Hon'ble Dr. Satish Chandra, J.
(Delivered by Hon'ble Dharam Veer Sharma, J) The instant writ petition designed and styled as Public Interest Litigation has been filed by the petitioner Ajai Kumar Singh, a Practicing Advocate. It is directed against the auction of certain commercial plots situate at Vibhuti Khand, Gomti Nagar Scheme of Lucknow Development Authority. The petitioner has prayed for quashing of the allotment as held in pursuance of the auction notices. It is further prayed that a writ in the nature of mandamus be issued commanding the respondents to stop constructions on the allotted lands and a direction may be issued to the C.B.I. to inquire into the matter and submit its report to this Court.
The petitioner has come with a case that as a practising Advocate he has opportunity of interacting with people belonging to different walk of life and incidentally he met some prospective bidders of the land in question who have filtered out certain informations which reveals deliberate activities of the respondents with an ulterior motive to fill up there wallets resulting in heavy losses to the public exchequer. The authorities are functioning in utter violation of the provisions and spirit of the Constitution. Authorities had been charged with corruption.
It is alleged that two tender notices were published on 14.06.2005 and 16.06.2005, annexures 1 and 2 in a daily Hindi Newspaper for auction of commercial plots in Vibhuti Khand of the Gomti Nagar Scheme for Group Housing and Shops. On a bare reading of the tender notices it transpired that the rate of land per sq.mt. is nearly 3 times lesser than the rate of fixed for the land in the vicinity. The reserved rate of land is fixed for Rs.6000 per sq.mt. whereas the rate in the open market is more than Rs.15,000 per sq.mt. The same was done to benefit certain builders. It is alleged that in the vicinity within one kilometer distance at Viraj Khand the property was auctioned on the quoted price of Rs.17,000/- per sq.mt and in the same way in Vastu Khand some commercial plots were auctioned at the rate of Rs.16000 to 30,000 per sq.mt. Respondents created an opportunity to extract heavy illegal gratification by not providing in the auction notices Floor Area Ratio and ground coverage. It is always provided in every auction notice in terms of the byelaws of the Development Authority.
After the auction of the land in question to benefit their favorite builders respondents have managed to influence the Government to reduce the stamp duty payable on the registration of the land for personal gains.
Lucknow Mahayojna 2021 framed by the Government provides that the land in question may be used for commercial category but in the instant case in utter disregard to the specific provision the land has been auctioned to the builders for group housing.
The respondents/the officers of Lucknow Development Authority are indulging in corruption in furtherance of the same a scheme of Gomti Nagar Phase II was advertised. The advertisement was not made in major newspapers of circulation. The dates for submission of tender were fixed for 12.1.2006 to 17.1.2006 while 14.1.2006 and 15.1.2006 were holidays. It is further averred that in thecreation of Lohia Park, Gomti Nagar a sum of Rs.50 crores have already been spent by the Lucknow Development Authority and the same has been counter signed by the Secretary of the Lucknow Development Authority but the then Secretary refused to sign the same.
It is further urged that the petitioner incidentally met some prospective bidders of the land in question who have filtered out information of unwarranted conditions provided in the auction notice. Accordingly the instant petition has been filed to bring these facts to the notice of the court. Thus the petitioner's case is that the reserve price of the plots in question was kept 1/3rd of market rate of the land with a view to extend benefit to certain bidders and further LDA fixed certain arbitrary conditions like quantum of solvency and earnest money for different sizes of the plots. The Floor Area Ratio has been given to the builders much more than the prescribed Floor Area Ratio. The allotment of plot to the builders of the choice is violative of Article 14 of the Constitution. The auction was not fair, accordingly petitioner has filed the Public Interest Litigation alleging himself to be the public spirited person.
Respondent nos. 2 to 6 have contested the petition. They have filed joint counter affidavit and denied allegations made in the petition in toto. The case of respondents on factual aspect is as under;
The land in question is a land earmarked for commercial activity as per lay out plan for Vibhuti Khand, Gomti Nagar Scheme, Lucknow. A tender notice dated 07.11.2004 was published in the daily newspapers The Times of India and Dainik Jagran for the land in question as commercial land with reserve price of Rs.6000 of which the tender submission date was 19.11.2004. No tender were received till the time and date of the submission of the tender. However, later on two offers without earnest money were received with conditions and the same were not in the interest of the Lucknow Development Authority resulting which the same were not accepted by the competent authority. For the land in question again tender notice were published in the daily newspaper Dainik Jagran, Amar Ujala, Hindustan Times and Times of India with date of submission of tender as 07.02.2005 and date of auction as 08.02.2005 as commercial land. No tenders were received till the last date of submission. For the land in question against tender notice dated 16.02.2005 was published in the daily newspapers Times of India, Dainik Jagran and Hindustan Times with last date of tender submission as 28.02.2005 and tender auction as 01.03.2005 as commercial land but no tenders were received till the last date. Thus, at last the proposal was placed before the Board of the Lucknow Development Authority on 09.05.2005 to the effect that on the commercial land in question, only commercial activity may be permitted on ground floor and for the remaining floors commercial activity and Group Housing may be permitted if need be on the same Floor Area Ratio, coverage and set back which is for commercial land.
The Board of Lucknow Development Authority accepted the proposal with the conditions that the price of the land in question would remain which is for commercial land. The decision of the Board of Lucknow Development Authority was sent to the State Government for needful. For compliance of the Board of Lucknow Development Authority decision dated 09.05.2005, a committee was constituted to lay down the detailed terms and conditions for advertising the tender notice and auction. The committee submitted the report and the same was approved by the competent authority. Accordingly the tender notice dated 29.05.2005, amended tender dated 14.6.2005 which relates to 11 plots in Vibhuti Khand, Gomti Nagar, Lucknow was published in daily newspapers for submission of tenders on 21.06.2005 and auction to be held on 22.06.2005. On 21.06.2005 tenders were submitted in response to the tender notice dated 29.05.2005, amended tender notice dated 14.06.2005 and tender notice dated 16.06.2005 which relates to 11 plots in Vibhuti Khand, Gomti Nagar, Lucknow. Of 35 tenders, technical bids were open on 21.06.2005 and after scrutiny by a Committee comprising of Finance Controller, Lucknow Development Authority; Chief Town Planner, Lucknow Development Authority, Joint Secretary, Lucknow Development Authority, Executive System, Lucknow Development Authority and Executive Engineer, Lucknow Development Authority, 02 tenders of M/s Shaurya Towers Pvt Limited and M/s Brindavan Gulmohan Enterprises were recommended to be rejected and the remaining 33 tenders were recommended to be accepted.
The aforesaid recommendations was accepted by the Vice Chairman,Lucknow Development Authority. The remaining 33 tenders whose technical bid was in order were invited for open auction on 22.06.2005. No protest or representation against the tender notice dated 29.05.2005, amended tender notice dated 14.06.2005 and tender notice dated 16.06.2005 was received by the answering respondents upto 22.06.2005 and even with regard to the scrutiny of the technical bid no protest or representation was received by Lucknow Development Authority from M/s Shaurya Towers Pvt Limited and M/s Brindavan Gulmohan Enterprises. An open auction was held on 22.06.2005 amongst the qualified contestants with respect to each plot keeping in view the reserved price of Rs.6000 per sq.mt.indicated in the tender notice.
The highest bidder with respect to each plot was recommended for acceptance by the aforesaid committee and at last accepted by the Vice Chairman,Lucknow Development Authority. The building plan for 09 plots out of 11 plots also been approved and the construction is in progress.
