Himachal Pradesh High Court
Residents Of Village Jatain vs State Of H.P. & Others on 2 June, 2016
Author: Sandeep Sharma
Bench: Mansoor Ahmad Mir, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
CWP No.4890 of 2015
.
Judgment Reserved on: 19.05.2016
Date of decision: 02.06.2016
Residents of village Jatain, Dochi and Reha ....Petitioner
Versus
State of H.P. & Others. ..Respondents
of
Coram
The Hon'ble Mr.Justice Mansoor Ahmad Mir, Chief Justice.
rt
The Hon'ble Mr.Justice Sandeep Sharma, Judge.
Whether approved for reporting ?1 Yes.
For the Petitioners: Mr.Sanjeev Bhushan, Senior Advocate
with Mr.Rakesh Chauhan, Advocate.
For the Respondents: Mr.Shrawan Dogra, Advocate General
with Mr.Anup Rattan & Mr.Romesh
Verma, Additional Advocate Generals
and Mr.J.K. Verma & Mr.Kush
Sharma, Deputy Advocate Generals.
Sandeep Sharma,J.
By way of present petition the petitioner has prayed for following reliefs:-
"(i) That respondents No.1 to 3 may very kindly be directed not to construct the sewerage treatment plant in land denoted by Khasra No.963/1, situate in Mauza Rai Ghat, Tehsil Theog, District Shimla, Himachal Pradesh measuring 3377.50 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes.::: Downloaded on - 15/04/2017 20:32:32 :::HCHP 2
square meters since same is against instructions on the subject and is being construction on a forest land apart from the same is constructed virtually in a residential area.
.
(ii) That the order annexure P-5 passed by Divisional Commissioner may very kindly be quashed and set aside since same is completely and factually incorrect, in the interests of justice and fair play.
(iii) That records of the case may be of summoned for the kind perusal of this Hon'ble Court."
2. Present rt petition has been filed in the representative capacity by Shri Jai Prakash on behalf of villagers of villages Jatain, Dochi and Reha, who has been duly authorized by way of Resolution (Annexure P-1).
3. By way of present petition, petitioner, being aggrieved with the construction of a Sewerage Treatment Plant (in short `STP') in village Jatain, approached this Court invoking extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. Petitioner averred that respondents No.1 to 3 are in the process of constructing a STP in village Jatain, which action of them is being opposed by the villagers of villages Jatain and Dochi. These villages fall in the Gram Panchayat, Diyarighat, whereas village Reha falls in Municipal Council, Theog. Petitioner has specifically averred that STP is being constructed in complete ::: Downloaded on - 15/04/2017 20:32:32 :::HCHP 3 violation of the guidelines issued by competent Authority for the purpose of construction of STP. It has also been contended that respondent No.4 illegally transferred the land .
in the name of Irrigation and Public Health Department (in short I&PH Department) that too on completely wrong and false pretext because it has been clearly stated in the report that there exists no trees on the land, no common place i.e. of school, water sources and cremation ground. The petitioner averred in the petition that on spot there exists number of rt trees, which have been destroyed by the respondents for the construction of STP. It is specifically averred that at a distance of about 100 meters of the proposed site, there is a cremation ground and there are about five water sources around the land and a few of them are just at a distance of 10-20 meters. Petitioner specifically averred that while transferring the land in the name of I&PH Department for the construction of aforesaid Plant, these aforesaid facts have not been taken into consideration and as such, STP should not be allowed to be constructed on Khasra No.963/1, area measuring 3377.50 square meters, situate in Mauza Rai Ghat, Tehsil Theog, District Shimla, being detrimental to the residents of area as well as ecology. It is also averred that the villagers of the area came to know in the beginning of the year 2014 that I&PH Department has started construction ::: Downloaded on - 15/04/2017 20:32:32 :::HCHP 4 activities of STP. It is also alleged that in the beginning of the year 2014, number of trees were standing on Khasra No.963/1, which were later cut by the respondents for .
construction of the STP and when it came to the knowledge of the villagers, they opposed the same by passing various resolutions against construction of STP. By way of Resolutions passed by various Organizations as well as Gram of Panchayats, respondents-State, has been repeatedly requested not to construct STP on the proposed site i.e. rt Khasra No.963/1, but all in vain. Petitioner also placed on record Resolutions passed by Organization as well as Panchayat and cutting of newspaper reflecting therein the protest lodged by the residents of that area that at proposed site of construction of STP many trees have been cut and the land being used for grazing of cattle has been destroyed.
