Himachal Pradesh High Court
Abhimanyu Rathore vs State Of Himachal Pradesh on 27 February, 2020
Bench: L. Narayana Swamy, Jyotsna Rewal Dua
1 HON'BLE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No.86 of 2020.
Reserved on: 09.01.2020.
Decided on: 27.02.2020.
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Abhimanyu Rathore ..........Petitioner Versus State of Himachal Pradesh .....Respondents __________________________________________________________ Coram:
Hon'ble Mr. Justice L. Narayana Swamy, Chief Justice. Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1
For the petitioner : Mr. Abhimanyu Rathore, Advocate,
r in person.
For the respondents Mr. :
Ashok Sharma, Advocate
General, with Mr. J.K. Verma, Mr.
Adarsh Sharma, Ms. Ritta Goswami
and Mr. Nand Lal Thakur, Additional
Advocate Generals, for the
respondent/ State.
____________________________________________________________ Jyotsna Rewal Dua, Judge.
The writ petitioner, a practicing lawyer, has challenged the validity of 'The Himachal Pradesh Micro, Small and Medium Enterprises (Facilitation of Establishment and Operation) Act, 2019'.
2(i). Though the petitioner is praying for writ of certiorari for quashing and setting aside 'The Himachal Pradesh Micro, Small and Medium Enterprises (Facilitation of Establishment 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.::: Downloaded on - 28/02/2020 20:23:49 :::HCHP 2
and Operation) Act, 2019' in its entirety, (hereinafter referred to as the 'Act' in short), however, the said Act has not been appended alongwith the writ petition. Instead 'The Himachal .
Pradesh Micro, Small and Medium Enterprises (Facilitation of Establishment and Operation) Bill, 2019', has been made part of the instant writ petition as Annexure P-3. However, the petitioner (a practicing lawyer), appearing in person, submits that subsequent to this Bill No.18 of 2019, 'The Himachal Pradesh Micro, Small and Medium Enterprises (Facilitation of Establishment and Operation) Act, 2019', has come into force.
2(ii). The objects and reasons of Annexure P-3, being relevant, are extracted hereinafter:-
"With a view to facilitate new investments, generate more employment and promote entrepreneurship, there is a need to give effect to exemptions from certain approvals and inspections, required for the establishment and operation of new micro, small and medium enterprises. Therefore, it seems necessary and expedient to exempt the persons, on furnishing a declaration of intent to start an enterprise, from taking certain approvals for a period of three years or till the commencement of commercial production or operation, whichever is earlier. This is likely to encourage the establishment of new enterprises, which may significantly contribute in the overall economic growth and development in the State."
2(iii). In furtherance of the above objects, impugned legislation has been enacted. Following provisions whereof have been highlighted by the petitioner:-
"7. Exemption.- Where the Government or any authority under it is empowered to exempt any ::: Downloaded on - 28/02/2020 20:23:49 :::HCHP 3 enterprise from any approval or inspection or any provisions in relation thereto under any Central Act, the Government or any such authority, as the case may be, shall, subject to the provisions of such Central Act, exercise such powers to grant such exemption to an enterprise established in the State for at least a period of three years from the date of issuance of the .
Acknowledgement Certificate or till the commencement of commercial production or operation, whichever is earlier.
8. xxxxxxxxxxxxxxxxxxxxxxxxxxxx
9. Act to have an overriding effect.- The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other State law, for the time being in force."
2(iv). The petitioner lays challenge to the Act, as a whole, on the grounds that the same is a colourable piece of legislation, arbitrary, discriminates old & existing investors, vis-
a-vis, upcoming new investors. He submits that investors can already apply for permission for purchase of land under Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972, through online portal. He further submits that the respondent-State has already implemented Online Single Window System providing approvals/ renewals of investments in all the sectors, therefore, there is no necessity of the impugned enactment, which will benefit new upcoming investors. The enactment is in furtherance of political aims & offends Rule of Law.
3(i). The legislation in question has been enacted for encouraging new investments, generating more employments ::: Downloaded on - 28/02/2020 20:23:49 :::HCHP 4 and promoting entrepreneurship. With this object, new micro, small and medium enterprises have been granted exemptions from certain approvals and inspection for a period of three .
years or till the commencement of commercial production/ operation, whichever is earlier, on their furnishing a declaration of intent to start an enterprise.