The reserve price has to be fixed according to the actual status of the land in question in accordance with the Govenrment Order dated 03.06.2005 wherein the rate fixed for commercial land is held to be twice of the residential rate. The reserve price for residential land in Gomti Nagar Scheme Phase I including Vibhuti Khand upto 30.11.2003 was Rs.2500 per sq.mt. and the same was revised to Rs.3000 per sq.mt. with effect from 01.12.2003 through order dated 29.11.2003.
Thus the rate for commercial land with effect from 01.12.2003 was Rs.6000.00 per sq.mt. i.e. double the reserve price for residential land. The reserve price of Gomti Nagar Phase-I including Vibhuti Khand was further revised to Rs.4000/- per sq.mt. with effect from 01.04.2006 through order dated 29.03.2006. The reserve price was further revised to Rs.4400/- per sq.mt. for Gomti Nagar Phase I including Vibhuti Khand with effect from 01.09.2007 through order dated 03.09.2007. Thus the reserve price of the Lucknow Development Authority for Gomti Nagar Scheme Phase I including Vibhuti Khand even on the date is Rs.4400 per sq.mt for residential land and double the same for commercial land i.e. Rs.8800 per sq.mt. The price of Rs.15000/- per sq.mt indicated by the petitioner in the paragraph under reply for Vibhuti Khand, Gomti Nagar, Scheme, Lucknow is imaginary resulting which the consequential calculation made by the petitioner in the paragraph under reply is also imaginary. The qualification for bidders was fixed in the tender notice dated 29.05.2005, amended tender notice dated 14.6.2005 and tender notice dated 16.6.2005 on the basis of the recommendation of the committee which was accepted by the Vice Chairman,Lucknow Development Authority. The Committee made the recommendation after studying/analyzing the similar conditions imposed by Greater NOIDA Industrial Development Authority.
The condition of solvency and turnover is fixed with regard to commercial plots for construction of commercial and residential and not for those plots for which construction of only commercial or only Group Housing is permitted. If no restriction of solvency, turnover and earnest money would have been placed in the tender notice dated 29.05.2005, amended tender notice dated 14.06.2005 and tender notice dated 16.06.2005, then the object of making development through developers upon the land in question could have never been achieved if the persons having low solvency and turnover would have been permitted to take part in the bid and simultaneously the money in phased manner could not have been realized by the Lucknow Development Authority as well as the interest of the public, who are prospective buyers, would have been adversely affected.
Commercial plot of Viraj Khand, Gomti Nagar Scheme, Lucknow and Vastu Khand, Gomti Nagar Scheme, Lucknow referred in the paragraph under reply can not be compared with the commercial plots in Vibhuti Khand, Gomti Nagar Scheme, Lucknow on account of the location size of plots and activities permitted. The condition of solvency and turnover is fixed with regard to commercial plots for construction of commercial and residential and not for those plots for which construction of only commercial or only Group Housing is permitted. In Viraj Khand Gomti Nagar scheme, Lucknow and Vastu Khand, Gomti Nagar scheme, Lucknow, several commercial plots were auctioned during the relevant time of which the petitioner is citing example and the highest bid for the most of the said commercial plots was almost at par with the highest bid of Vibhuti Khand, Gomti Nagar Scheme, Lucknow.
All the terms and conditions are not published in the tender notice. The details terms and conditions are indicated in the tender form which can be purchased from the office of the Lucknow Development Authority. The Floor Area Ratio and Ground Coverage is 2.0 and 30% respectively in the case of commercial plots in commercial area as per Lucknow Development Authority Building Byelaws, 2000. The tender notice of Jaipur Development Authority can not be compared with the tender notice of the Lucknow Development Authority.
The petitioner with regard to floor area ratio has referred to Chapter 3 Part-3 of the Lucknow Development Authority building byelaws, 2000 meant for commercial area.
No reduction in stamp duty has been granted by the State Government where as on the contrary 10% of the stamp duty has been paid by the allottees while executing the registered agreement. Thus no relaxation has been given to the allottees.
As per Model Zoning Regulations issued by State Government, the provisions of Group Housing in commercial area on conditions is permitted and accordingly the Board of the Lucknow Development Authority took a decision in its meeting dated 09.05.2005 and the said decision was sent to the State Government for doing the needful.
There is no loss of public exchequer of the Lucknow Development Authority and the amount indicated in the paragraph under reply is imaginary. There was no reduction relaxation of payment of stamp duty in the case of 11 plots in question. The Floor Area Ratio is strictly in accordance with the Lucknow Development Authority Building Byelaws, 2000 meant for commercial land in commercial area and not otherwise. The cost of the 11 plots in question is more than the reserve price fixed in terms of the decision.
Petitioner has filed the present writ petition before this Court as a proxy petition on behalf of the prospective bidders who had met the petitioner and had given baseless information. The prospective bidders can not be said to be belonging to unrepresented group as they could have very well preferred the representation or complaint if any to the Respondents in the Writ Petition and later on could have filed a Writ Petition if necessary before Court. The present writ petition is not liable to be entertained as Public Interest Litigation and the same is liable to be dismissed with cost payable to the answering respondents.
The petitioner sought time for filing rejoinder affidavit. Several opportunities were given to the petitioner to file the same. But he has failed to file any rejoinder affidavit. Thus the version of respondents no. 2 to 6 in the counter affidavit has not been contradicted by the petitioner.
The parties were also given opportunity to file written submissions, accordingly written submissions on behalf of Lucknow Development Authority have been made. After going through the submissions, it transpires that on issue involved in the writ petition, the learned counsel for the L.D.A. has contended that the instant petition is not maintainable. He has made submissions to the extent that the instant writ petition does not fall within the parameters of bonafide public interest litigation and the petitioner cannot be treated as an aggrieved person. Contentions raised are as under:-
A. Whether the petitioner Sri Ajai Kumar Singh has locus to file the instant Public Interest Litigation?
B. The writ petition involving the question of settlement of Commercial Plots can not be termed to be a Public Interest Litigation and when it is not a Public Interest Litigation then the petitioner can not be said to be aggrieved person.
C. The Tenor of the writ petition goes to show that it is a proxy petition filed with malicious and capricious intention.
D. The writ petition is liable to be dismissed on the ground of non-joinder of necessary party.
E. The conduct of the petitioner during the proceedings of the instant writ petition, as is evident from the order sheet, has made him liable to pay exemplary cost by filing a malicious petitions and for abusing the process of the Court.
F. On merits the petitioner has failed to substantiate the allegations levelled by him.
The Lucknow Development Authority submits that the petitioner is busy body and has tried to ventilate the cause of certain prospective bidders. Paragraph 19 of the writ petition is relevant, which is as follows:-
"That the petitioner is a practicing advocate and as such he has opportunities of interacting with people belonging to different walks of life and incidentally he has met some prospective bidders of the land in question who have been filtered out by imposing certain unwarranted conditions provided in the auction notice who through due diligence provided to the petitioner all the facts and figures given herein above."
It is further urged that the writ petition filed by the petitioner in the nature of Public Interest litigation is tainted with improper motives and is intended to thwart the Lucknow Development Authority from undertaking various developmental activities for planned development of the city of the Lucknow in accordance with the provisions of Master Plan-2021 and U.P. Urban Planning and Development Act, 1973. Petitioner has abused the process of this Hon'ble Court for oblique considerations. Neither any violation of statutory provision nor violation of any fundamental rights has been prima facie shown by the writ petitioner. Hon'ble Supreme Court in the case of BALCO employees' Union (Regd.) Vs. Union of India, (2002) 2 SCC 333, at page 382 was pleased to hold as under:-
"92. In a democracy it is the prerogative of each elected Government to follow it's own policy. Often a change in Government may result in the shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered with by the Court.