Apart from this, few water sources situated at spot have also been destroyed. Petitioner stated that by way of information received under Right to Information Act, 2005, (In short RTI Act), it came to their notice that the Divisional Commissioner, Shimla has transferred that land in the name of I&PH Department for construction of storage tank of STP vide order dated 2.4.2012 (Annexure P-5), perusal whereof suggests that while transferring the land in question for the purpose of construction of storage tank of STP, respondents ::: Downloaded on - 15/04/2017 20:32:32 :::HCHP 5 placed wrong facts before the Divisional Commissioner, Shimla, who, also without verifying the factual position on the spot, approved transfer of land in the name of I&PH .
Department for the aforesaid construction of STP. Petitioner averred that though in the order dated 2.4.2012 there is mention that there is no cremation ground in or around the land and there was no tree standing on the land, but such of mention in the letter is totally contrary to the records as well as position on the spot. Petitioner also stated that perusal of rt order dated 2.4.2012, Annexure P-5, shows that the land was transferred in the name of I&PH Department was required to put to use within a period of 2 years for the purpose, failing which same would become surplus and would revert to the Revenue Department, Himachal Pradesh.
4. In the present case, the aforesaid period of two years have elapsed, as such, no construction of STP can be allowed to be made on the spot after completion of two years and land is required to be transferred to surplus pool of the Revenue Department. Petitioner specifically stated that the land on which STP is being constructed as well as adjoining land is always used by the villagers being common land and some land is used for grazing cattle by the villagers. It is also submitted that since there are number of trees standing on the land and as per judgment passed by Hon'ble Apex Court ::: Downloaded on - 15/04/2017 20:32:32 :::HCHP 6 in T.N. Godavarman Thirumulkpad vs. Union of India and Others, (1997)2 SCC 267, held that it is a forest land and, thus, cannot be put to any non-forestry purpose. Thus, any .
proposal to make STP in forest land cannot be allowed to sustain. Petitioner also averred that since there are lot of objections from the residents of that area, respondents should have taken steps moving STP to some other of alternative place, where there is no population around the land and where there are no trees on the land. It is also submitted that the land on which STP is being constructed, there are lands rt and properties of the villagers and virtually it falls within the residential area and any construction of STP in and around this area would be causing lot of inconvenience to the residents of that area. It is also averred that otherwise also it is the fundamental duty of all the citizens as per Article 51-A of the Constitution of India to protect, water sources and other amenities available.
5. In the aforesaid background, petitioner prayed that the respondents may be restrained from constructing the STP in the land denoted by Khasra No.963/1, Mauza Rai Ghat, Tehsil Theog, measuring 3377.50 square meters and permission granted by the Divisional Commissioner transferring the land in favour of I&PH Department may kindly be quashed and set aside being based upon incorrect report.
::: Downloaded on - 15/04/2017 20:32:32 :::HCHP 76. Respondents No.1 to 3 filed their reply, duly supported by the affidavit of Superintending Engineer, I&PH Circle, Shimla, wherein specific objection of delay and .
latches has been taken. It is stated that the petition suffers from delay and latches because construction of the STP for Theog town started on 22.2.2014, whereas present petition has been filed after the lapse of two years. It is also averred of that more than 67.88% work of construction has already been completed and approximately an amount of Rs.357.16 rt lacs has been spent on the construction of STP, which is being constructed in the interest of general public. However, during the arguments, learned Advocate General, informed that by now more than 75% work on the site has been completed. It is specifically averred by the respondents No.1 to 3 in their reply that STP has been/is being constructed over the barren land and no villages would be affected by the construction of STP, moreover it would be beneficial to the entire area of Theog Sub Division. It has also come in the aforesaid reply that in the year 2006, the competent Authority approved the construction of STP for Theog town at a cost of Rs.423.17 lacs vide its letter NO.I&PH-B(F) 07.06.2006.
7. In this behalf, respondent No.4 sought necessary report from the SDO(C), Theog, who, after verifying the ::: Downloaded on - 15/04/2017 20:32:32 :::HCHP 8 record, site etc., submitted a report to the respondent No.4, requesting therein for transfer of land in question in the name of I&PH Department. It has also come in the reply that .
land in question is a Government land, located at a distance of 400 meters down the hill from the National Highway-22 (In short `NH-22'), which was in possession of the Municipal Council, Theog. The land proposed for construction of STP of is vacant on spot and no trees whatsoever exist upon it.
Rather, it has come in the reply that no common place i.e. rt school, water sources exists/situate upon the proposed land.
Hence, in view of the independent report of the SDO(C), respondent No.4 transferred the said Government land comprised in Khasra No.963/1, measuring 3377.50 square meters in the name of I&PH Department to enable it to construct the STP for the Theog town, which is admittedly in the public interest. It has also come in the reply that consequent upon transfer of the land in the name of I&PH Department, tenders were floated and work for the construction of said STP for Theog town was awarded to one M/s.Dogra Construction Private Limited Company, Bhoranj, District Hamirpur for Rs.2,64,43,731/- i.e. Annexure R-2.
