Uttarakhand High Court
Sunita Pandey & Another ... vs State Of Uttarakhand & Others on 26 October, 2018
Bench: V.K. Bist, Lok Pal Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (PIL) No.132 of 2014
Sunita Pandey & another .....Petitioners
Versus
State of Uttarakhand & others
.......Respondents
Mr. Shashank Pandey, Advocate present for the petitioners.
Mr. V.K. Kohli, Senior Advocate assisted by Mr. D.S. Patni, Advocate
for the respondent nos. 1 & 2.
Mrs. Anjali Bhargava, Brief Holder for the State of Uttarakhand/
respondent nos. 3 & 4.
Dated: 26th October, 2018
Coram: Hon'ble V.K. Bist, J.
Hon'ble Lok Pal Singh, J.
Per: Lok Pal Singh, J.
Petitioners claim themselves to be the public spirited persons. They have filed this Writ Petition (PIL) seeking the following reliefs:-
a. To issue Writ, order or Direction in the nature of Mandamus commanding the respondents to prepare a rehabilitation & resettlement policy for the residents of Village Dhari and other affected villages as per the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. b. To issue Writ, Order or Direction in the nature of Mandamus commanding the respondents to construct the temple of the deity Dhar Ma as per the plan proposed by the company and agreed upon by the residents.
c. To issue Writ, Order or Direction in the nature of Mandamus directing the respondent no. 1 to get an enquiry conducted into all the components of the dam with regard to its safety and stability.2
2. Learned counsel for the petitioners has contended that this Public Interest Litigation has been filed against the misdemeanor, breach of promise and illegality being committed by the Alaknanda Hydro Power Corporation towards the residents of various villages especially, Village-Dhari located in the vicinity of the said Hydro Power Project. The company, which was entrusted to make the power project, has breached the promise made in writing with the Government of Uttarakhand and also with the residents of the villages. It is further submitted that the petitioners are residents of Village Dhari Patti Chauras District, Tehri Garhwal and are facing day-to-day difficulties in reaching their home or market and are living in constant fear of a major catastrophe since the construction of the dam.
3. It is further submitted that the subject matter of present Writ Petition (PIL) is violation of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement, Act 2013. Moreover, the Hydro Power Company is operating in breach of trust and breach of the agreement dated 10.02.2006. It is further contended that respondent no. 2-Alaknanda Hydro Power Company has entered into an agreement with the Government of Uttarakhand, Government of Uttar Pradesh and Uttar Pradesh Power Corporation Ltd. for the implementation of the Srinagar Hydro Electric Project in District Pauri Garhwal of the State of Uttarakhand. It is further contended that earlier the project was awarded in the year 1994 to a company known as Duncans North Hydro Power 3 Company Ltd (DIL) and the same was later re-named as Alaknanda Hyrdo Power Ltd.
4. The company submitted a detailed project report for necessary evaluation and Environmental Impact Assessment for 200 MW project and, thereafter, the project was cleared for construction of a 200 MW dam. It is further stated that the company had also proposed to relocate at the left side of the river bank of Alaknanda. It is further contended that a study was conducted by one Mr. J.S. Rawat of the Geological Survey of India and in this regard a report was submitted by him on 07.09.2009, wherein, it is clearly mentioned that the villagers of village Dhari should be displaced from the site and rehabilitated somewhere else, as the area is under a doubtful stability because of the reservoir fluctuations. It is further contended that the report was never communicated to the residents of village Dhari. It is alleged that the report was only a cursory and survey was not carried out. A perusal of order sheet would reveal that the learned counsel for the petitioners on several occasions did not appear to press the Writ Petition (PIL). The Division Bench of this Court sought instructions from the State on or before 11.09.2014, vide order dated 28.08.2014 but when the learned counsel for the petitioners appeared in the writ petition, P.I.L was adjourned on that day.
