Allahabad High Court
Mumtaj Ali vs State Of U.P. And 4 Others on 27 January, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 7 Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 1519 of 2022 Petitioner :- Mumtaj Ali Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Umesh Chandra Prajapati,Chandra Prakash Tiwari Counsel for Respondent :- C.S.C.,Deepak Gaur,Shashwat Kishore Chaturvedi Hon'ble Chandra Kumar Rai,J.
1. Heard Mr. Chandra Prakash Tiwari, learned counsel for the petitioner, Mr. Shashwat Kishore Chaturvedi, learned counsel for respondent no.5 and Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents and Mr. Deepak Gaur, learned counsel for respondent-Gram Sabha.
2. Petitioner has filed the instant petition in public interest stating that petitioner has no personal and private interest in the present matter and the result of the present litigation will not lead any undue gain to the petitioner and anyone associated with him, hence present public interest litigation be entertained.
3. Petitioner has pleaded in the petition that plot no.678 area 1.2060 hectare situated in Village-Bamauan, Tahsil- Tahrauli, District- Jhansi is reserved for public-abadi in revenue record. He further pleaded that plot no.678 is road side plot and valuable property of gaon sabha so few person of the locality including petitioner moved an application before Additional District Magistrate (Administration), Jhansi for construction of Community Health Centre over plot no.678 as the same is adjacent to road and tahsil campus accordingly, a letter was sent to Sub-Divisional Officer to provide land about two acre for construction of Community Health Centre, Tehrauli, accordingly, a report of Lekhpal was submitted on 2.9.2021 to the effect that land is fit for government scheme but husband of respondent no.5 in collusion of local political leader is adamant to use the reserve land to his own purpose by allotting the same for residential complex to his own persons, hence this writ petition before this for following reliefs:-
"i. Issue a writ, order or direction in the nature of writ of mandamus directing the respondent nos.2 & 3 to restrain the husband of respondent no.5 to not construct the shops over the plot no.678 area 1.2060 hectare situated in Village- Bamauan, Tahsil- Tahrauli, District- Jhansi recorded in revenue records as 'public abadi'.
ii. Issue a writ, order or direction in nature of mandamus directing the respondent nos.2 & 3 may be directed to use the plot in question for public purposes under Sections 59 & 60 of the U.P. Revenue Code, 2006.
iii. Issue any other writ, order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case.
iv. Award the cost to the petitioner."
4. This Court while entertaining the writ petition passed the following interim order dated 29.8.2022:-
"Sri Abhishek Shukla, learned Additional Chief Standing Counsel seeks two weeks' time to obtain instructions in the matter.
It is argued that the land in question was requested to be reserved for construction of Community Health Centre, Tahrauli, District Jhansi which requires two acres of land and in this regard the Additional District Magistrate had called for a report and report has also been submitted. The Commissioner, Jhansi Division, Jhansi has also asked the District Magistrate to proceed in the matter in accordance with law under its order dated 22.12.2021 upon an application being moved before him. However, it is submitted that nothing has progressed in the matter and the Gram Panchayat was set to raise construction.
List on 14.09.2022.
In the meanwhile further construction activities upon the land in question of the Gaon Sabha to utilize the land commercially shall not be continued."
5. The interim order dated 29.8.2022 was extended on 2.1.2023 and 23.1.2023.
6. In pursuance of the interim order dated 29.8.2022, respondent no.5, who is a gram pradhan and has been impleaded by name, hence she appeared through counsel and filed her counter affidavit along with stay vacation application. Petitioner has filed rejoinder affidavit also in reply to the counter affidavit of respondent no.5.
7. Mr. Abhishek Shukla, learned Additional Chief Standing Counsel has placed the instruction dated 17.9.2022 signed by Tahsildar, Up-Ziladhikari and District- Magistrate, Jhansi before the Court giving para wise reply of the writ petition.
8. Counsel for the petitioner submitted that plot no.678 area 1.2060 hectare is reserved for public abadi in revenue records and is a valuable property of gaon sabha. He further submitted that there is no hospital in Village-Bamauan, hence to provide proper treatment to the resident of the locality, the construction of Community Health Centre in the plot no.678 is in the public interest but respondent no.5 in collusion of local political leader and State-authorities are creating hindrance, as such, this Court should intervene in the public interest. He further submitted that gram pradhan is raising construction over plot no.678 for her own purpose, which is against the law and welfare of the locality. He further submitted that representation filed by the petitioner as well as other has not been taken into consideration by respondent nos.2 & 3 so that illegal construction activity be stopped.