The contractor has already started construction of STP on 22.2.2014. Apart from above, work relating to laying of sewerage pipe was awarded to another contractor vide letter ::: Downloaded on - 15/04/2017 20:32:32 :::HCHP 9 dated 29.12.2007, amounting to Rs.1,90,97,165/-, who actually started laying of pipes on 13.1.2008 and till date of filing of affidavit about 68% of the whole work has been .
completed. It is specifically denied that the villagers, who are residents of villages Jatain, Dochi and Reha actually started opposing construction of the said STP at the very beginning of the starting of work, whereas, they started opposing the of Project in April, 2014, when work of laying sewerage pipes was at the stage of completion. By way of reply it is also rt stated that consent from Himachal Pradesh State Pollution Control Board, Shimla, under the provisions of Water (Prevention & Control of Pollution) Act, 1974 to establish the said STP of 1.5 MLD capacity at Theog for the residents of Theog town has already been obtained vide Annexure R-3.
8. Hence, there is no violation of Rules, if any, as has been alleged by the petitioner in constructing the STP and same is being constructed strictly within the norms laid in this regard. It has been specifically submitted that cremation ground of the village is located at a distance of 3-4 Kilometers away from the site of STP. Existence of five water sources, as alleged, by the petitioner has also been denied by the respondents. It has come in the reply that village Jatain is located on the opposite side of the valley, which is at a distance of 1 KM from the site, where STP is being ::: Downloaded on - 15/04/2017 20:32:32 :::HCHP 10 constructed. Even village Dochi is also located on the opposite side of the valley and same is at a distance of 1.5 KM. from the proposed site of STP. As per reply of the .
respondents only one house is located near the site of STP which is also situated on the upper side of the STP and as such no villagers are going to be affected from the construction of said STP. Respondents have categorically of stated that the work of site was started through contractor on 22.2.2014, meaning thereby that same was started within rt a period of two years from the date of issuance of Annexure P-5 i.e. order dated 2.4.2012 passed by the Divisional Commissioner, hence, averments with regard to non-use of the land within stipulated period of two years is devoid of any merit. It is also stated that even after constructing the STP, land would be available for grazing animals, if any, for the residents of village Jatain, which is otherwise located on the opposite side of the valley. By way of reply, photographs of the spot have also been annexed, perusal whereof suggest that a substantial work has already been done on the site.
9. Respondent No.4 i.e. Divisional Commissioner, Shimla, who had actually issued order dated 2.4.2012 of transferring the land in the name of I&PH Department also filed reply to the writ petition, wherein it is stated that pursuant to the request submitted by the Executive ::: Downloaded on - 15/04/2017 20:32:32 :::HCHP 11 Engineer, I&PH Division No.1, Shimla, for the transfer/ possession of the Government land, comprised in Khasra No.963/1, measuring 3377.50 square meters, situated in .
Mauza Rai Ghat, Tehsil Theog, District Shimla in the name of I&PH Department for construction of STP was acceded only on the basis of report submitted by SDO(C), Theog. It is further averred that the Deputy Commissioner, Shimla of recommended the case for transfer of the possession of the Government land, as referred above, and after getting the matter rt inquired through SDO(C), Theog, he granted permission. As per report of the SDO(C), Theog, the proposed land was owned by Government of Himachal Pradesh and possession was recorded in the name and style of "Kabza Nagar Parishad, Theog" and classification of land was "Gair Mauroosi" in revenue record and proposed land was vacant on spot and there were no trees upon it and no common place, water resources, cremation ground existed on the proposed land. As per report, proposed land is 400 meters away from NH-22 and Nagar Parishad, Theog, has/had no objection for transfer of possession of the proposed land.
The estate right holders has/had no objection for transfer of possession of the proposed land as the copy of statement of right holders, duly countersigned by the Tehsildar, Theog, was attached with the case file.
::: Downloaded on - 15/04/2017 20:32:32 :::HCHP 1210. Apart from above, it also appears that pursuant to the notice issued by this Court, respondent No.4 directed the SDO(C), Theog vide letter No.(SML)E(1)11/2012-Vol-11- .
209, dated 21.1.2016 to inquire into the matter personally alongwith technical staff/officer of I&PH Department and submit the enquiry report to this office. In compliance to the office order, the SDO(C) visited the spot alongwith of Assistant Engineer and Junior Engineer, I&PH Sub Division, Theog, and reported as under:
rt "The land in question is 400 meters away from NH-5 and the land is vacant on spot and there exist no trees upon it, there exists no common place i.e. School, Water Resources and Crematory ground etc. on the land transferred for the purpose." He has further observed that "the village of Jatain, Dochi and Reha are situated at the distance of about 1 Kilometer from the place of plant (Annexure R-5)"
11. In the aforesaid background, petitioner approached this Court for the relief(s) as have been enumerated hereinabove invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.