97. Judicial interference by way of PIL is available if there is injury to public because of dereliction of Constitutional or statutory obligations on the part of the government. Here it is not so and in the sphere of economic policy or reform the Court is not the appropriate forum. Every matter of public interest or curiosity cannot be the subject matter of PIL. Courts are not intended to and nor should they conduct the administration of the country. Courts will interfere only if there is a clear violation of Constitutional or statutory provisions or non-compliance by the State with it's Constitutional or statutory duties. None of these contingencies arise in this present case."
Further in the case of Villianur Iyarkkai Padukappu Maiyam Vs. Union of India, (2009) 7 SCC 561, Hon'ble Supreme Court was pleased to observe as under:-
"168. In a democracy, it is the prerogative of each elected Government to follow its own policy. Often a change in Government may result in the shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or malafide, a decision bringing about change cannot per se be interfered with by the court.
169. It is neither within the domain of the courts nor the scope of judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are the courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical. Wisdom and advisability of economic policy are ordinarily not amenable to judicial review. In matters relating to economic issues the Government has, while taking a decision, right to "trial and error" as long as both trial and error are bona fide and within the limits of the authority. For testing the correctness of a policy, the appropriate forum is Parliament and not the courts.
170. Normally, there is always a presumption that the Governmental action is reasonable and in public interest and it is for the party challenging its validity to show that it is wanting in reasonableness or is not informed with public interest. This burden is a heavy one and it has to be discharged to the satisfaction of the court by proper and adequate material. The court cannot lightly assume that the action taken by the Government is unreasonable or against public interest because there are large number of considerations, which necessarily weigh with the Government in taking an action.
The petitioner has pretended to act in the name of pro bono publico, though he had no interest of the public or even of his own to protect. Allegations made in the Writ Petition are baseless and unfounded. They are motivated for oblique considerations. Hon'ble Supreme Court in the case of Ashok Kumar Pandey Vs. State of W.B., (2004) 3 SCC 349, was pleased to hold as under:-
"14. The Court has to be satisfied about (a) the credentials of the applicant;
(b) the prima facie correctness or nature of information given by him; (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike balance between two conflicting interests; (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature. The Court has to act ruthlessly while dealing with imposters and busy bodies or meddlesome interlopers impersonating as public-spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect.
Further in the case of Dattaraj Nathuji Thaware Vs. State of Maharashtra, 2005(1) SCC 590 at para 12, Hon'ble Supreme Court was pleased to observe as under:-
"12. ........The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. As indicated above, Court must be careful to see that a body of persons or member of public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique considerations. The Court must not allow its process to be abused for oblique considerations by masked phantoms who monitor at times from behind. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives, and try to bargain for a good deal as well to enrich themselves. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busy bodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs."
It is further contended that Hon'ble Supreme Court vide its judgment and Order dated 18.01.2010 in Civil Appeal No. 1134-1135 of 2002, State of Uttaranchal Vs. Balwant Singh Chaufal & ors reported in 2010 AIR SCW 1029 considered the evolution of the Public Interest Litigation in India and expressed its concern regarding the abuse of the process of Courts through PIL. Being concerned with the abuse the Hon'ble Supreme Court issued directions to preserve the purity and sanctity of PIL as under:-
"198. 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.
199. Copies of this judgment be sent to the Registrar Generals of all the High Courts within one week."
B- The writ petition involving the question of settlement of Commercial Plots can not be termed to be a Public Interest Litigation and when it is not a Public Interest Litigation than the petitioner can not be said to be aggrieved person.
Thus, in this writ petition according to L.D.A. the issue involved in the present case hinges around the settlement of the Commercial Plots. The commercial plots had been sold through open auction. As is evident from paragraph 19 of the writ petition, no cause of action has accrued to the petitioner as certain bidders, who could not be successful in the tender have shifted their grievance on the petitioner. Thus, it is a proxy petition. Further more it is submitted that Courts of law can not examine the wisdom of the authorities so far as prescribing certain conditions in the settlement of the Commercial Plots. The conditions are put to ensure the achievement of the object and therefore, the solvency criteria and prescription of earnest money were put in the tender notice so that the capable bidders may participate in the auction. This was done with a view to ensure hundred percent achievement of the development work for which the plots in question were sold. By leveling bald allegations without substantiating the same, the petitioner has abused the process of the Court. There was no occasion to him to file a Public Interest Litigation. He is not an aggrieved person, therefore, the writ petition is not maintainable.
D- The writ petition is liable to be dismissed on the ground of non-joinder of necessary party.
In respect of this issue the submission is that after finalization of the tender process third party rights have been created and thus whosoever has been alloted the plots in question has become necessary and proper party but the petitioner has not impleaded as any of the successful party in this writ petition. On this score alone writ petition deserves to be dismissed.
E- The conduct of the petitioner during the proceedings of the instant writ petition, as is evident from the order sheet, has made him liable to pay exemplary cost by filing a malicious petitions and for abusing the process of the Court.
The order sheet itself throws sufficient light on the conduct of the petitioner after filing of the writ petition on one pretext or the other, the petitioner or his counsel sought repeated adjournment. Such conduct needs to be deprecated by this Hon'ble Court as firstly the petitioner though claims himself to be a public spirited person fighting for the public cause has sought repeated adjournments and secondly he being a practicing lawyer has committed misconduct by using the instant writ petition to be a tool to abuse the process of the Court. This act of the petitioner has made him liable to pay heavy cost.
F- On merits the petitioner has failed to substantiate the allegations levelled by him.
The submission of the Lucknow Development Authority is that the commercial plots have been settled in a just and fair manner and as per the prescribed norms and the petition lacks merits and is liable to be dismissed.
We agree with the contention of the Lucknow Development Authority, yet another aspects have also to be seen.
We find that the instant petition as 'Public Interest Litigation' is not maintainable as per norms and parameters set for maintaining a 'Public Interest Litigation' by the Hon'ble Supreme Court. The petitioner does not have locus to file the same even as a Public Interest Litigation for the following reasons:-
1. While making exception to the general law of locus standi in a Public Interest Litigation, the Hon'ble Supreme Court has laid down certain norms when such a petition can be entertained without the petitioner being personally affected and to what limit can requirement of locus be expanded and has also mandated that when it should not be maintainable.
2. Public Interest Litigation can only be filed for espousing the cause of others when and only when the persons aggrieved are unable to approach the Court directly by reasons of object poverty or lack of means or being socially disadvantaged and backward. Thus those who are unable to knock the door of the Court themselves for lack of sources and means can file Public Interest Litigation, but in this case the aggrieved person i.e. the rival candidates and their respective political parties as well as the electors of Raebareli, do not fall within the above ambit. In view of the decision of the Hon'ble Apex Court in Gauruvayoor Devaswom Managing Committee and another Vs. C.K. Rajan and others, (2003) 7 SCC, 546, the petition as Public Interest Litigation is not maintainable. The relevant paragraphs 41,46,50,61 and 67 are quoted as below:-
41. The courts exercising their power of judicial review found to their dismay that poorest of the poor, the depraved (sic), the illiterate, the urban and rural unorganized labour sector, women, children, those handicapped by "ignorance, indigence and illiteracy" and other downtrodden persons have either no access to justice or had been denied justice. A new branch of proceedings known as "social action litigation" or "public interest litigation" was evolved with a view to render complete justice to the aforementioned classes of persons. It expanded its wings in course of time. The courts in pro bono publico granted relief to inmates of prisons, provided legal aid, directed speedy trials, maintenance of human dignity and covered several other areas. Representative actions, pro bono publico and test litigations were entertained in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to bypass real issues on merits by suspect reliance on peripheral procedural shortcomings. (see Mumbai Kamgar Sabha V. Abdulbhai Faizullabhai, (1976) 3 SCC 832.)
