para 23 the Apex Court held that "Some unions have also tried to jump into the fray by filing applications seeking impleadment in these proceedings so as to contend that the allotment is of a forest land. We see no reason to allow the impleadment of parties in these proceedings." Except that nothing has been mentioned about credentials and bona fides of the petitioners herein in these three petitions. Of course, it has been mentioned in the said judgment that one K.K. Srivastava is the representative of Aryan and many times he appeared on behalf of Deepak Agarwal to assist the advocate as also before CEC. In the third report of the CEC, CEC noted numbers of cases that were filed in respect of giving the land on lease to M/s. Maruti Clean Coal and Power Limited and those matters have been referred in para 18 in the said order. In that, item No. 2 mentions about filing of matter by Sanjay Srivastava (relation of K.K. Srivastava) in the High Court. Except that the Supreme Court has not said anything about Sanjay Srivastava's conduct or anything else. Therefore, in the first instance, as has been mentioned earlier, Dr. Wadehra, Sanjay Srivastava, Surendra Sahu and first four petitioners in Writ Petition No. 4147/2003 have never moved any application for impleadment. Of course, the petitioner No. 5 in W.P. No. 4147/2003 had moved an application for intervention before the Supreme Court, same has been rejected. In the second place, the Supreme Court held that we see no reason to allow the impleadment of parties in these proceedings. The Supreme Court has not commented upon conduct and bona fide of petitioner No. 5 in Writ Petition No. 4147/ 2003 about filing of this writ petition. If above portion commenting upon the credentials of Deepak Agarwal is read against the petitioner No. 5 in W.P. No. 4147/2003, it will amount to stretching the issue beyond the decision and observations of the Hon'ble Apex Court dated 10.4.2006. Therefore, observation made in para 12 of the order that the observations Apex Court has not said anything about bona fides and credentials of the petitioners of these writ petitions.
14. Had it been so, the Hon'ble Apex Court have transferred all the three writ petitions to the Supreme Court under Article 139A of the Constitution of India and have dismissed them along with LA. filed by Deepak Agarwal.
15. Moreover, in para 18 the Apex Court has simply mentioned that in the third report of the CEC, CEC further noted number of cases that were filed in respect of allotment of land to M/s. Maruti Clean Coal and Power Limited. The Apex Court simply mentioned about the notes made in the third report about filing of various petitions regarding land, beyond that the Apex Court has not observed or said anything about maintainability of those writ petitions as also bona fides and credentials of the petitioners herein.
16. As far as judgment cited by Shri Kailash Vasudev, Senior Advocate, is concerned, the said judgment of the Apex Court is distinguishable on facts and has no bearing on the merits of the present writ petitions. The question before the Apex Court in that matter was that Division Bench of the Madhya Pradesh High Court did not follow judgment of the Apex Court in the matter of Municipal Corporation v. Ratnaprabha . The Full Bench of the Madhya Pradesh High Court overruled the decision of the Division Bench. Then the matter went before the Supreme Court. The Supreme Court held that:
In the High Court the matter was not res Integra being concluded by the authority of the direct decision by a three Judge Bench of this Court in Municipal Corporation v. Ratnaprabha on the correct construction of Section 138(b) of the M.P. Act. No other direct decision of this Court is to the contrary. However, the Division Bench of the High Court in a later case between the very same parties took a different view on the construction of the same provision placing reliance on some other decisions of this Court wherein the question arose for decision in the context of a similar provision in some other statutes applicable in the other States wherein there was no non-obstante clause as in the M.P. Act.
Therefore, judgment relied upon by the Shri Kailash Vasudev was in a different context and has no application on facts in the present cases.
17. Shri M.L. Verma, learned senior Counsel placing reliance on the judgment of the Apex Court in the matter of Mehsana District Central Co-operative Bank Ltd. and Ors. v. State of Gujarat and Ors. , (Para 16), argued that public interest petition can be filed even by a business rival where violation of the Act or rule has been raised. He argued that in the above matter, the Apex Court held that PIL preferred by a person no other than business rival of the appellants due to clash of interest was rightly entertained. The Court further held that-
The High Court by the impugned order issued a writ of mandamus, directing respondents 4 and 5 to take appropriate action against the appellants in accordance with the provisions contained in the Gujarat Co-operative Societies Act and the rules framed thereunder. We do not see any infirmity in the impugned order. The Acts and rules are made to be followed and not to be violated. When the statute prescribes the norms to be followed, it has to be in that fashion. Converse would be contrary to law. If there is any allegation of violation of statutory rule which have been brought to the notice of the authorities and if the authorities concerned do not perform their statutory obligation, as in the present case, any aggrieved citizen can always bring to the notice of the High Court the inaction of the statutory authorities and in such event it would always be open to the High Court to pass in appropriate order as deemed fit and proper in the facts and circumstances of the case.
We are of the considered opinion that at this stage above judgment cannot be considered because we have to answer reference made to us and we cannot discuss about the maintainability of the writ petitions on their merits.
18. We have to simply answer the reference, therefore, we are not required to decide applications I.A. Nos. 1712/2007 and 1713/2007 filed by Shri Amrito Das, Advocate, on behalf of M/s. Aryan Coal Benefication Private Limited, application I.A. No. 1747/2007 for proper orders filed by Shri Abhishek Sinha, Advocate, on behalf of Arun Singh and the application I.A. No. 1746/2007 filed by Shri B.P. Sharma, Advocate to ask Mr. Alok Nigam to file income tax return.
19. For the foregoing reasons, we are of the considered opinion that the Apex Court in its order dated 10th April, 2006 passed on LA. moved by Deepak Agarwal has not adjudicated or expressed any opinion on any other aspects of these three writ petitions except that the land in question is not a forest land nor the Apex Court has observed anything about the bonafvdes and credentials of the petitioners herein, therefore, in view of the order of the Supreme Court dated 10th April, 2006 passed in Godavarman's case AIR SC 1774, these writ petitions are not liable to be dismissed in limine without going into the merits of the cases.
20. In the result, reference is reference is answered in negative. Registry is directed to place the matters before Hon'ble the Chif Justice in view of the Apex Court's order dated 2.2.2007 passed in Transfer Petition (Civil) No(s). 54/2007 in which it has been directed that the interest of justice would be served if the High Court disposes of the matter within six weeks from today and the period of six weeks already expired on the period of six weeks already expired on 16.3.2007.