12. We have heard learned counsel for the parties and have gone through the record of the case.
::: Downloaded on - 15/04/2017 20:32:32 :::HCHP 1313. Mr.Sanjeev Bhushan, learned Senior Counsel, appearing for the petitioner, vehemently argued that the action of the respondent-State in constructing the STP on .
Khasra No.963/1, measuring 3377.50 square meter, is in complete violation of the guidelines/instructions issued in this regard by the competent Authority. He contended that the aforesaid Project is being constructed by the respondents of in complete violation of the Rules in vogue and land in question has been wrongly transferred in the name of I&PH rt Department that too by concealing material facts.
contended that on spot there exists trees, water sources, He school and cremation ground, but despite aforesaid, respondents by concealing material facts got the land transferred in the name of I&PH Department for the construction of STP.
14. Mr.Bhushan, strenuously argued that respondents, before taking any steps for construction of STP at proposed site, failed to take into confidence the residents of that area as `No Objection Certificate' whatsoever was obtained from the Gram Panchayats despite there being lot of resistance from the local residents, who would be put to lot of inconvenience by construction of STP. Residents are not happy with the construction of the STP on the proposed site, which is otherwise not suitable for the construction of ::: Downloaded on - 15/04/2017 20:32:32 :::HCHP 14 the same. During argument, he invited the attention of this Court to various documents placed on record to suggest that there is lot of opposition from the residents of the area as .
well as of Panchayats. He also invited the attention of this Court to Annexures P-7 and P-8 i.e. Jamabandies for the years 1997-98 and 2003-2004 filed with the rejoinder to substantiate his arguments that the land proposed for of construction of STP is a common land being used by people of that area.
15. rt Mr.Bhushan also vehemently argued villagers of the area have been opposing the construction of that STP at proposed site from day one. Since they (residents of the area) came to know only after issuance of order dated 20.4.2012, whereby land was ordered to be transferred to the I&PH Department, all steps thereafter were taken to oppose the construction of the sewerage tank of STP on Khasra No.963/1, measuring 3377.50 square meters. He also contended that in case STP is allowed to be constructed on the proposed site, great injustice would be caused to the residents of that area as well as to the ecology of the area as number of trees have been cut by the respondents in the process of construction, all the natural sources of water have been destroyed and no place has been left for the villagers for grazing their cattle. Hence, he prayed that appropriate writ ::: Downloaded on - 15/04/2017 20:32:32 :::HCHP 15 or direction may be issued to the respondents restraining them from raising any construction on the land in question.
16. Shri Shrawan Dogra, learned Advocate General, .
appearing on behalf of the respondents-State, forcefully contended that present writ petition is not maintainable at all because the petitioner has not been able to establish/ prove the locus to file the present petition on behalf of the of petitioners. He stated that in the garb of so called Public Interest Litigation (in short `PIL'), few interested people are rt trying to stall the construction of STP on the given site, which is admittedly being constructed for the benefit of public of Theog town at large. He further contended that while constructing STP respondents complied with each and every instruction issued in this regard by the concerned Authorities so that no damage is caused to the residents of that area as well as ecology of that area. During arguments he invited the attention of this Court to various documents annexed with the pleadings to substantiate his plea that respondent No.4, before issuing orders for transfer of land in the name of I&PH Department, actually obtained report from the revenue authorities, wherein it is categorically informed that land is barren and there exists no trees, school, water sources and cremation ground. He forcefully contended that the STP is being constructed solely in the interest of ::: Downloaded on - 15/04/2017 20:32:32 :::HCHP 16 residents of Theog town and in this regard already huge amount has been spent by the respondents and on going construction on the spot cannot be ordered to be stopped .
that too at the behest of some vested interests. He also contended that the present petition is barred by delay and latches because as has been pointed out in the reply that work actually commenced on the site in the year 2008, when of the contractor started laying sewerage pipes, now when more than 75% work has been completed after spending huge rt amount, petitioner cannot be allowed to obstruct the construction work of STP by sheer abuse of process of law.
He prayed for dismissal of the writ petition.