46. But with the passage of time, things started taking different shapes. The process was sometimes abused. Proceedings were initiated in the name of public interest litigation for ventilating private disputes. Some petitions were publicity-oriented.
50. The principles evolved by this Court in this behalf may be suitably summarized as under:
(i) The Court in exercise of powers under Article 32 and Article 226 of the Constitution of India can entertain a petition filed by any interested person in the welfare of the people who is in a disadvantaged position and, thus, not in a position to knock the doors of the Court.
The Court is constitutionally bound to protect the fundamental rights of such disadvantaged people so as to direct the State to fulfil its constitutional promises. (See S.P.Gupta V. Union of India, 1981 Supp SCC 87, People's Union for Democratic Rights V. Union of India, (1982) 2 SCC 494, Bandhua Mukti Morcha V. Union of India and Janata Dal V. H.S.Chowdhary, (1992) 4 SCC 305.)
(ii) Issues of public importance, enforcement of fundamental rights of a large number of the public vis-à-vis the constitutional duties and functions of the State, if raised, the Court treats a letter or a telegram as a public interest litigation upon relaxing procedural laws as also the law relating to pleadings. (See Charles Sobraj V. Supdt., Central Jail, 1978, 4 SCC 104 and Hussainara Khatoon (I) V. Home Secy., State of Bihar, 1980, 1 SCC 81.)
(iii) Whenever injustice is meted out to a large number of people, the Court will not hesitate in stepping in. Articles 14 and 21 of the Constitution of India as well as the International Conventions on Human Rights provide for reasonable and fair trial.
In Maneka Sanjay Gandhi V. Rani Jethmalani, 1979, 4 SCC 167 it was held: (SCC p.169, para 2) "2. Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperiling, from the point of view of public justice and its attendant environment, is necessitous if the court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner's grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances." (See also Dwarka Prasad Agarwal V. AB.D.Agarwal, (2003) 6 SCC 230)
(iv) The common rule of locus standi is relaxed so as to enable the Court to look into the grievances complained on behalf of the poor, the depraved (sic), the illiterate and the disabled who cannot vindicate the legal wrong or legal injury caused to them for any violation of any constitutional or legal right. [see Fertilizer Corpn. Kamgar Union (Regd.) V. Union of India, 198, 1 SCC 568, S.P. Gupta, People's Union for Democratic Rights, D.C.Wadhwa(Dr) V. State of Bihar, 1987, 1 SCC 378 and BALCO Employees' Union (Regd.) V. Union of India, (2002) 2 SCC 333].
(v) When the Court is prima facie satisfied aqbout variation of any constitutional right of a group of people belonging to the disadvantaged category, it may not allow the State or the Government from raising the question as to the maintainability of the petition. (See Bandhua Mukti Morcha).
(vi) Although procedural laws apply to PIL cases but the question as to whether the principles of res judicata or principles analogous thereto would apply depends on the nature of the petition as also facts and circumstances of the case. [See Rural Litigation and Entitlement Kendra V. State of U.P, 1989 Supp (1) SCC 504 and Forward Construction Co. V. Prabhat Mandal (Regd.), (1986) 1 SCC 100].
(vii) The dispute between two warring groups purely in the realm of private law would not be allowed to be agitated as a public interest litigation. (See Ramsharan Autyanuprasi V. Union of India, 1989 Supp (1) SCC 251.
(viii) However, in an appropriate case, although the petitioner might have moved a court in his private interest and for redressal of personal grievances, the Court in furtherance of the public interest may treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice. (see Shivajirao Nilangekar Patil V. Dr. Mahesh Madhav Gosavi, (1987) 1 SCC 227.
(ix) The Court in special situations may appoint a Commission, or other bodies for the purpose of investigating into the allegations and finding out facts. It may also direct management of a public institution taken over by such Committee. (See Bandhua Mukti Morcha, Rakesh Chandra Narayan V. State of Bihar, 1989 Supp(1) SCC 644 and A.P. Pollution Control Board V. Prof. M.V.Nayudu, (1999) 2 SCC 718.) In Sachidanand Pandey V. sTate of W.B., (1987) 2 SCC, 295 this Court held: (SCC pp.334-35, para 61) "61. It is only when courts are apprised of gross violation of fundamental rights by a group or a class action on when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the courts, especially this Court, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the underdog and the neglected. I will be second to one in extending help when such help is required. But this does not mean that the doors of this Court are always open for anyone to walk in. It is necessary to have some self-imposed restraint on public interest litigants."
In Janata Dal V. H.S.Chowdhary, (1992) 4 SCC 305 this Court opined: (SCC p.348, para 109) "109. It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the court to wipe out the tears of poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly, a vexatious petition under the colour of PIL brought before the court for vindicating any personal grievance, deserves rejection at the threshold."
The Court will not ordinarily transgress into a policy. It shall also take utmost care not to transgress its jurisdiction while purporting to protect the rights of the people from being violated.
In Narmada Bachao Andolan V. Union of India, (2000) 10 SCC 664 it was held: (SCC pp.762-63, paras 229 & 232) "229. It is now well settled that the courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision. Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy-making process and the courts are ill-equipped to adjudicate on a policy decision so undertaken. The court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people's fundamental rights are not transgressed upon except to the extent permissible under the Constitution. Even then any challenge to such a policy decision must be before the execution of the project is undertaken. Any delay in the execution of the project means overrun in costs and the decision to undertake a project, if challenged after its execution has commenced, should be thrown out at the very threshold on the ground of laches if the petitioner had the knowledge of such a decision and could have approached the court at that time. Just because a petition is termed as a PIL does not mean that ordinary principles applicable to litigation will not apply. Laches is one of them.
232. While protecting the rights of the people from being violated in any manner utmost care has to be taken that the court does not transgress its jurisdiction. There is, in our constitutional framework a fairly clear demarcation of powers. The court has come down heavily whenever the executive has sought to impinge upon the court's jurisdiction."
(x) The Court would ordinarily not step out of the known areas of judicial review. The High Courts although may pass an order for doing complete justice to the parties, they do not have a power akin to Article 142 of the Constitution of India.
(ix) Ordinarily, the High Court should not entertain a writ petition by way of public interest litigation questioning the constitutionality or validity of a statute or a statutory rule.
52. This Court in BALCO Employees' Union (Regd.) succinctly opined: (SCC pp. 3767-77, paras 77-80).
"77. Public interest litigation, or PIL as it is more commonly known, entered the Indian judicial process in 1970. It will not be incorrect to say that it is primarily the judges who have innovated this type of litigation as there was dire need for it. At that stage, it was intended to vindicate public interest where fundamental and other rights of the people who were poor, ignorant or in socially or economically disadvantageous position and were unable to seek legal redress were required to be espoused. PIL was not meant to be adversarial in nature and was to be cooperative and collaborative effort of the parties and the court so as to secure justice for the poor and the weaker sections of the community who were not in a position to protect their own interests. Public interest litigation was intended to mean nothing more than what words themselves said viz. 'litigation in the interest of the public'.
