Allahabad High Court
Gurmet Singh Soni (Advocate) vs State Of U.P.Thru.Addl.Chief ... on 7 June, 2021
Equivalent citations: AIRONLINE 2021 ALL 1092
Bench: Ramesh Sinha, Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R.
Court No.10
Case :- P.I.L. CIVIL No. - 11520 of 2021
Petitioner :- Gurmet Singh Soni (Advocate)
Respondent :- State Of U.P.Thru.Addl.Chief Secy.Med.Health&Fam.Welfare&Ors
Counsel for Petitioner :- Sanjay Awasthi
*****
Hon'ble Ramesh Sinha,J.
Hon'ble Jaspreet Singh,J.
(Per Ramesh Sinha, J.)
1. Heard Shri Sanjay Awasthi and Shri Saksham Singh, learned counsel for the petitioner and Shri H.P. Srivastava, learned Additional Chief Standing Counsel for the State-respondents, through video conferencing.
2. The petitioner has instituted the instant petition in the shape of Public Interest Litigation claiming the following reliefs:-
"(i) Issue a writ, order or command or direction in nature of certiorari summoning (wrongly mentioned as 'summing' in the petition) the record in original and quashing the tender summary report dated 26.05.2021 through which the opposite party no.3 has been declared successful bidder true copy of which is marked as Annexure no.1 to this writ petition.
(ii) Issue a writ, order or command or direction in nature of mandamus directing Opposite Parties No.2 to not to issue letter of intent in lieu of successful bidder."
3. The submission of the learned counsel for the petitioner is that the petitioner is an Advocate and a public spirited citizen. It has further been submitted that the petitioner is concerned about health delivery system in the State of Uttar Pradesh.
4. The petitioner has approached this Court primarily being aggrieved against the actions of the respondents relating to acceptance of the technical bid of the private-respondent no.3 for the purposes of supply of ambulance services in the State of Uttar Pradesh ignoring the fact that the private-respondent no.3 has been blacklisted in the State of Madhya Pradesh.
5. The submission of the learned counsel for the petitioner is that during the second wave of COVID-19 Pandemic, the heath infrastructure was exposed and was found wanting in many spheres. It has also been submitted that in the State of Uttar Pradesh large number of death took place and it is the need of hour that modern and upgraded medical infrastructure be prepared to face any future untoward pandemic or such medical emergency.
6. The learned counsel for the petitioner has further submitted that the respondent no.2 with a view to strengthen and to provide for Advance Life Support Ambulance Services in all the districts of Uttar Pradesh, invited bids from private sector related to Integrated Referral Transport System to be operated round the clock in the State.
7. It has further been urged that Clause 2.1.17 of the tender bidding document specifically state that a prospective bidder should not have failed to perform any contract or be expelled from any project or contract by any public entity or has abandoned or have refused to perform its obligation in any contract.
8. Learned counsel for the petitioner has further submitted that the private-respondent no.3 was providing ambulance services in the State of Madhya Pradesh under the National Health Mission. The services of the private-respondent were found deficient and for the said reason, the National Heath Mission, State of Madhya Pradesh terminated the services by means of the order dated 22.12.2020, a copy of which has been brought on record as Annexure No.3 with the petition.
9. It has also been submitted that the aforesaid deficiencies and discrepancies in the services rendered by the private-respondent no.3 also attracted attention of the print media. The articles published in a section of print media has been brought on record as Annexures No.4 and 5 respectively with the petition. It has also been alleged that the National Health Mission issued a letter to the private-respondent no.3 dated 25.01.2021 imposing penalty which has also been brought on record as Annexure no.6 with the petition.
10. It is in the aforesaid backdrop, it is submitted that the private-respondent no.3, who has a tainted record, his bid could not have been accepted and the State-respondents by ignoring the aforesaid and having accepted the bid of the private-respondent no.3 on 21.05.2021 in effect is not only violating the term of the tender bid but giving a contract of such an important nature to a tainted company as respondent no.3, would jeopardize the purpose for which the contract is to be issued.