3(ii). The petitioner has not been able to establish any injury caused to public at large by the impugned legislation; the petitioner has not been able to establish as to how the enactment is arbitrary or a colourable piece of legislation; none of the old investors, alleged to be discriminated by the legislation in question, are before this Court; the petitioner has not been able to establish even his locus-standi in maintaining the present writ petition. It is not even the case of the petitioner that State is not competent to legislate on the subject. The only grounds on the basis of which the impugned legislation is challenged in the writ petition, are extracted hereinafter:-
"i). That respondents failed to execute the constitutional obligations & mandate enshrined in the part III and part IV of the Constitution of India.
ii). That respondents failed to discharge their functions objectively, and violated the fundamental principles and denied individual rights and founded their decision entirely on extraneous, arbitrary, whimsical & political reasons thereby offending 'Rule of Law'. Iii). That respondent's action were uncalled for as the same were based on non-application of mind, ::: Downloaded on - 28/02/2020 20:23:49 :::HCHP 5 thereby being ultra vires which had further resulted in the enactment of a colourable legislation.
iv). That such policy decision attracts 'Judaical Review' for being unreasonable and against public interest which is in derogation of the doctrine of equality.
v). That Himachal Pradesh has implemented online Single Window System which provides approvals and .
renewals for investment in all the sectors. Investor can now apply for permission for purchase of land under Section 118 of the Himachal Pradesh Tenancy and land Reform Act, 1972, through online portal.
vi). That the aforesaid legislation is contrary to various constitutional & environmental provisions/ principles;
vii). That the such a piece of colourable legislation is against the plethora of judicial precedents of the Hon'ble Apex Court."
Various authorities cited by the petitioner on the 'Judicial Review', 'colourable legislation' and unfair legislation, are not relevant to the points/issues raised, as in the instant writ petition the petitioner has failed to substantiate any injury caused by the impugned legislation or to point out any violation by the impugned legislation.
3(iii). The petitioner has pleaded that the instant writ petition has been preferred not for his personal benefit, but, for welfare of public. However, neither the petitioner has been able to point out any public interest involved nor he has been able to point out any violation in the impugned legislation nor he has been able to substantiate as to how the impugned legislation is bad in the eyes of law nor he has been able to substantiate his own locus-standi in filing and maintaining the present writ petition. The broad canvass, which is being sought ::: Downloaded on - 28/02/2020 20:23:49 :::HCHP 6 to be painted in the instant writ petition, does not come within the domain and sphere of public interest litigation.
3(iv). In various pronouncements Hon'ble Apex Court has .
cautioned misuse of public litigation, some of which are extracted hereinafter:-
In (2018) 6 SCC 72, titled Tehseen Poonawalla versus Union of India & another and other connected matters, Hon'ble Apex Court dealt with a bunch of petitions seeking inquiring into circumstances of death of a Judicial Officer in the rank of District Judge. Dismissing the petitions, the Apex Court, while noticing the misuse of Public Interest Litigations, observed that at one end there are cases where public interest petitions are motivated with a desire to seek publicity and at the other there are petitions instituted at the behest of business or political rivals to settle scores. In the judgment (supra), Hon'ble Apex Court held as follows:-
"98. The misuse of public interest litigation is a serious matter of concern for the judicial process. Both this court and the High Courts are flooded with litigation and are burdened by arrears. Frivolous or motivated petitions, ostensibly invoking the public interest detract from the time and attention which courts must devote to genuine causes. This court has a long list of pending cases where the personal liberty of citizens is involved. Those who await trial or the resolution of appeals against orders of conviction have a legitimate expectation of early justice. It is a travesty of justice for the resources of the legal system to be consumed by an avalanche of misdirected petitions purportedly filed in the public interest which, upon due scrutiny, are found to promote a personal, business or political agenda. This has spawned an ::: Downloaded on - 28/02/2020 20:23:49 :::HCHP 7 industry of vested interests in litigation. There is a grave danger that if this state of affairs is allowed to continue, it would seriously denude the efficacy of the judicial system by detracting from the ability of the court to devote its time and resources to cases which legitimately require attention. Worse still, such petitions pose a grave danger to the credibility of the judicial process. This has the .
propensity of endangering the credibility of other institutions and undermining public faith in democracy and the rule of law. This will happen when the agency of the court is utilised to settle extra-judicial scores. Business rivalries have to be resolved in a competitive market for goods and services. Political rivalries have to be resolved in the great hall of democracy when the electorate votes its representatives in and out of office. Courts resolve disputes about legal rights and entitlements. Courts protect the rule of law. There is a PART D danger that the judicial process will be reduced to a charade, if disputes beyond the ken of legal parameters occupy the judicial space."
In (2014) 5 SCC 530, titled Jaipur Shahar Hindu Vikas Samiti versus State of Rajasthan and others, Hon'ble Apex Court emphasized on discouraging unjustified litigants at the initial stage itself as also making the person accountable for misusing the forum and observed that the concept of Public Interest Litigation has been evolved to bring justice to the reach of people who are handicapped by ignorance, indigence, illiteracy and other down trodden people.