78. While PIL initially was invoked mostly in cases connected with the relief to the people and the weaker sections of the society and in areas where there was violation of human rights under Article 21, but with the passage of time, petitions have been entertained in other spheres. Prof. S.B. Sathe has summarized the extent of the jurisdiction which has now been exercised in the following words:
'PIL may, therefore, be described as satisfying one or more of the following parameters. These are not exclusive but merely descriptive: ____ Where the concerns underlying petition are not individualist but are shared widely by a large number of people (bonded labour, undertrial prisoners, prison inmates).
____Where the affected person belong to the disadvantaged section of society (women, children, bonded labour, unorganized labour etc.) _____Where judicial law -making is necessary to avoid exploitation (inter- country adoption, the education of the children of the prostitutes). _____Where judicial intervention is necessary for the protection of the sanctity of democratic institutions (independence of the judiciary, existence of grievance redressal forums).
_____Where administrative decisions related to development are harmful to the environment and jeopardize people's right to natural resources such as air or water.'
79. There is, in recent years, a feeling which is not without any foundation that public interest litigation is now tending to become publicity interest litigation or private interest litigation and has a tendency to be counterproductive.
80. PIL is not a pill or a panacea for all wrongs. It was essentially meant to protect basic human rights of the weak and the disadvantaged and was a procedure which was innovated where a public-spirited person files a petition in effect on behalf of such persons who on account of poverty, helplessness or economic and social disabilities could not approach the court for relief. There have been, in recent times, increasingly instances of abuse of PIL. Therefore, there is a need to reemphasize the parameters within which PIL can be resorted to by a petitioner and entertained by the court. This aspect has come up for consideration before this Court and all we need to do is to recapitulate and re-emphasize the same."
58. We have also not come across any case so far where the functions required to be performed by statutory functionaries had been rendered redundant by a court by issuing directions upon usurpation of statutory power. The right of a person belonging to a particular religious denomination may sometimes fall foul of Articles 25 and 26 of the Constitution of India. Only whence the fundamental right of a person is infringed by the State an action in relation thereto may be justified. Any right other than the fundamental rights contained in Articles 25 and 26 of the Constitution of India may either flow from a statute or from the customary laws. Indisputably, a devotee will have a cause of action to initiate an action before the High Court when his right under statutory law is violated. He may also have a cause of action by reason of action or inaction on the part of the State or a statutory authority; an appropriate order is required to be passed or a direction is required to be issued by the High Court. In some cases, a person may feel aggrieved in his individual capacity, but the public at large may not.
61. In State of W.B. V. Nuruddin Mallick, (1998) 8 SCC 143 it has been held: (SCC pp. 152-53, para 28) "28. it is not in dispute in this case that after the management sent its letter dated 6-8-1992 for the approval of its 31 staff viz. both teaching and non-teaching staff, both the District Inspector of Schools and the Secretary of the Board sought for certain information through their letters dated 21-9- 1992. Instead of sending any reply, the management filed the writ petition in the High Court, leading to passing of the impugned orders. Thus, till this date the appellant authorities have not yet exercised their discretion. Submission for the respondents was that this court itself should examine and decide the question in issue based on the material on record to set at rest the long-standing issue. We have no hesitation to decline such a suggestion. The courts can either direct the statutory authorities, where it is not exercising its discretion, by mandamus to exercise its discretion, or when exercised, to see whether it has been validly exercised. It would be inappropriate for the Court to substitute itself for the statutory authorities to decide the matter."
67. Mr. Subbao Rao referred to N.M.Thomas for the proposition that court is also a "State" within the meaning of Article 12 but that would not mean that in a given case the court shall assume the role of the executive government of the State. Statutory functions are assigned to the State by the legislature and not by the court. The court while exercising its jurisdiction ordinarily must remind itself about the doctrine of separation of powers which, however, although does not mean that the court shall not step in any circumstance whatsoever but the court while exercising its power must also remind itself about the rule of self-restraint. The court, as indicated hereinbefore, ordinarily is reluctant to assume the functions of the statutory functionaries. It allows them to perform their duties at the first instance.
The Hon'ble Apex Court in Janata Dal Vs. H.S.Chowdhary and others (1992) 4 SCC 305 has laid down the criteria for entertaining PIL, which reads as under:-
109. "It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly, a vexatious petition under the colour of PIL brought before the court for vindicating any personal grievance, deserves rejection at the threshold."
The tenor of the petition leaves no room for doubt that the instant writ petition has been preferred by the petitioner with extraneous motivation or for glare of publicity break the queue muffing his face by wearing the mask of Public Interest Litigation. In Dattaraj Nathuji Thaware, Appellant V. State of Maharashtra and others, AIR 2005 Supreme Court 540 the Hon'ble Supreme Court has laid emphasis that PIL should be used for delivering social justice to the citizens. In other words, it should be exercised for redressal of genuine public wrong or public injury but at the same it should not be allowed to abused for oblique considerations or improper motives. It would be expedient to reproduce paragraphs 8,9,11 and 12 of the above referred case:-
8. It is depressing to note that on account of such trumpery proceedings initiated before the Courts, innumerable days are wasted, which time otherwise could have been spent for the disposal of cases of the genuine litigants. Though we spare no efforts in fostering and developing the laudable concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed, unrepresented and unheard; yet we cannot avoid but express our opinion that while genuine litigants with legitimate grievances relating to civil matters involving properties worth hundreds of millions of rupees and criminal cases in which persons sentenced to death facing gallows under untold agony and persons sentenced to life imprisonment and kept in incarceration for long years, persons suffering from undue delay in service matters- Government or private, persons awaiting the disposal of cases wherein huge amounts of public revenue or unauthorised collection of tax amounts are locked up, detenue expecting their release from the detention orders etc, etc. are all standing in a long serpentine queue for years with the fond hope of getting into the Courts and having their grievances redressed, the busy bodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either of themselves or as a proxy of others or for any other extraneous motivation or for glare of publicity break the queue muffing their faces by wearing the mask of public interest litigation and get into the Courts by filling vexatious and frivolous petitions and thus criminally waste the valuable time of the Courts and as a result of which the queue standing outside the doors of the Courts never moves, which piquant situation creates frustration in the minds of the genuine litigants and resultantly they lose faith in the administration of our judicial system.
9. 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 armory of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. As indicated above, court must be careful to see that a body of persons or member of public, who approaches the Court is acting bona fide and not for personal gain or private motive or political motivation or other oblique considerations. The Court must not allow its process to be abused for oblique considerations by masked phantoms who monitor at times from behind. Some persons with vested interest indulge in the pastime of meddling with judical process either by force of habit or from improper motives, and try to bargain for a good deal as well to enrich themselves. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busy bodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs.
11. The Court has to be satisfied about (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike balance between two conflicting interests; (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature. The Court has to act ruthlessly while dealing with imposters and busybodies or meddlesome interlopers impersonating as public-spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect.
12. Courts must do justice by promotion of good faith, and prevent law from crafty invasions. Courts must maintain the social balance by interfering where necessary for the sake of justice and refuse to interfere where it is against the social interest and public good. (See State of Maharashtra V. Prabhu (1994 (2) SCC 481), and Andra Pradesh State Financial Corporation V. M/s. GAR Re-Rolling Mills and Anr., (AIR 1994 Screening Committee 2151). No litigant has a right to unlimited draught on the court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions. (See Dr. B.K.Subbarao V. Mr. K.Parasaran, 1996 (7) JT 265). Today people rush to Courts to file cases in profusion under this attractive name of public interest. They must inspire confidence in Courts and among the public.