17. It is ample clear from the pleadings on record that process of construction of STP for Theog town started in the year 2006, when necessary steps were taken by the respondents for transferring the land in question in the name of I&PH Department. Record further reveals that order of transferring land in the name of I&PH Department was passed in the year 2012, and thereafter tender was floated and work for construction of STP was awarded to the contractor on 29.10.2013 and the work started at the site on 22.2.2014. Apart from above, it is also on record that before starting the construction of aforesaid STP, work of laying sewerage pipes was already allotted to another contractor in ::: Downloaded on - 15/04/2017 20:32:32 :::HCHP 17 the year 2007, who actually started the work of laying of pipes on 13.1.2008. It also remains fact that as of today more than 75% work has been completed by the respondents .
as far as construction of STP is concerned.
18. In the present case, respondents have taken specific objections of delay and latches as well as the locus to file PIL, accordingly with a view to test the aforesaid of submissions made by the respondents, it would be necessary for us to prefer the documents available on record to verify rt that when petitioner for the first time raised issue with regard to construction of STP with the respondents-
Authorities. As per the case of the petitioner, factum with regard to construction of STP came to their notice, when order dated 2.4.2012, passed by the Divisional Commissioner, transferring the land in the name of I&PH Department, was supplied under RTI Act. The aforesaid statement of the petitioner cannot be accepted solely for the reasons that as has come in the reply of the State that decision to construct the STP on the given site was taken in the year 2006, whereafter steps were taken to obtain the permission from respondent No.4 for transfer of land in the name of I&PH Department. Moreover, there is ample evidence on record to suggest that work of laying sewerage pipes was started in the year 2008. Moreover, as per own ::: Downloaded on - 15/04/2017 20:32:32 :::HCHP 18 case of the petitioner that they had acquired the knowledge of construction of STP in the year 2012 but admittedly the present petition has been filed in the year 2015 i.e. after .
three years of acquiring knowledge and there is no explanation worth the name, except of making representations with the respondent-Department. It is undisputed that the STP, being constructed by the of respondents, is in the interest of residents of Theog area and it cannot be believed that petitioner and residents of the area rt were not aware of the decision as well as steps taken thereafter for construction of STP. Hence, explanation rendered by the petitioner for filing the present petition, after a considerably delay, is not worth credence and cannot be accepted.
19. Apart from delay and latches, petitioners have not placed on record any documentary evidence to substantiate their claim with regard to damage caused to the ecology. Though petitioner has stated that in the process of construction of STP, number of trees have been cut and damages have been caused to the water sources but there is no documentary evidence worth name, which could indicate that trees were cut on the spot by the respondents for the construction of STP. Petitioners have alleged that great damage has been caused to the water sources in and around ::: Downloaded on - 15/04/2017 20:32:32 :::HCHP 19 the proposed site of STP and there is one cremation ground.
But, as has been stated above, we have not been able to find any document on record which could substantiate the .
aforesaid submissions as well as arguments raised on behalf of the petitioners. Admittedly, some resolutions as well as newspaper cuttings have been placed on record by the petitioner to show that people of that area agitated against of the decision of the respondents to construct the STP on the given site but certainly that cannot be a ground for this rt Court for restraining the respondents from constructing the STP, which is otherwise appears to be in the interest of public at large.
20. To the contrary, respondents-State by way of reply have categorically stated that the construction of STP Project was in the knowledge of the general people of that area and same is being constructed in their interest by spending huge amount. Allegations with regard to cutting of trees, destruction of water sources, existence of school and cremation ground etc. have been specifically denied by the respondents and this Court do not see any reason to disbelieve the version put forth by the respondents by way of reply which is duly supported by an affidavit of competent officer of the State.
::: Downloaded on - 15/04/2017 20:32:32 :::HCHP 2021. Allegations with regard to the irregularities committed by the respondent No.4 at the time of ordering transfer of land also appears to be ill-founded and without .
any basis because all the respondents have unequivocally stated in their reply(s) that no tree has been damaged in the process of construction of STP and no damage, as such, has been caused to the water sources, rather it has been stated of that the land in question was barren and there was no tree on the spot. Respondents have also stated that in the rt vicinity of 1.5 to 2 KMs, there are no houses except one house, which is also situated on the upper side of the STP.
Factum with regard to the existence of cremation ground, school and water sources have been categorically denied. It is important to notice here that before filing reply, pursuant to the notice issued by the Court, respondent No.4, who had ordered for transfer of the land in the name of I&PH Department, again got the matter inquired from the SDO(C), Theog, with regard to existence of tree, school, water sources and cremation grounds on the proposed site of construction of STP but, as has been reproduced above, the SDO(C), Theog, again reported that on the proposed site there are no trees, school, water sources and cremation grounds.