5. Vide order dated 18.09.2014, notice was issued to respondent no. 2 by Registered Post and counter affidavit of the official respondents was called. On 4 28.10.2014, none appeared for the petitioners, though time was granted to the respondents to file counter affidavit. Respondent no. 2 filed counter affidavit on 17.08.2015. Respondent no. 2 has stated in its counter affidavit that the petition has been filed with the malafide intention. It is further contended that earlier also a Writ Petition (P.I.L) was filed with regard to the same subject matter and the matter reached to the Hon'ble Apex Court and the same was dismissed by the Hon'ble Apex Court vide judgment and order dated 13.08.2013. It is further contended that the petitioners are though claiming that they have no personal interest; but, a bare perusal of contents of Writ Petition, their interest is apparent. It is further contended that the height of the dam has been approved and, after clearance from all the concerned departments, the dam was completed. It is further contended that, as per the agreement, the temple of deity "Maa Dhari Devi" was to be completed; but, due to unnecessary hindrance of the villagers it was delayed. It is further contended that compensation has already been paid to the aggrieved persons. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 has no implication, as the land was acquired long-back and the compensation has been paid to the affected persons before the enactment of the Land Acquisition, Rehabilitation and Resettlement Act, 2013. However, on the subsequent stage, an agreement was executed amongst respondent no. 2, State Government and residents of village Dhari. The same benefits were also accorded and the same were even paid to the affected 5 persons. It is further contended that respondent no. 2 has provided all possible help in addition to the compensation purely on humanitarian ground. The respondent no. 3 filed its affidavit stating therein that the interest of petitioners is involved as their lands have been affected by the project known as Hydro Project. It is further contended that the petitioners are raising their personal dispute. The compensation has already been paid to the affected persons and the aggrieved persons have been rehabilitated by respondent no. 2. It is further contended that respondent no. 2 has also constructed the bridge.
6. It is trite law that the averments made on pleadings by any of the parties, if not rebutted, are presumed to be correct. In the present case, the averments made in the counter affidavit have not been rebutted by the petitioners despite time granted to them. Therefore, we have no hesitation in holding that the fact stated are correct facts of the case as the averments made in the counter affidavit have not been rebutted. Contrary to it, the averments made in the writ petition have no substance, as the averments made in the Writ Petition are contrary to each other. In Para No. 2, it has been stated that the petitioners could not reach to their house and shops as no bridge has been constructed. Contrary to it, in Para no. 3 of writ petition, it has been stated that petitioners have no personal interest in this matter.
7. On a perusal of the counter affidavit, it would reveal that earlier a Writ Petition had been filed before 6 this Court and interim directions were issued. The order passed by this Court, dated 03.11.2011 in Writ Petition (PIL) No. 68 of 2011, was challenged before the Hon'ble Apex Court. The leave was granted and the Appeal filed by respondent no. 2 against order dated 13.11.2011 was allowed by the Hon'ble Apex Court vide order dated 13.08.2013. The aforesaid judgment of the Supreme Court is reported in Alaknanda Hydropower Company Limited vs. Anuj Joshi and others reported in 2014 (1) SCC 769 the Hon'ble Apex Court has held as follows:
"13. The learned counsel also pointed out that the environmental clearance even otherwise was issued in the light of the specific decision of MoEF dated 03.08.2011 clarifying that the Transfer Letter of 27.03.2006 in favour of AHPCL was for 330 MW. The learned counsel in support of his contention made reference to the judgment of this Court in Lafarge Umian Mining (P) Ltd. v. Union of India. The learned counsel also pointed out that the Project in question was conceptualized more than three decades back. As on date the Project stands almost completed and more than Rs. 4000 crores had been invested and therefore, there is no question of holding a public representatives, Gram Panchayat, Shopkeepers, temple pujaris, Trust, devotees, etc. and it was considering their views, MoEF granted environmental clearance and also forest clearance for the Project.
15. Shri Lahoty also pointed out that so far as the issue of Dhari Devi Temple is concerned, the Joint Committee had endorsed and recommended that upliftment of the temple adhering to the INTACH Plan is the best option and has found wide acceptability amongst Temple Samiti, pujari, local inhabitants as well as local statutory authorities. Elaborate arguments were also addressed by the learned counsel on muck management and submitted that they had 7 substantially complied with the proposed directions under Section 5 of the Environment (Protection) Act. Arguments were also addressed on the Catchment Area Treatment Plan and submitted that an amount of Rs. 22.30 crores was deposited with the Forest Department way back in 2007- 2009. Further, it was also pointed out that AHPCL had spent the catchment area. For green belt development, it was pointed out that an amount of Rs. 2.30 crores was made available to the State of Uttarakhand by AHPCL. The learned counsel, therefore, submitted that the respondents are unnecessarily creating hurdle in the completion of the Project and litigants is not in public interest but for advancing the private interest of the respondents.