The Hon'ble Apex Court in Sampat Singh and others Vs. State of Haryana and others, (1993) 1 SCC 561 held at paras 5 and 6 as under:-
5. These petitioners were not at all parties to the earlier proceedings at any stage. Hence, notwithstanding the above submission, we unreservedly hold that these petitioners have no locus standi to approach this Court for the reliefs sought for in this petition. In this connection, reference may be made to the decisions of this Court in Janata Dal V. H.S.Chowdhary, (1992) 4 SCC 305 and Simaranjit Singh Mann V. Union of India, (1992) 4 SCC 653. The copies of the affidavit of Dharam Pal and the order of the Magistrate, discharging the accused have been produced before us. We also sent for the file, containing the said affidavit and discharge orders and perused the same.
6. Though it is true that Dharam Pal who appeared before this Court supporting the case of the State of Haryana in Civil Appeal N0.5412 of 1990 with full vigour, appears to have suddenly reversed back from his earlier stand and given an affidavit withdrawing his allegations. The question whether the offering of the post of Chairman of Khadi Board of Haryana as a quid pro quo for tendering the affidavit or not, does not fall within our province in the present proceeding. Further we do not like to express any opinion on his conduct except observing that the Court should not be indirectly used as an instrumentality by anyone to attain or obtain any beneficial achievement which one could not get through normal legal process and that if anyone approaches the Court with ulterior motive, designed to wrench some personal benefit by putting another within the clutches of law and using the Court as a devise only for that end but not to get any legal remedy, then in such a situation the Court should heavily come upon such a person and see that the authority of the Court is not misused. Neither the State nor the complainant, Dharam Pal has challenged the order of the Magistrate discharging the accused, presumably for the reasons that the police has closed the investigation and sent its cancellation report and that Dharam Pal has expressed his desire in his affidavit not to probe into the allegations. We have gone through the entire file as well as the order of the Magistrate. Except observing that the complainant who initiated the law into motion alleging serious allegations against Ch. Bhajan Lal who was then holding a Cabinet rank in the Central Government, may become liable for criminal and civil liability in case the allegations are not proved. Whatever might have been the motive of Dharam pal for withdrawal of his complaint, he, after having fought the case up to this Court in quashing proceedings cannot have any justification in requesting the investigating officer not to probe into the allegations and staging 'walk out' of the Court. On the other hand, he ought to have submitted to the discipline of the Court, especially when he has initiated the proceedings as a public interest litigant.
This petition styled as Public Interest Litigation is nothing but a camouflage to foster personal disputes. It is necessary to take note of the meaning of the expression "public interest litigation". In Stroud's Judicial Dictionary, Vol. 4, 4th Edn., "Public interest" is defined thus:
"Public interest.-(1) A matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement; but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected."
In Black's Law Dictionary, 6th Edn., "public interest" is defined as follows:
"Public interest.- 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 the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, State or national Government.
In Janata Dal Case (1992) 4 SCC 305: 1993 SCC (Cri) 36 the Apex Court considered the scope of public interest litigation. Following paragraphs are relevant:
"53. The expression 'litigation' means a legal action including all proceedings therein, initiated in a court of law with the purpose of enforcing a right or seeking a remedy. Therefore, 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 the community have pecuniary interest or some interest by which their legal rights or liabilities are affected."
"62 Be that as it may, it is needless to emphasise that the requirement of locus standi of a party to a litigation is mandatory, because the legal capacity of the party to any litigation whether in private or public action in relation to any specific remedy sought for has to be primarily ascertained at the threshold."
"98. While this Court has laid down a chain of notable decisions with all emphasis at their command about the importance and significance of this newly developed doctrine of PIL, it has also hastened to sound a red alert and a note of severe warning that courts should not allow its process to be abused by a mere busybody or a meddlesome interloper or wayfarer or officious intervener without any interest or concern except for personal gain or private profit or other oblique consideration."
"109. It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly, a vexatious petition under the colour of PIL brought before the court for vindicating any personal grievance, deserves rejection at the threshold."
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 citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity-oriented or founded on personal vendetta. As indicated above, court must be careful to see that a body of persons or a member of the public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The court must not allow its process to be abused for oblique considerations. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies deserve to be thrown out by rejection at the threshold, and in appropriate cases, with exemplary costs.
Lexically the expression PIL means a legal action initiated in a Court of law for enforcement of public interest or general interest or in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are effected. Thus, the concept of PIL which has been and is being fostered by judicial activism has become an increasingly important one setting up valuable and respectable records specially in the Arena of Constitutional and legal treatment for the un- representated and under represented."
PIL needs a self imposed judicial restriction, especially when the grievance exposed does not adversely affect the large number of citizens who on account of innumerable reasons, like poverty, etc., cannot approach the Court to ventilate their grievances. Before the public interest jurisdiction is invoked, the Court is ordinarily expected to be satisfied that there is some element of public interest, that the transaction impugned involves malafides, and that there is a need for balancing the consequences of the public good with the act of the State. Public interest litigation should not ordinarily be permitted as an adventurous freak in Court. The Courts should shun the temptation of litigant to achieve political goals or personal gains.
Before we grapple with the issue involved in the present case, we feel it necessary to consider the issue regarding public interest aspect. Public Interest Litigation which has now come to occupy an important field in the administration of law should not be "publicity interest litigation" or "politics interest litigation" or for moving the courts with oblique motive for personal gains. It should be properly regulated and should be averted. It should not be allowed to become a tool in unscrupulous hands to release vendetta and wreak vengeance as well. A person acting bona fide and having sufficient interest in the proceeding of public interest litigation will alone have a locus standi and can approach the court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration. The petitioner has failed to satisfy that he was genuinely concerned in the public interest.
In this context, we find that the Hon'ble Apex Court had deprecated such Public Interest Litigation commenced by a third party. In S.P.Gupta Vs. Union of India , 1981 Suppl SCC 87, Hon'ble Apex Court held as under:-
"But we must be careful to see that the member of the public, who approaches the Court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The Court must not allow its process to be abused by politicians and others."
It is not the case of the petitioner that the aggrieved party is a minor, an insane person or is suffering from any other disability which the law recognizes as sufficient to permit another person, eg. next friend, to move the Court on his behalf. It is also not the case of the petitioner that any of the aggrieved party, who is under some disability recognized by law has asked him to set the law in motion. We feel that it would be unsafe and hazardous that at the behest of the third party the matter regarding auction, which has already been concluded between the parties, should be reopened.
Keeping in view the law laid down by the Hon'ble Apex Court in Karamjeet Singh Vs. Union of India AIR 1993 SCC 284 and Ashok Kumar Pandey Vs. State of Bengal AIR 2004 SCC 280, the petition is devoid of any merit. The petition cannot be treated as Public Interest Litigation and the petitioner being the third party and stranger cannot be permitted to maintain the petition.
Contents of para 19 of the writ petition leave no room for doubt that the instant petition has not been preferred alleging any violation of Article 21 or Human Right or the litigation has been initiated for the benefit of the poor and the under privileged. It is also clear that petitioner who is an Advocate is a stranger and is not an aggrieved person. Accordingly, in view of the decision of the Hon'ble Apex Court in the case of Villianur Iyarkkai Padukappu Maiyam Vs. Union of India and Others, 2009 (7) SCC 561, he has no locus standi to file the instant petition relevant paras 114 and 115 are reproduced as under:-
"114. The question of locus standi in the matter of awarding the contract has been considered by this Court in BALCO Employees' Union (Regd.) v. Union of India and others, (2009) 7 SCC 561 . This Court, after review of law on the point, has made following observations in paragraph 88 of the judgment:
88. It will be seen that whenever the Court has interfered and given directions while entertaining PIL it has mainly been where there has been an element of violation of Article 21 or of human rights or where the litigation has been initiated for the benefit of the poor and the underprivileged who are unable to come to court due to some disadvantage. In those cases also it is the legal rights which are secured by the courts. We may, however, add that public interest litigation was not meant to be a weapon to challenge the financial or economic decisions which are taken by the Government in exercise of their administrative power. No doubt a person personally aggrieved by any such decision, which he regards as illegal, can impugn the same in a court of law, but, a public interest litigation at the behest of a stranger ought not to be entertained. Such a litigation cannot per se be on behalf of the poor and the downtrodden, unless the court is satisfied that there has been violation of Article 21 and the persons adversely affected are unable to approach the court.