Through the Public Interest Litigation, the cause of several people who are not able to approach the Court is espoused. The Courts have to be very cautious and careful while entertaining Public Interest Litigation. The Judiciary should deal with the misuse of Public Interest Litigation with iron hand. The Courts should discourage the unjustified litigants at the initial stage ::: Downloaded on - 28/02/2020 20:23:49 :::HCHP 8 itself and the person who misuses the forum should be made accountable for it.
In (2013) 4 SCC 465, titled Ayaaubkhan
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Noorkhan Pathan versus State of Maharashtra and
others, Hon'ble Apex Court held that a person who raises a grievance must show how he has suffered legal injury.
Generally, a stranger having no right whatsoever to any post or property cannot be permitted to intervene in the affairs of others. In the judgment (supra), Hon'ble Apex Court held as follows:- r "9. It is a settled legal proposition that a stranger cannot be permitted to meddle in any proceeding, unless he satisfies the Authority/Court, that he falls within the category of aggrieved persons. Only a person who has suffered, or suffers from legal injury can challenge the act/action/order etc. in a court of law. A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty on the part of the Authorities. Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that, the relief prayed for must be one to enforce a legal right. Infact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same. (Vide : State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12; Saghir Ahmad & Anr. v. State of ::: Downloaded on - 28/02/2020 20:23:49 :::HCHP 9 U.P., AIR 1954 SC 728; Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal & Ors., AIR 1962 SC 1044; Rajendra Singh v. State of Mdahya Pradesh, AIR 1996 SC 2736; and Tamilnad Mercantile Bank Shareholders Welfare Association (2) v. S.C. Sekar.
10. A "legal right", means an entitlement arising out of .
legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, "person aggrieved" does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must therefore, necessarily be one, whose right or interest has been adversely affected or jeopardised. (Vide: Shanti Kumar R. Canji v. Home Insurance Co. of New York and State of Rajasthan v. Union of India)."
In (2010) 3 SCC 402, titled State of Uttaranchl versus Balwant Singh Chaufal and others, Hon'ble Supreme Court, while dealing with a Public Interest Litigation, assailing the appointment of Advocate General, issued guidelines preserving the purity and sanctity of PIL, reiterating that before entertaining such petitions, the Court must be fully satisfied that the petitioner has genuinely come forward to espouse public cause and the litigation is not guided by any ulterior motive. It was mandated by the Apex Court that a degree of precision and purity in presentation is a sine qua non for a petition filed by a member of the Bar under the label of public interest litigation. It is expected from a member of the Bar to at least carry out the basic research whether the point raised by him is res integra or not. The lawyer who files such a petition ::: Downloaded on - 28/02/2020 20:23:49 :::HCHP 10 cannot plead ignorance. Following directions were issued in respect of Public Interest Litigation:-
"181. We have carefully considered the facts of the present case. We have also examined the law declared by .
this court and other courts in a number of judgments. In order to preserve the purity and sanctity of the PIL, it has become imperative to issue the following directions:
(1) The courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations.
(2) Instead of every individual judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives.
Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the Rules prepared by the High Court is sent to the Secretary General of this court immediately thereafter.
(3) The courts should prima facie verify the credentials of the petitioner before entertaining a P.I.L. (4) The court should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL.
(5) The court should be fully satisfied that substantial public interest is involved before entertaining the petition.
(6) The court should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions.
(7) The courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation.
(8) The court should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations."
::: Downloaded on - 28/02/2020 20:23:49 :::HCHP 11The ratio of law laid down by Hon'ble Apex Court in aforesaid cases is that element of genuine public interest must be involved before the Courts proceed to relax the rule of locus-
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standi. Mere apprehension or guesswork, that too unsubstantiated, cannot be allowed to be made a ground for challenging the vires of a legislation unless & until it can be established that the legislation in question or any provision thereof, is hit by part-III of the Constitution of India.
In view of the above discussion and the ratio of law cited above, it cannot be said that the petitioner has locus-
standi to file and maintain the present writ petition or that he has come forward to espouse a genuine public cause or that impugned legislation is in violation of the Constitution of India or that the State does not have the competence to enact the impugned legislation. The petitioner is neither himself aggrieved nor he has substantiated his grievances against the 'The Himachal Pradesh Micro, Small and Medium Enterprises (Facilitation of Establishment and Operation) Act, 2019', assailed in the writ petition, the avowed object of which is to encourage new investments in the State for generating more employment and promoting entrepreneurship. Therefore, we are of the considered view that present writ petition, being devoid of any merit and without any substance & locus-standi ::: Downloaded on - 28/02/2020 20:23:49 :::HCHP 12 to file & maintain the same, deserves to be dismissed. The same is accordingly dismissed. Pending miscellaneous application(s), if any, shall also stand disposed of.
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(L. Narayana Swamy) Chief Justice (Jyotsna Rewal Dua) February 27, 2020. Judge (Yashwant) r to ::: Downloaded on - 28/02/2020 20:23:49 :::HCHP