19.The Tribunal (NGT) disposed of the application on 07.08.2012 expressing its anguish for not disposing of the matter within the time granted by it. AHPCL submitted that in spite of the fact tat it had complied with all the requirements stipulated in the notice dated 30.06.2011, unnecessarily the Project was held up causing huge financial lost to it. AHPCL also sought a direction to transfer all the cases from NGT to this Court to be heard along with the appeal. Consequently, all those related matters were transferred to this Court and were heard along with these appeals.
26. We have gone through the affidavits filed by the State of Uttarakhand and we find they have wholeheartedly accepted the B.P. Das Committee Report and the report dated 03.05.2013 submitted by the joint team and also the B.K. Chaturvedi interim report dated September 2012. When this Court constituted the Committee on 25.04.2013, this Court directed the inclusion of the State Government representative as well, so that the State Government can express its views on various issues including the issue relating to Dhari Devi Temple. The State Government in their affidavit, it may be noted, have not questioned the suggestions made by the Committee in its report dated 03.05.2013. Consequently, we have to take it that the State Government has no objection whatsoever with regard to 8 take it that the State Government in its report dated 03.05.2013 i.e., raising the temple above the highest flood level at its current location and to install the idol at higher elevation at the same spot with access to the Temple through a pedestrian bridge from the left bank. The Committee specifically stated in the report that they had visited Dhari Devi Temple site and met the trustees, priests of the Temple and a few residents of Village Dhari and no objection was raised either by the trustees or priests of the Temple on the suggestion made by the joint team in the report date 03.05.2013.
27.We also find that the Architectural Heritage Division of the Indian National Trust for Art and Cultural Heritage (INTACH) has prepared a plan in consultation with Dhari Devi Temple Trust, Geological Survey of India and AHPCL and which was submitted to MoEF on 12.09.2011, which has been accepted by all the subsequent committees appointed.
28.MoEF in compliance with the order passed by this Court in Alaknanda Hydropower Co. Ltd. Vs. Anuj Joshi dated 17.08.2012 to verify whether AHPCL has complied with the conditions of the environmental clearance granted in May 1985 and directions of the order issued under Section 5 of Environment (Protection) Act, 1986 dated 30.06.2011 and to examine the feasibility of well option of Dhari Devi Temple.
29.We have already referred to in detail the steps taken by AHPCL to comply with the environmental clearance granted in 1985 and the conditions stipulated in MoEF Order dated 30.06.2011, which has also been noted by the joint team constituted on the basis of the directions of this Court. B.P. Das Committee has elaborately examined the issue regarding restoration of Dhari Devi Temple in Paras 4.0, 4.1, 4.2, 5.2.1, 6.0 of its report of August 2012 and ultimately came to the conclusion that the proposal made by INTACH be accepted. The paragraphs mentioned above are extracted hereunder for easy reference:9
"4.0 Restoration of Dhari Devi Temple The team visited the temple premises and surroundings on 29.08.2012. Discussions were held with the officials of AHPCL, office-bearer of Aadhyashakti Maa Dhari Pujari Nyas, Shri V.P. Pandey, President along with Shri. Vivek Pandey, Secretary and a pujari, namely, Shri Manish Pandey. A number of local people and people representing different organizations/groups were present during the discussions. The following emerged as a result of discussions and interactions.
4.1 Upliftment scheme for Dhari Devi Temple prepared in collaboration with INTACH.
(i)In accordance with the directions issued by MoEF vide dated 30.06.2011; the project proponent had got a restoration plan for Dhari Devi."
8. This Writ Petition was listed several times; but, none appeared for the petitioners. On several occasions, this case was adjourned, as the matter could not be taken up. On 15.06.2018 two weeks' time was granted to the petitioners to file rejoinder affidavit. Thereafter, the matter was listed before the Court but neither the counsel for the petitioners appeared on 04.09.2018 nor rejoinder affidavit has been filed to rebutted the averments made in the counter affidavit. Thereafter, this Writ Petition was listed on 11.09.2018 and, after arguments were advanced by the parties, again the petition was adjourned at the request of learned counsel for the petitioners and was directed to be listed on 18.09.2018.