Moreover, this Court cannot loose sight of the fact that aforesaid STP is being constructed for the interest of public ::: Downloaded on - 15/04/2017 20:32:32 :::HCHP 21 at large and, as such, any contention of the petitioner to the contrary that same is being constructed in violation of Rules and against the interest of public cannot be accepted and .
same deserves to be rejected out-rightly. As has been observed above, petitioner has not placed on record any document which could compel this Court to restrain the respondents from constructing STP on the given site.
of
22. Petitioner, by way of rejoinder, has placed on record Jamabandies for the years 1997-98 and 2003-2004 rt indicating therein that owner of land in question is State and the same has been shown as "common village land". It has come in the reply of the respondents-State that as far as grazing of cattle is concerned, people of that area can always use that land which is otherwise a barren land. Moreover, revenue record suggests that owner of the land is State and the NOC was obtained from the Nagar Parishad, Theog, who has been shown in possession of the land, by the respondents and, as such, the petitioner cannot have any grouse, whatsoever, with regard to the construction of STP which is admittedly being constructed on the land of Municipal Council, Theog in the public interest.
23. At this stage, it is observed that such petitions, that too in the name of PIL, cannot be allowed to be used as a tool that too by some vested interests, who for some ::: Downloaded on - 15/04/2017 20:32:33 :::HCHP 22 ulterior motive do not want this Project to come up. In the present case, except the resolution passed by residents of Gram Panchayats of the area authorizing the petitioner to .
file present petition, no other material has been placed on record to point out that Project in question is not in public interest and the same is being constructed in violation of the guidelines framed by the respondent-State as well as Courts of from time to time.
24. Though, this Court vide judgment in CWP rt No.9480 of 2014, titled: Vijay Kumar Gupta vs. State of Himachal Pradesh and Others, decided on 09.01.2015, has already issued the following guidelines as far as filing of PIL is concerned:-
"29. From the aforesaid exposition of law, it can safely be concluded that the Court would allow litigation in public interest only if it is found:-
(i) That the impugned action is violative of any of the rights enshrined in Part III of the Constitution of India or any other legal right and relief is sought for its enforcement;
(ii) That the action complained of is palpably illegal or malafide and affects the group of persons who are not in a position to protect their own interest or on account of poverty, incapacity or ignorance;
(iii) That the person or a group of persons 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;::: Downloaded on - 15/04/2017 20:32:33 :::HCHP 23
(iv) That such person or group of persons is not a busy body or a meddlesome interloper and have not approached with mala fide intention of vindicating their .
personal vengeance or grievance;
(v) That the process of public interest litigation was not being abused by politicians or other busy bodies for political or unrelated objective. Every default on the part of the State or Public Authority being not justiciable in such litigation;
(vi) That the litigation initiated in public of interest was such that if not remedied or prevented would weaken the faith of the common man in the institution of the judicial and the democratic set up of the country;
rt
(vii) That the State action was being tried to be covered under the carpet and intended to be thrown out on technicalities;
(viii) Public interest litigation may be initiated either upon a petition filed or on the basis of a letter or other information received but upon satisfaction that the information laid before the Court was of such a nature which required examination;
(ix) That the person approaching the Court has come with clean hands, clean heart and clean objectives;
(x) That before taking any action in public interest the Court must be satisfied that its forum was not being misused by any unscrupulous litigant, politicians, busy body or persons of groups with mala fide objective or either for vindication of their personal grievance or by resorting to black-mailing or considerations extraneous to public interest."
but in the present case there is no compliance whatsoever, of the guidelines, referred herein above, and, as such, present ::: Downloaded on - 15/04/2017 20:32:33 :::HCHP 24 petition cannot be termed as PIL in any manner and the same deserves to be dismissed.
25. Though, by way of present petition, it has been .
claimed that the same has been filed in public interest but as clearly emerges from the record, as has been discussed hereinabove, there is no material whatsoever available on record which could persuade this Court to believe that the of petitioner is a `Pro Bono Publico' and petition is filed in public interest. Rather, careful perusal/analysis of the documents rt available on record suggests that it is a handy work of some vested interests who certainly for extraneous reasons do not want the Project like the present STP to come up in the area which is admittedly need of hour in the present scenario.
26. During the arguments, this Court had an occasion to sift the entire documentary evidence made available on record as well as pleadings of the parties, perusal whereof clearly suggests that the Project which is being sought to be closed by invoking extra ordinary jurisdiction of this Court is in larger public interest. Careful reading of the specific reply given by the respondent-
Department to the averments made in the writ petition clearly depicts that the petitioner has not approached this Court with clean hands, rather attempt has been made to hoodwink the Court by concealing material facts that too ::: Downloaded on - 15/04/2017 20:32:33 :::HCHP 25 solely with a view to obtain orders from the Court restraining the respondents from constructing STP at Theog town. None of the averments, with regard to cutting of trees, existence of .
school, water sources and cremation ground, have been admitted by the respondents in their respective replies. To the contrary, the reply filed by the respondents which is duly supported by an affidavit of responsible officer of the State of suggests that necessary precautions/measures have been taken by the Department to protect the ecology/environment rt before granting necessary permission for the construction of STP at Theog. It has also been brought to the notice of this Court that at the time of hearing more than 75% of work of STP is completed by spending huge amount and there is no specific denial, whatsoever, on behalf of the petitioner to the aforesaid assertions made by the respondents in their reply, meaning thereby that the contentions, put forth by the petitioner in the petition in the shape of PIL, are not correct.