11. The services providing ambulance service is of utmost importance and plays a very critical role in saving lives of the persons and especially in view of the expected third wave of COVID-19, such vital services ought not to be granted to such a company and for the said reason the petitioner seeks quashing of the acceptance of the tender bid of the private-respondent no.3 and further relief has been sought that a direction be issued to the respondent no.2 not to issue a letter of intent to the said successful bidder.
12. The learned Additional Chief Standing Counsel for the State-respondents has raised preliminary objections. Shri H.P. Srivastava, learned Additional Chief Standing Counsel submits that the petitioner has not complied with the provisions of Chapter-XXII Rule 1(3-A) of the Allahabad High Court Rules inasmuch as the petitioner has not disclosed his credentials as required.
13. It has further been submitted that the above petition does not appear to be motivated with any public spirit rather it appears to be goaded by oblique motive and appears to be a proxy petition at the behest by some unsuccessful bidder or a third party.
14. To buttress his aforesaid submissions, the learned Additional Chief Standing Counsel has further drawn the attention of the Court to the documents which have been brought on record as Annexure no.3 and 6 particularly and it has been submitted that there is no way the aforesaid documents could not have been in the possession of the petitioner. It has been submitted that Annexure no.3 is a letter, which has been issued by the Mission Director, National Health Mission, Madhya Pradesh and is addressed to the Project Head of Jigitsa Health Care Limited. Similarly, the document which has been brought on record as Annexure no.6 has also been issued by the Deputy Director, Integrated Referral Transport System, National Health Mission, Madhya Pradesh and is addressed to the Project Head, Jigitsa Health Care Limited.
15. It has been urged by the learned Additional Chief Standing Counsel that the said documents have been issued and addressed to a private party. It is not the case of the petitioner that he has obtained the aforesaid documents under the Right to Information Act nor any averment to the aforesaid effect has been stated in the petition. This clearly indicates that an unsuccessful bidder is attempting to thwart the tendering process by filing the instant petition in the shape of Public Interest Litigation which at the outset reeks of malafides and the pious objective of a Public Interest Litigation is being polluted, accordingly the petition deserves to be dismissed at the threshold.
16. The Court has heard learned counsel for the parties and also perused the record.
17. At the very outset, it will be necessary to notice the object of a Public Interest Litigation. The term Public Interest Litigation has been defined in the Black's Law Dictionary, 6th edition :-
"Public Interest is something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as interests of particular localities, which may be affected by matters in question. Interest shared by citizens generally in affairs of local, State or national Government."
18. In, The Major Law Lexicon by P. Ramanatha Aiyar, the Public Interest Litigation has been defined as "lexically the expression 'PIL' means a legal action initiated in a Court of law for the enforcement of public interest or general interest in which the public or a class of community has pecuniary interest or some interest by which their legal rights or liabilities are affected".
19. The Apex Court in the case of People's Union for Democratic Rights & Ors. v. Union of India & Ors., reported in (1982) 3 SCC 235 has defined the Public Interest Litigation as a cooperative or Collaborative effort on the part of the petitioner, the State or public authority and the judiciary to secure observance of the constitutional or legal rights, benefits and privileges upon poor, downtrodden and vulnerable sections of the society.
20. The Public Interest Litigation is an important jurisdiction which is exercised by the Constitutional Courts be it Supreme Court or the High Court. It has well settled that any authority which is vested or endowed with great powers, such authority must exercise the same with great caution and responsibility.
21. The Apex Court as well as the High Courts having found that large sections of the society because of extreme poverty, ignorance, discrimination and illiteracy have been denied justice for time immemorial as they have no access to justice. Predominantly, to provide access to justice to the poor, deprived, vulnerable, discriminated and marginalized section of the society, the Constitutional Courts encouraged and propelled the public interest litigation. This jurisdiction has been created and carved out by judicial creativity and craftsmanship.
22. The Apex Court in the case of Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India, reported in (1981) 1 SCC 246 in Para-62 has held as under:-
"62. ... Our current processual jurisprudence is not of individualistic Anglo-Indian mould. It is broad-based and people-oriented, and envisions access to justice through ''class actions', ''public interest litigation' and ''representative proceedings'. Indeed, little Indians in large numbers seeking remedies in courts through collective proceedings, instead of being driven to an expensive plurality of litigations, is an affirmation of participative justice in our democracy. We have no hesitation in holding that the narrow concept of ''cause of action' and ''person aggrieved' and individual litigation is becoming obsolescent in some jurisdictions."