9. We have heard learned counsel for the parties and perused the material available on record.
1010. Learned counsel for the petitioners would submit that the petitioners have filed the present Writ Petition (P.I.L) in public interest and petitioners have no personal interest. On a query made by this Court to the counsel for the petitioners, Mr. Shashank Pandey submitted that he is not aware of filing of earlier P.I.L with regard to the same subject matter. He would contend that it can be assumed that earlier also petitions were filed, but the present Writ Petition(PIL) has been filed for proper payment of compensation under the Right to Fair Compensation Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the "Resettlement Act, 2013") to the persons whose lands were acquired. He would further submit that the provisions of the Resettlement Act, 2013 are applicable, as the compensation has not been paid yet.
11. We find no force in the submissions of learned counsel appearing on behalf of petitioners.
12. From a perusal of provisions of the Resettlement Act, 2013, with regard to the acquired land, it is apparent that it is a personal right of aggrieved person or persons and it cannot be said to be a public interest. This Court has even advised the learned counsel for the petitioners that it would not be proper for him to argue the present Writ Petition on merits, as the same matter has already been decided by this Court.
13. Mr. V.K. Kohli, learned Senior Advocate has shown the photographs of deity "Maa Dhari Devi"
11temple to us and submitted that the construction of "Maa Dhari Devi" temple had already been completed long back. Mr. V.K. Kohli, learned Senior Advocate further contended that respondent no. 2 has constructed a beautiful temple of "Maa Dhari Devi." He would submit that beautification work of carving on the pillars is still going on. He would submit that though, it was not the part of agreement between the parties, but still respondent no. 2, in its own wisdom, is making all efforts to beautify the temple of "Maa Dhari Devi."
14. A lawyer of this Court, Mr. Pankaj Purohit, who belongs to the same area, would submit that a beautiful temple of "Maa Dhari Devi" has already been constructed by respondent no. 2 and he is not appearing for any of the parties; rather, he is Deputy Advocate General for the State of Uttarakhand. We appreciate the information supplied by him to this Court. On 11.09.2018 this Court orally directed the learned counsel for the petitioners to seek instructions as to whether the petitioners are willing to withdraw this Writ Petition, as they seems to be the residents of the same village; but, Mr. Shashank Pandey, learned counsel would submit that he has been engaged to argue the Writ Petition (PIL) on its merit.
15. We have heard the learned counsel for the parties at some length, though, it was not necessary to hear them at length as the issue raised in the present P.I.L has already been decided by the Hon'ble Apex Court.
1216. This Court, during the course of arguments on 11.09.2018, requested the learned counsel for the petitioners to seek instructions from the petitioners as to whether they wish to withdraw the present writ petition, as the matter has already been decided by the Hon'ble Apex Court in the same subject matter. It is submitted by the learned counsel for the petitioners that the petitioners are still willing to press this Writ Petition (PIL).
17. A person or group of persons should not be permitted to file repeated PIL with regard to the same subject matter.
18. Learned counsel for the petitioners has submitted that he is not aware about the previous litigation and is also not aware about the judgment of the Hon'ble Apex Court. The copy of the judgment has been provided to the counsel for the petitioners by the learned counsel appearing for the respondent nos. 2 & 3. After reading the judgment of Hon'ble Apex Court (supra), the counsel for the petitioners would submit that the subject matter before Hon'ble Apex Court was entirely different and that the present Writ Petition (PIL) has been filed for separate reliefs. He has made every effort to convince this Court to distinguish the judgment of Hon'ble Apex Court.