9. On the other hand, Mr. S.K. Chaturvedi, counsel appearing for respondent no.5 submitted that petitioner do not want that public work may go on in plot no.678, as such, the public interest litigation petition filed by petitioner is not maintainable. He further submitted that petitioner, Mumtaj Ali applied for allotment of plot for his residential house in plot no.678 which was refused by Gaon Sabha, hence the instant the public interest litigation petition has been filed by petitioner which cannot be entertained as public interest litigation. He further submitted that ten shops over the plot no.678 has already been constructed by previous gram pradhan which are already existing and shopkeepers are giving rent to Gaon Sabha accordingly, Gaon Sabha is earning Rs.10,00,000/- per year and resident of the Gaon Sabha is getting employment. He further submitted that for construction of four more shops over the same plot with the tin shade for vegetable sellers, a resolution has been passed by Gaon Sabha on 10.5.2022 and estimate has been submitted by the engineer, accordingly, financial consent was allowed by D.P.R.O. on 26.7.2022 and construction was started on 20.8.2022. He further submitted that for the construction of the hospital, a resolution dated 15.9.2021 has been passed by Gaon Sabha, Bamanua to construct hospital in plot no.97 area 1.705 hectare, the resolution has been annexed as Annexure No.4 to the counter affidavit. He further submitted that Gaon Sabha is doing all his work for public development through its own earning. He further submitted that there is absolutely no resolution of Gaon Sabha or intention of respondent no.5 to allot the land of plot no.678 for residential purpose. He further submitted that due to ex-parte stay order granted by this Court, development of Gaon Sabha is stopped and villagers are being put to loss, as such, writ petition filed by petitioner as public interest litigation is abuse of process of law, accordingly, the same is liable to be dismissed and interim order granted on 29.8.2022 as extended on subsequent dates is to be vacated forthwith. He further placed reliance upon the following judgments of Apex Court as well as of this Court on the point of scope of public interest litigation:-
i. (2020) 18 Supreme Court Cases 419, Aleemuddin Vs. State of Uttar Pradesh and Others.
ii. 2019 (1) ADJ 74 (DB), Kishan Kumar Tyagi Vs. Suresh Chandra Sharma and Others.
10. Mr. Abhishek Shukla, learned Additional Chief Standing Counsel has also opposed the writ petition and placed the paragraph nos.3, 6, 7, 8, 11, 13 & 21 of the instruction in particular.
11. On the basis of instruction, learned Additional Chief Standing Counsel submitted that public interest litigation is liable to be dismissed.
12. In reply, counsel for the petitioner submitted that so far as proposal of Gaon Sabha for the construction of Community Health Centre in the plot no.97 is concerned, the report of Lekhpal dated 18.9.2021 demonstrate that construction of Community Health Centre is not possible in plot no.97 due to pendency of dispute regarding the plot before the Court. Learned counsel placed the Annexure Nos.RA-1, RA-2 & RA-3 to the rejoinder affidavit in support of his argument.
13. I have considered the argument advanced by learned counsel for the parties and perused the records.
14. There is no dispute about the fact that plot no.678 area 1.2060 hectare is reserved for public abadi in revenue records, which is road side plot and valuable property of Gaon Sabha.
15. There is also no dispute that Gaon Sabha has passed resolution for construction of Community Health Centre in plot no.97 area 1.705 hectare but sanction has not been given by the authorities.
16. There is also no dispute about the fact that Gaon Sabha has already constructed ten shops in plot no.678 and earning about Rs.10,00,000/- per year from ten shops and construction of further four shops is under process.
17. Since the plot no.678 is recorded as public abadi in the revenue records and Gaon Sabha after following due process had already constructed ten shops and construction of further four shops is going on, as such, exercise of writ jurisdiction under Article 226 of Constitution of India to entertain public interest litigation to decide whether plot no.678 which is recorded as public Abadi should be used by Gaon Sabha for shops or for construction of Community Health Centre, is not proper. It has come on record that Gaon Sabha is doing work in public interest in plot no.678 and Gaon Sabha / State is also considering for construction of Community Health Centre in some other plots, as such, no interference is required in the present matter.
18. Apex Court in the case of Aleemuddin (supra) has held as under in paragraph nos.10, 11, 12 & 13 of the judgment:
"10. Where a Tahsil building should be constructed in not a matter for the High Court to determine in the exercise of its writ jurisdiction under Article 226 of the Constitution of India. These are essentially administrative matters and has a decision to be taken by the executive. This is hence and illustration of how a public interest litigation ("PIL") has been utilized to subserve a personal interest. The High Courts must remain vigilant to the attempts to misuse PILs to subserve extraneous and motivated purposes. Such efforts must be dealt with firmly. High prerogative writs cannot be utilized for such ends.
11. The High Court was manifestly in error in its original order dated 6-1-2017 in directing the State to construct a new Tahsil office for Hasanpur at a particular place. This is a matter which should have been left to the State Government to take an appropriate decision.
12. Accordingly, we allowed the appeal and set aside the directions contained in the order of the High Court dated 6-1-2017. We also dispose of the petition by clarifying that it would be open to the State-Government to take an appropriate decision in accordance with law.
13. The civil appeal is, accordingly, disposed of. No costs."
19. Considering the entire facts and circumstances as well as ratio of law laid down in Aleemuddin (supra), public interest litigation filed by petitioner is abuse of process of law and is dismissed.
20. The interim order dated 29.8.2022 as extended on 2.1.2023 & 23.1.2023 is vacated.
Order Date :- 27.1.2023 Rameez