(emphasis in original)
23. The Apex Court in the case of Bandhua Mukti Morcha v. Union of India & Ors., reported in 1984 (3) SCC 161 entertained a petition of even an unregistered association espousing the cause of over downtrodden or its members observing that cause of "little Indians" can be established/espoused by any person having no interest in the matter. In the said public interest litigation where certain workmen were living in bondage and inhuman conditions this cause was brought to the notice of the Court. The Apex Court noticed that it was not expected by the Government that it should raise preliminary objection that no fundamental rights of the petitioner or the workmen on whose behalf the petition has been filed, have been infringed.
24. The Apex Court further noted that the public interest litigation is not in the nature of adversarial litigation but it is a challenge and an opportunity to the Government and its officers to make basic human rights meaningful for the deprived and vulnerable sections of the community and to insure them social and economic justice which is the signature tune of the Constitution.
25. It is in the aforesaid backdrop that it would be seen that the concept of "person aggrieved", was diluted in context of public interest litigation which primarily have been divided in three phases. The Apex Court in the case of State of Uttranchal v. Balwant Singh Chaufal & Ors., reported in (2010) 3 SCC 402 in Para-43 of the said report have noticed the three phases of public interest litigation which is being reproduced hereinafter:-
"43. In this judgment, we would like to deal with the origin and development of public interest litigation. We deem it appropriate to broadly divide the public interest litigation in three phases:
- Phase I.--It deals with cases of this Court where directions and orders were passed primarily to protect fundamental rights under Article 21 of the marginalised groups and sections of the society who because of extreme poverty, illiteracy and ignorance cannot approach this Court or the High Courts.
- Phase II.--It deals with the cases relating to protection, preservation of ecology, environment, forests, marine life, wildlife, mountains, rivers, historical monuments, etc. etc.
- Phase III.--It deals with the directions issued by the Courts in maintaining the probity, transparency and integrity in governance."
26. The Apex Court in the case of Tehseen Poonawalla vs. Union of India, reported in (2018) 6 SCC 72 had the occasions to consider what is a public interest litigation as well as it also noticed the manner in which this noble instrument which was devised by the Courts to cater to the Constitutional obligations in the interest of the public is being misused and its repercussion on the system and the relevant portion reads as under:-
"96. Public interest litigation has developed as a powerful tool to espouse the cause of the marginalised and oppressed. Indeed, that was the foundation on which public interest jurisdiction was judicially recognised in situations such as those in Bandhua Mukti Morcha v. Union of India [Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 : 1984 SCC (L&S) 389] . Persons who were unable to seek access to the judicial process by reason of their poverty, ignorance or illiteracy are faced with a deprivation of fundamental human rights. Bonded labour and undertrials (among others) belong to that category. The hallmark of a public interest petition is that a citizen may approach the court to ventilate the grievance of a person or class of persons who are unable to pursue their rights. Public interest litigation has been entertained by relaxing the rules of standing. The essential aspect of the procedure is that the person who moves the court has no personal interest in the outcome of the proceedings apart from a general standing as a citizen before the court. This ensures the objectivity of those who pursue the grievance before the court. Environmental jurisprudence has developed around the rubric of public interest petitions. Environmental concerns affect the present generation and the future. Principles such as the polluter pays and the public trust doctrine have evolved during the adjudication of public interest petitions. Over time, public interest litigation has become a powerful instrument to preserve the rule of law and to ensure the accountability of and transparency within structures of governance. Public interest litigation is in that sense a valuable instrument and jurisdictional tool to promote structural due process.