19. A lawyer is supposed to have the knowledge of a judgment delivered by the Hon'ble Apex Court, which is the law of land, but the reply of counsel appearing for the petitioners Mr. Shashank Pandey is not acceptable 13 that he is not aware of the judgment of the Hon'ble Apex Court. A lawyer cannot make excuse for unawareness of a particular judgment of the Hon'ble Apex Court and also cannot be permitted to cite a judgment, which has already been overruled. A lawyer is known for its legal acumen. He should not have argued the Writ Petition (PIL) and should have suggested his clients to withdraw the Writ Petition (PIL) but the attitude of the learned counsel for the petitioners that he has been engaged to argue the matter appears to be against the ethics of a lawyer and further it appears to the Court that he has not given proper advice to his clients. The counsel could have adviced properly to his clients and could have also considered it appropriate to withdraw the Writ Petition (PIL), but the counsel and petitioners are not ready to accept the request of this Court to withdraw the petition and the learned counsel for the petitioners has again wasted valuable time of this Court for his own satisfaction. Numbers of litigants are waiting for their turn. We were expecting from the learned counsel for the petitioners that he should make a statement on behalf of the petitioners that the petitioners were not aware of filing the Writ Petition (PIL) on the judgment passed by the Hon'ble Apex Court and, therefore, they have filed the aforesaid Writ Petition (PIL) on an advice or on bonafide mistake of fact, but, the petitioners and their counsel are not ready to make such submissions before this Court. Thus, this Court has no option but to decide the Writ Petition (PIL) on merits, as the counsel has insisted this Court to decide the matter on merits after giving him full opportunity.
1420. This Court has already granted full opportunity of hearing to the learned counsel for the petitioners and he has argued every paragraph of the present Writ Petition (PIL) and has wasted the court's valuable time for more than two hours. We find that the present petition is a gross abuse of process of law and time was granted to the petitioners to refute the contents of the counter affidavit, but despite time being granted to the petitioners, rejoinder affidavit has not been filed to refute the contents of the averments made in the counter affidavit.
21. A careful perusal of the contents of the Writ Petition would reveal that petitioners have filed the P.I.L for their personal benefit and for redressal of their own grievances. In our considered opinion, the filing of the present Writ Petition (PIL) in disguise of public spirited litigants is a sheer abuse of process of law. The petitioners are trying to raise their personal grievances, which is not permissible by way of present Writ Petition (PIL). The petitioners seem to be aggrieved with the amount of compensation paid to them and they think that the compensation has not been paid according to the Resettlement Act, 2013.
22. After perusal of the pleadings of the respondents, which have not been rebutted, we are of the considered opinion that it is an old acquisition of the land and compensation has already been paid. We have no option but to accept the averments made in the counter affidavit, as the averments of the counter affidavit have 15 not been rebutted. We are also of the considered opinion that such kind of filing of Writ Petition (PIL) should be tackled with iron-hands.
23. The Hon'ble Apex Court in the case of Suraz India Trust Vs. Union of India reported in (2017) 14 SCC 416 has held that a frivolous litigation should be declined and be tackled with iron hands. In the said case, the Hon'ble Apex Court has imposed a cost of ` 25 lakhs on the petitioner and issued direction to the Registry of the High Court and other High Courts that no P.I.L should be entertained in the name of Suraz India Trust.
24. In our view, though this is a case, which is liable to be dismissed with exemplary cost in view of the dictum of Hon'ble Apex Court in the case of Suraz India Trust Vs. Union of India (supra), but considering the fact that the petitioners are the residents of hilly State of Uttarakhand, they might not be in a position to pay such huge exemplary cost of ` 25 lacs, thus, we are of the considered view that nominal cost of ` 50,000/- be imposed upon the petitioners for raising their private interest in this Public Interest Litigation to suffice the purpose.
25. Accordingly, an exemplary cost of ` 50,000/- is imposed upon the petitioners; the cost shall be deposited by the petitioners within a period of two months in the Registry of this Court. The Chief Secretary, Government of Uttarakhand is requested to prepare a mechanism for the welfare of mentally 16 retarded persons and create a corpus fund for the welfare of mentally retarded persons in State of Uttarakhand and shall open a bank account in a nationalized bank so the cost imposed in appropriate cases by this Court be remitted to the corpus fund. The bank account number and copy of scheme shall be furnished to the Registrar General of this Court within a period of two months on deposit of the cost by the petitioners. In this case, the same shall be remitted to the aforesaid corpus fund. It is hoped and expected that the directions issued by this Court be complied with in true letter and spirit.
26. With the direction as above, the writ petition (PIL) is closed.
(Lok Pal Singh, J.) (V.K. Bist, J.)
26.10.2018
Shiksha/Shubham