Moreover, as has been noticed above, except for one resolution authorizing the petitioner to file petition, which is available on record, no document whatsoever has been made available on record, by the petitioner to substantiate the averments contained in the writ petition. Hence in view of the facts and circumstances enumerated hereinabove, this Court has no hesitation to conclude that by no stretch of ::: Downloaded on - 15/04/2017 20:32:33 :::HCHP 26 imagination present petition can be termed to be as PIL.
Rather contents of the same appear to be frivolous, vexatious and far-far away from the correct position on the spot. This .
court as well as Hon'ble Apex Court have repeatedly expressed their concern with regard to growing menace of so called PIL, whereby some vested interests by concealing material facts attempts to rope in the Courts in the name of of public interest.
27. Hon'ble Apex Court expressing its serious rt concern over misuse of PIL has repeatedly observed that use of the PIL has to be done with care, caution and circumspection so that it is not misused by certain people having vested interest.
28. Hon'ble Apex Court in case Central Electricity Supply Utility of Odisha vs. Dhobei Sahoo and Others (2014)1 SCC 161, observed as under:
"24. Ordinarily, after so stating we would have proceeded to scan the anatomy of the Act, the Rules, the concept of the Scheme under the Act and other facets but we have thought it imperative to revisit certain authorities pertaining to public interest litigation, its abuses and the way sometimes the courts perceive the entire spectrum. It is an ingenious and adroit innovation of the judge-made law within the constitutional parameters and serves ::: Downloaded on - 15/04/2017 20:32:33 :::HCHP 27 as a weapon for certain purposes. It is regarded as a weapon to mitigate grievances of the poor and the .
marginalized sections of the society and to check the abuse of power at the hands of the Executive and further to see that the necessitous law and order situation, which is the duty of the State, is properly sustained, the people in impecuniosities do not die of hunger, the national economy of is not jeopardized; the rule of law is not imperiled; human rights are not endangered, and probity, transparency rt and integrity in governance remain in a constant state of stability. The use of the said weapon has to be done with care, caution and circumspection. We have a reason to say so, as in the case at hand there has been a fallacious perception not only as regards the merits of the case but also there is an erroneous approach in issuance of direction pertaining to recovery of the sum from the holder of the post. We shall dwell upon the same at a later stage.
25. As advised at present, we may refer to certain authorities in the field in this regard. In Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161 Bhagwati, J., (as his Lordship then was) had observed thus:
(SCC p.183, para 9) "9. ....When the Court entertains public interest litigation, it does not do so in a caviling spirit or in a confrontational ::: Downloaded on - 15/04/2017 20:32:33 :::HCHP 28 mood or with a view to tilting at executive authority or seeking to usurp it, but its attempt is only to ensure observance of social and economic rescue programme, legislative as well as executive, framed .
for the benefit of the have-nots and the handicapped and to protect them against violation of their basic human rights, which is also the constitutional obligation of the executive. The Court is thus merely assisting in the realization of the constitutional objectives."
"26. In Dr. D.C. Wadhwa and others v. State of Bihar (1987) 1 SCC 378 the Constitution of Bench, while entertaining a petition under Article 32 of the Constitution on behalf of the petitioner therein, observed that it is the right of every citizen to insist that he rt should be governed by laws made in accordance with the Constitution and not laws made by the executive in violation of the constitutional provisions. It has also been stated therein that the rule of law constitutes the core of our Constitution and it is the essence of rule of law that the exercise of the power by the State whether it be the legislature or the executive or any other authority should be within the constitutional limitation and if any practice is adopted by the executive which is in flagrant violation of the constitutional limitations, a member of the public would have sufficient interest to challenge such practice and it would be the constitutional duty of the Court to entertain the writ petition.
27. In Neetu v. State of Punjab (2007) 10 SCC 614 the Court has opined that it is ::: Downloaded on - 15/04/2017 20:32:33 :::HCHP 29 shocking to note that Courts are flooded with large number of so called public interest litigations where even a .
minuscule percentage can legitimately be called as public interest litigation.