97. Yet over time, it has been realised that this jurisdiction is capable of being and has been brazenly misutilised by persons with a personal agenda. At one end of that spectrum are those cases where public interest petitions are motivated by a desire to seek publicity. At the other end of the spectrum are petitions which have been instituted at the behest of business or political rivals to settle scores behind the facade of a public interest litigation. The true face of the litigant behind the façade is seldom unravelled. These concerns are indeed reflected in the judgment of this Court in State of Uttaranchal v. Balwant Singh Chaufal [State of Uttaranchal v. Balwant Singh Chaufal, (2010) 3 SCC 402 : (2010) 2 SCC (Cri) 81 : (2010) 1 SCC (L&S) 807] . Underlining these concerns, this Court held thus : (SCC p. 453, para 143) "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 bona fide public interest litigation must be encouraged whereas frivolous public interest litigation should be discouraged. In our considered opinion, we have to 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."
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 litigations 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 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 danger that the judicial process will be reduced to a charade, if disputes beyond the ken of legal parameters occupy the judicial space."
27. In view of the law noticed hereinabove and drawing inspiration therefrom, if we examine the averments made in the instant petition as well as the relief claimed, it would be seen that at best it would fall within the third phase of public interest litigation as indicated by the Apex Court in Balwant Singh Chaufal (supra).
28. Considering the fact that the instant petition has been preferred as public interest litigation by a practicing Advocate, it will be necessary to note whether the petitioner has scrupulously complied with the provisions of Chapter-XXII Rule 1(3-A) of the Allahabad High Court Rules, 1952 which has been amended and incorporated w.e.f. 01.05.2010. The relevant Rule (3-A) reads as under:-
''(3-A) In addition to satisfying the requirements of the other rules in this chapter, the petitioner seeking to file a Public Interest Litigation, should precisely and specifically state, in the affidavit to be sworn by him giving his credentials, the public cause he is seeking to espouse; that he has no personal or private interest in the matter; that there is no authoritative pronouncement by the Supreme Court or High Court on the question raised; and that the result of the litigation will not lead to any undue gain to himself or anyone associated with him, or any undue loss to any person, body of persons or the State.''
29. A plain reading of the aforesaid rule would indicate that amongst other disclosure, any person filing a writ petition in shape of Public Interest Litigation must precisely and specifically state his credentials and the public cause he is seeking to espouse. In compliance of the aforesaid rule, the petitioner ought to have stated his credentials clearly.
30. The word "credential" has a specific connotation and means the quality and experience of a person that makes him suitable for doing a particular job. This aspect of the matter has already been noticed by a Coordinate Bench of this Court in the case of Narendra Kumar Yadav v. State of U.P., reported in 2020 (11) ADJ 637 (LB) (DB) and the relevant portion thereof is reproduced hereinafter:-
"7. The dictionary meaning of the word 'credentials' is the qualities and the experience of a person that make him suitable for doing a particular job. The Oxford English-English-Hindi Dictionary, 2nd Edition, explains credentials as the quality which makes a person perfect for the job or a document that is a proof that he has the training and education necessary to prove that he is a person qualified for doing the particular job.
8. The petitioner herein claims to be a Social Worker, but in order to substantiate the nature of the social work he is doing or seeks to do, he has not disclosed any experience that makes him suitable or perfect for doing the said job and no document in proof has been furnished."
31. The word 'credential' has been defined in Black's Law Dictionary, 8th Edition: "1. A document or other evidence that proves one's authority or expertise. 2. A testimonial that a person is entitled to credit or to the right to exercise official power. 3. The letter of credence given to an ambassador or other representative of a foreign country. 4. Parliamentary law. Evidence of a delegate's entitlement to be seated and vote in a convention or other deliberative assembly." However, for the present purposes the meaning at S.No.1 above is the most relevant and apt for the purposes of construing Rule 1 (3-A) of Chapter-XXII of Allahabad High Court Rules.
32. Applying the aforesaid principle as well as definition of word "credential" to the instant case, it would reveal that the petitioner in Paragraph-2 has stated that he is a public spirited person and he has no personal and private interest in this public interest litigation. In Paragraph-4, he has made an averment which reads as under:-
"The petitioner is a practicing lawyer of this Hon'ble Court and is very well aware about his duties and rights towards the society and is very much concerned about the prevailing situation of pandemic Covid-19 as many lives have been lost due to pandemic. And the petitioner is concerned about health delivery system in State of Uttar Pradesh."