115. On the facts and in the circumstances of the case, this Court is of the view that the only ground on which the appellants could have maintained a PIL before the High Court was to seek protection of the interest of the people of Pondicherry by safeguarding the environment. This issue was raised by the appellants before the High Court and the High Court has issued directions regarding the same, which are to be found in paragraph 24 of the impugned judgment. After the High Court's directions the element of public interest of the appellants' case no longer survives. The appellants cannot, therefore, proceed to challenge the Award of the Contract in favour of the respondent No. 11 on other grounds as this would amount to challenging the policy decision of the Government of Pondicherry through a PIL, which is not permissible. Thus on the ground of locus standi also the appeals should fail."
In view of the law laid down by the Apex Court the petition can not be treated to be a Public Interest Litigation and a third party or stranger cannot be permitted to maintain the petition and thus on this count the petition is liable to be dismissed.
Yet there is another aspect in this matter. The Hon'ble Apex Court repeated from time to time the essential requirement to file the writ petition is firstly to establish that the petitioner is a bona fide person having sufficient interest in the proceedings in the nature of PIL. He has alone the locus standi to approach the Court and not a person who comes for personal gain of private profit, or political motive or any oblique consideration. Similarly a vexatious or proxy writ petition under the colour of Public Interest Litigation brought before this Court for vindicating personal grievances deserves rejection at the threshold keeping in mind the ratio of law laid down in the cases e.g. Janta Dal Vs. S.S.Chaudhary, D.N.Thaware Vs. State of Maharashtra and Villianur Iyarkkai Padukappu Maiyam Vs. Union of India and Others (supra). This Court is of the view that the writ petition is not presented by the writ petitioner bonafidely and is not likely to serve any public interest, the same cannot be entertained as it does not aim redressal of genuineness of public law or public injury.
It is pertinent to refer that the petitioner is a professional Advocate. Advocate has no locus standi to file the writ petition in his own name when the petition is not in public interest and nothing prevented affected person from filing writ petition. The matter was considered by the Hoh'ble Apex Court in Vinoy Kumar Vs. State of U.P., AIR 2001 SCC 1739, para 3 of which reads as under:
"In the instant case the petitioner had not filed the petition in public interest and did not disclose the circumstances which prevented the affected persons from approaching the Court. In the discharge of his professional obligations, the petitioner Advocate is not obliged to file the writ petition on his clients. No circumstance was mentioned in the petition which allegedly incapacitated the affected persons from filing the writ petition. Section 30 of the Advocates Act, only entitles an Advocate to practice the profession of law and not to substitute himself for his client. The filing of the writ petition in his own name, being not a part of the professional obligation of the Advocate, the High Court was justified in dismissing the writ petition holding that the petitioner-Advocate had no locus standi."
Similarly in Dattaraj Nathuji Thaware Versus State of Maharashtra and others, AIR 2005 SC 540, the apex court affirmed the High Court's monetary penalty against the member of Bar for filing a frivolous and vexatious Public Interest Litigation to foster personal dispute. It has been observed that no-one should be permitted to disgrace the noble profession. Paras 1 and 17 of the judgment of the above case read as under :--
"Para-1: This case is a sad reflection on members of the legal profession and is almost a black spot on the noble profession. The petitioner who belongs to this profession filed a petition styled as "Public Interest Litigation" before the Nagpur Bench of the Bombay High Court. By the impugned judgment, the High Court dismissed it holding that there was no public interest involved and in fact the petitioner had resorted to blackmailing respondent nos.6 & 7 and was caught red handed accepting 'black-mailing' money. The High Court also noticed that the allegations of unauthorised constructions made in the petition were also not true.
Para-17: It is disturbing feature which needs immediate remedial measure by the Bar Councils and the Bar Association to see that the process of law is not abused and polluted by its member. It is high time that the Bar Councils and the Bar Associations ensure that no member of the Bar becomes party as petitioner or in aiding and/or abetting files frivolous petitions carrying the attractive brand name of "Public Interest Limitation". That will be keeping in line with the high traditions of the Bar. No one should be permitted to bring disgrace to the noble profession. We would have imposed exemplary cost in this regard but taking note of the fact that the High Court had already imposed costs of Rs.25,000/-, we do not propose to impose any further cost."
Thus the direction of the Hon'ble Apex Court impels the Bar Council and Bar Association to take appropriate action against erring members found guilty of filing frivolous and vexatious PIL petitions. Thus on this count also the petition is misconceived and not maintainable.
Yet there is another aspect of the matter. Lucknow Development Authority has come forward with a case that the economic decision was taken in public interest in accordance with norms which cannot be agitated.
However, the Hon. Apex Court in the matters of economic decisions decided not to examine relative merits on different economic policies and refused to strike down a policy decision on the grounds of its desirability.
In the case of Balco Employes Union Versus Union of India and others,(2002)2 SCC 333, in para-47 the Hon'ble Apex Court held as under;
"47. Process of disinvestments is a policy decision involving complex economic factors. The Courts have consistently refrained from interfering with economic decisions as it has been recognised that economic expediencies lack adjudicative disposition and unless the economic decision, based on economic expediencies, is demonstrated to be so violative of constitutional or legal limits on power or so abhorrent to reason, that the Courts would decline to interfere. In matters relating to economic issues, the Government has, while taking a decision, right to "trial and error" as long as both trial and error are bona fide and within limits of authority. There is no case made out by the petitioner that the decision to disinvest in BALCO is in any way capricious, arbitrary, illegal or uninformed. Even though the workers may have interest in the manner in which the Company is conducting its business, inasmuch as its policy decision may have an impact on the workers rights, nevertheless it is an incidence of service for an employee to accept a decision of the employer which has been honestly taken and which is not contrary to law."
In Federation of Railway Officers Association and others Versus Union of India, AIR 2003 SC 1344 the Hon'ble Apex Court at para 12 held as under;
"Para-12: In examining a question of this nature where a policy is evolved by the Government judicial review thereof is limited. When policy according to which or the purpose for which discretion is to be exercised is clearly expressed in the statute, it cannot be an unrestricted discretion. On matters affecting policy and requiring technical expertise Court would leave the matter for decision of those who are qualified to address the issues. Unless the policy or action is inconsistent with the Constitution and the laws or arbitrary or irrational or abuse of the power, the Court will not interfere with such matters."