Commenting on entertaining public interest litigations without being careful of the parameters by the High Courts the learned Judges observed as follows: (SCC p. 617, para 5) of "5. `16....Though the parameters of public interest litigation have been indicated by this Court in large number of cases, yet unmindful of the real rtintentions and objectives, [High Courts] are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. (Ashok Kumar Pandey v. State of West Bengal (2004) 3 SCC 349, SCC p.358, para 16)"
Thereafter, giving a note on caution, the Court stated:
"6. `12. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering social justice to the citizens."
(B.Singh versus Union of India (2004)3 SCC 363, SCC p.372, para 12)"
(pp.175-176)
29. Hon'ble Apex Court in State of Uttaranchal vs. Balwant Singh Chaufal and Others, (2010)3 SCC 402, ::: Downloaded on - 15/04/2017 20:32:33 :::HCHP 30 while dealing with the issue of growing menace of Public Interest in the Country, observed as under:-
"143. Unfortunately, of late, it has been noticed .
that such an important jurisdiction which has been carefully carved out, created and nurtured with great care and caution by the courts, is being blatantly abused by filing some petitions with oblique motives. We think time has come when genuine and of bona fide public interest must be encouraged whereas frivolous public interest litigation should be discouraged. In our considered opinion, we have to rt protect and preserve this important jurisdiction in the larger interest of the people of this country but we must take effective steps to prevent and cure its abuse on the basis of monetary and non-
monetary directions by the courts.
144. In BALCO Employees' Union (Regd.) v. Union of India & Others (2002)2 SCC 333, this Court recognized that there have been, in recent times, increasing instances of abuse of public interest litigation.
Accordingly, the court has devised a number of strategies to ensure that the attractive brand name of public interest litigation should not be allowed to be used for suspicious products of mischief. Firstly, the Supreme Court has limited standing in PIL to individuals "acting bonafide." Secondly, the Supreme Court ::: Downloaded on - 15/04/2017 20:32:33 :::HCHP 31 has sanctioned the imposition of "exemplary costs" as a deterrent against frivolous and vexatious public interest .
litigations. Thirdly, the Supreme Court has instructed the High Courts to be more selective in entertaining the public interest litigations.
153. In J. Jayalalitha v. Government of T.N. (1999) 1 SCC 53, this court laid down that of public interest litigation can be filed by any person challenging the misuse or improper use of any public property including the political party in power for rt the reason that interest of individuals cannot be placed above or preferred to a larger public interest.
155. In Dattaraj Nathuji Thaware V. State of Maharashtra (2005) 1 SCC 590, this court expressed its anguish on misuse of the forum of the court under the garb of public interest litigation and observed (SCC p.595, para 12) that the "public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest, an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering social justice to the citizens. The court must not ::: Downloaded on - 15/04/2017 20:32:33 :::HCHP 32 allow its process to be abused for oblique considerations...."
.
30. Perusal of the observations made hereinabove as well as law laid down by Hon'ble Apex Court as well as this Court, PIL cannot be allowed to be used as a tool by irresponsible unscrupulous litigants to serve their vested interest in the garb of public interest.
of
31. In the present case we are constrained to observe that no material whatsoever has been made rt available from where it could be inferred that the present petition has been filed in the Public Interest, rather, careful perusal of the pleadings on record persuaded this Court to draw a conclusion that the present petition with some vested interests have made an attempt by filing this frivolous petition to obtain illegal orders from the Court on the name of PIL. Moreover, careful perusal of the pleadings on record nowhere suggests that petitioner fulfill the criteria as has been identified/laid down by this Court in Vijay Kumar Gupta's case supra which can persuade this Court to consider the instant petition as a PIL.
32. As has been noticed above that respondents have already incurred huge amount in the construction of STP, which otherwise appears to be being constructed strictly in conformity with the Rules and guidelines issued by ::: Downloaded on - 15/04/2017 20:32:33 :::HCHP 33 the competent authorities in that regard, petitioner cannot be allowed to make sheer abuse of the process of law by filing such frivolous petitions. It is seen that work is being .
hampered at the spot which would have been completed by now but for illegal/unjust approach adopted by certain people like petitioner, who without there being sufficient material on record resorted to legal proceedings as in the of instant case to halt the developmental activities being taken up by the respondents-State, rather such practice deserves rt to be deprecated and such persons need to be dealt with sternly.
33. Consequently, in view of the aforesaid discussion, we do not see any reason to invoke extra ordinary jurisdiction of this Court to issue writ of mandamus, commanding respondents to stop the construction of STP. Hence the present petition is dismissed being devoid of any merit with costs of Rs.25,000/- to be paid to the H.P. State Legal Services Authority.
34. Interim direction, if any, is vacated. All miscellaneous applications are disposed of.
(Mansoor Ahmad Mir)
Chief Justice
2nd June, 2016 (Sandeep Sharma)
(aks) Judge
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