33. Apart from the aforesaid paragraph, the instant petition does not make any averment regarding the credential of the petitioner. It is nowhere indicated that what public or social work has been done by the petitioner. Moreover, the petitioner being a lawyer and having himself stated that he is well aware of his duties and responsibility towards the society ought to have been more candid and ought to have scrupulously complied with the aforesaid Rule indicating his credential clearly. Apparently, this Court finds that insofar as the question of credential is concerned, there is nothing in the petition indicating the same.
34. Thus, this Court has no hesitation to note that the petitioner has not disclosed any credential. Merely because he is a lawyer does not in any manner grant him any privilege for his petition to be treated differently. Even otherwise, there is nothing on record to indicate that the petitioner has preferred the instant petition espousing the cause of any member of a disadvantageous section of the society or any person, who is downtrodden or for certain disabled person, who is unable to approach the Court or that the matter in question relates to infringement or denial of any basic human right to such marginalized section of the society which enables the petitioner to espouse their cause.
35. On the contrary from the averments in the petition, it indicates that the petitioner is challenging the grant of contract in favour of the private-respondent no.6. Learned counsel for the petitioner also could not reply as to how he is in possession of the documents particularly Annexure nos.3 and 6 which have been annexed with the petition.
36. Learned counsel for the petitioner could not dispute the fact that the said documents have not been obtained by the petitioner under the Right to Information Act.
37. At this stage, this Court is reminded of the observations made by the Apex Court in the case of Balwant Singh Chaufal & Ors. (supra) wherein the Apex Court has dealt with the issues of abuse of public interest litigation and the remedial measures by which its misuse can be prevented or curbed and the relevant portion thereof reads 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 bona fide public interest litigation must be encouraged whereas frivolous public interest litigation should be discouraged. In our considered opinion, we have to 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 AIR 2002 SC 350, 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 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.
170. In Dattaraj Nathuji Thaware (supra) this court again cautioned and observed that the court must look into the petition carefully and ensure that there is genuine public interest involved in the case before invoking its jurisdiction. The court should be careful that its jurisdiction is not abused by a person or a body of persons to further his or their personal causes or to satisfy his or their personal grudge or grudges. The stream of justice should not be allowed to be polluted by unscrupulous litigants.
171. In Neetu (supra) this court observed that under the guise of redressing a public grievance the public interest litigation should not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature.
172. In M/s. Holicow Pictures Pvt. Ltd. (supra) this court observed that the judges who exercise the jurisdiction should be extremely careful to see that behind the beautiful veil of PIL, an ugly private malice, vested interest and/or publicity- seeking is not lurking. The court should ensure that there is no abuse of the process of the court.
173. When we revert to the facts of the present then the conclusion is obvious that this case is a classic case of the abuse of the process of the court. In the present case a practicing lawyer has deliberately abused the process of the court. In that process, he has made a serious attempt to demean an important constitutional office. The petitioner ought to have known that the controversy which he has been raising in the petition stands concluded half a century ago and by a Division Bench judgment of Nagpur High Court in the case of Karkare (supra) the said case was approved by a Constitution Bench of this court. The controversy involved in this case is no longer res integra. It is unfortunate that even after such a clear enunciation of the legal position, a large number of similar petitions have been filed from time to time in various High Courts. The petitioner ought to have refrained from filing such a frivolous petition.
174. 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 cannot plead ignorance."
38. From the perusal of the averments made in the writ petition all what is brought to the fore is that the petitioner is raising an issue regarding award of a contract to the private-respondent. It cannot be discounted that the petitioner may have been set up by the rival group since no credential has been mentioned nor it is a petition which has been filed on behalf of any marginalized section of the society. Any issue which may be in the realm of a private dispute between two waring groups cannot be entertained as a public interest litigation.
39. For the foregoing reasons, this Court is of the considered view that there is no element of public interest involved. Accordingly, the petition cannot be entertained as a public interest litigation and is dismissed. However, in the circumstances, this Court refrains from imposing any costs.
40. That party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by it alongwith a self attested identity proof of the said person (s) (preferably Aadhar Card) mentioning the mobile number (s) to which the said Aadhar Card is linked.
41. The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 07.06.2021 Rakesh/-