Further the Hon'ble Apex Court in Balco Employees case (supra) held at para-87 that PIL was not meant to be a weapon to challenge the financial or economic decision which are taken by the Government in exercise of their administrative power. No doubt a person personally aggrieved by any such decision which he records as illegal can impugn the same in the court of law but a PIL at the behest of a stranger ought not to be entertained. Relevant para-87 of the above ruling is reproduced as under;
"Para-87: It will seen that whenever the Court has interfered and given directions while entertaining PIL it has mainly been where there has been an element of violations of Article 21 of human rights or where the litigation has been initiated for the benefit of poor and the under privileged who are unable to come to Court due to some disadvantage. In those cases also it is the legal rights which are secured by the Courts. We may, however, add that Public Interest Litigation was not meant to be a weapon to challenge the financial or economic decisions which are taken by the Government in exercise of their administrative power. No doubt a person personally aggrieved by any such decision, which he regards as illegal, can impugn the same in a Court of law, but, a Public Interest Litigation at the behest of a stranger ought not to be entertained. Such a litigation cannot per se be on behalf of the poor and the downtrodden, unless the Court is satisfied that there has been violation of Article 21 and the persons adversely affected and unable to approach the Court."
Thus in this context even on merits we find that the Government decision is not liable to be challenged.
We have perused the record. Despite several opportunity given to the petitioner no rejoinder affidavit was filed to contradict the version of the respondents 2 to 6. There is nothing on record to establish that the Government was ever pleased to give exemption in the stamp duty or the market price of the land is three times higher than the price fixed for auction. Also there is nothing on record to prove that the auction caused loss to State Exchequer and bidders were helped. No allegation or malafide is proved against the Board constituting many persons which approved the entire proposal. Thus the contents of the writ petition are misconceived and are not proved.
In this regard paragraphs 7 to 11 of the counter affidavit are reproduced as below;
"Para-7- That the contents of paragraph-7 of the writ petition are denied. It is stated that the reserve price has to be fixed according to the actual status of the land in question in accordance with the Government Order dated 03.06.2005 wherein the rate fixed for commercial land is held to be twice of the residential rate. The reserve price for residential land in Gomti Nagar Scheme Phase I including Vibhuti Khand upto 30.11.2003 was Rs.2500 per sq.mt. and the same was revised to Rs.3000 per sq.mt. with effect from 01.12.2003 through order dated 29.11.2003. A copy of the order dated 03.06.2005 and the order dated 29.11.2003 are being annexed as Annexure No.C-3 & C-4 to this counter affidavit. Thus the rate for commercial land with effect from 01.12.2003 was Rs.6000 per sq.mt. i.e. double the reserve price for residential land. The reserve price of Gomti Nagar Phase-I including Vibhuti Khand was further revised to Rs.4000 per sq.mt. with effect from 01.04.2006 through order dated 29.03.2006. A copy of the order dated 29.03.2006 is being annexed as Annexure No.C-5 to this counter affidavit. The reserve price was further revised to Rs.4400 per sq.mt. for Gomti Nagar Phase-I including Vibhuti Khand with effect from 01.09.2007 through order dated 03.09.2007. A copy of the order dated 03.09.2007 is being annexed as Annexure No.6 to this Counter Affidavit. Thus the reserve price of the Lucknow Development Authority for Gomti Nagar Scheme Phase I including Vibhuti Khand even on date is Rs.4400 per sq.mt.for residential land and double the same for commercial land i.e. Rs.8800 per sq.mt. The price of Rs.15000 per sq.mt.indicated by the petitioner in the paragraph under reply for Vibhuti Khand, Gomti Nagar Scheme, Lucknow is imaginary resulting which the consequential calculation made by the petitioner in the paragraph under reply is also imaginary. The qualification for bidders was fixed in the tender notice dated 29.05.2005, amended tender notice dated 14.06.2005 and tender notice dated 16.06.2005 on the basis of the recommendation of the committee which was accepted by the Vice Chairman, Lucknow Development Authority. The committee made the recommendation after studying/analyzing the similar conditions imposed by Greater NOIDA Industrial Development Authority. The condition of solvency and turnover is fixed with regard to commercial plots for construction of commercial and residential and not for those plots for which construction of only commercial or only Group Housing is permitted. If no restriction of solvency, turnover and earnest money would have been placed in the tender notice dated 29.05.2005, amended tender notice dated 14.06.2005 and tender notice dated 16.06.2005 then the object of making development through developers upon the land in question could have never been achieved if the persons having low solvency and turnover would have been permitted to take part in the bid and simultaneously the money in phased manner could not have been realized by the Lucknow Development Authority as well as the interest of the public who are prospective buyers would have been adversely affected.
Para-8- That the contents of paragraph 8 of the writ petition are denied. It is stated that commercial plot of Viraj Khand, Gomti Nagar Scheme, Lucknow and Vastu Khand, Gomti Nagar Scheme, Lucknow referred in the paragraph under reply can not be compared with the commercial plots in Vibhuti Khand, Gomti Nagar Scheme, Lucknow on account of the location, size of plots and activities permitted. The condition of solvency and turnover is fixed with regard to commerical plots for construction of commercial land residential and not for those plots for which construction of only commercial or only Group Housing is permitted. In Viraj Khand, Gomti Nagar, Lucknow and Vastu Khand Gomti Nagar Lucknow several commercial plots were auctioned during the relevant time of which the petitioner is citing example and the highest bid for the most of the said commercial plots was almost at par with the highest bid of Vibhuti Khand, Gomti Nagar Scheme, Lucknow.
Para-9- That the contents of paragraph 9 of the writ petition are denied. It is stated that all the terms and conditions are not published in the tender notice. The detailed terms and conditions are indicated in the tender form which can be purchased from the office of the Lucknow Development Authority. A blank copy of the tender form along with detailed terms and conditions is being annexed as Annexure No.C-7 to this Counter Affidavit. The Floor Area Ratio and Ground Coverage is 2.0 and 30% respectively in the case of commercial plots in commercial area as per Lucknow Development Authority Building Byelaws, 2000. The tender notice of Jaipur Development Authority can not be compared with the tender notice of the Lucknow Development Authority.
Para-10- That the contents of paragraph 10 of the writ petition are denied. It is stated that the petitioner with regard to Floor Area Ratio is referring to Chapter 3 - Part 3 of the Lucknow Development Authority Building Byelaws, 2000 which is for Group Housing and is not applicable in respect of commercial plots as the same is dealt with Chapter -3-Part-5 of Lucknow Development Authority Building Byelaws, 2000. A copy of the Chapter 3-Part 5 of Lucknow Development Authority Building Byelaws, 2000 is being annexed as Annexure No.C-8 to this Counter Affidavit. The FAR, ground coverage and purchasable FAR has been fixed strictly in accordance with the Lucknow Development Authority Building Byelaws, 2000 meant for commercial area.
Para-11- That the contents of paragraphs 11 & 12 of the writ petition are denied. It is stated that no reduction in stamp duty has been granted by the State Government whereas on the contrary 10% of the stamp duty has been paid by the allottees while executing the registered agreement which will be evident from the chart annexed as Annexure No.C-2 to this Counter affidavit. Thus, no relaxation has been given to the allottees."
Thus having regard to the contents of paragraphs 7 to 11 referred to above it transpires that there is not even an iota of evidence to prove that respondents caused any loss to the public exchequer or they acted in a fashion to help bidders. Curiously enough no bidder has come forward to challenge the entire transaction and the petitioner who is not aggrieved person has assailed the auction of the respondents without any locus on an economic matter which is not in violation of any rule.
Thus this petition has not been filed with clean hands. The conduct of the petitioner dis-entitles him to maintain the petition. However, we find that the petitioner who is an Advocate should not have filed this writ petition. The matter is referred to the Bar Council of U.P. for appropriate decision in the matter. Accordingly, no monetary penalty is required to be imposed against the petitioner for filing this petition.
Considering the facts in its entirety and proposition of law we are not inclined to interfere in the petition under Article 226 of the Constitution as the writ petition being not maintainable lacks merit also.
The writ petition is dismissed.
28.06.2010 Irfan/-