Hon'ble Jaspreet Singh,J.
Heard Shri Chandra Bhushan Pandey, learned counsel for the petitioner and Shri Mukund Tewari who has filed his vakalatnama on behalf of respondents no.2 and 3 as well as Shri S.S.Chauhan who has filed his vakalatnama on behalf of the respondent no.5 and Shri Q.H.Rizvi, Additional Chief Standing Counsel for the respondent no.1.
The present writ petition has been filed in the nature of PIL seeking the following reliefs:-
(i) to issue a writ, order or direction in the nature of mandamus commanding the respondents no.1 to 5 to take action against the unauthorized construction built on Plot No.2, Vijay Nagar, behind Gurudwara, Naka Hindola, Lucknow accordance with the law;
(ii) to issue a writ, order or direction in the nature of mandamus commanding the respondents no.1 to 5 to take strict departmental as well as criminal action against all those persons, who are involved in the aforesaid unauthorized construction;
(iii) to issue a writ, order or direction in the nature of mandamus commanding the respondents no.1 to 5 to restrain the respondents no.6, 7 & 8 for further construction on the aforesaid plot.
Shri Chandra Bhushan Pandey learned counsel for the petitioner has submitted that the respondents no.6, 7 and 8 are raising construction which are unauthorized. It has been submitted that the respondents no.6 to 8 have long and chequred criminal history and though initially one person, namely, Ashwani Chawla who is a resident of Motinagar took note of the aforesaid unauthorized construction and had made a representation to the Lucknow Development Authority. However, nothing was done. It has also been submitted that the Lucknow Development Authority later had issued orders for demolishing unauthorized building and this information is based on a newspaper report published in Navbharat Times on 12th of May, 2018 and an extract of the same has been brought on record as Annexure no.4. It has also been submitted that there took place some altercation between Ashwani Chawla and the private respondents which led to filing of a criminal case wherein the private respondents were convicted by means of judgment dated 22.01.2019. Since no action was taken by the appropriate development authority, consequently, one Surendra Kumar Srivastava a practicing Advocate also filed a detailed representation upon which no order or action was taken and it is in this backdrop that the present petitioner Bindhesh Pandey who is also an Advocate has preferred the above petition as a PIL seeking relief's which have been noticed herein above first.
The Additional Chief Standing Counsel, Shri Q.H.Rizvi, Shri S.S.Chauhan and Shri Mukund Tewari have submitted that the present petition is not maintainable; inasmuch as it arises out of personal animosity and in order to give a colour, it has been filed as a PIL. Since there are private disputes hence it is not a fit case for being considered as a PIL to be entertained by this Court. It has also been pointed out that the petitioner has not substantially complied with the provisions of Chapter XXII Rule 3-A of the Allahabad High Court Rules, 1952 and for all the reasons, the above petition is not maintainable and deserves dismissal.
Shri Chandra Bhushan Pandey in reply has submitted that where an illegality is being perpetuated and the authorities are not taking cognizance of the same; in such a case it is open for any citizen to approach the Court in shape of a PIL and ensure that the Rule of law is established. It has further been submitted that since the private respondents have a chequred criminal history, therefore, there is none, who will come forward to oppose the illegal constructions. He has relied upon the decision of the Apex Court in the case of 2016 (2) SCC page 653 D. N. Jeevaraj Vs. Chief Secretary, Govt. of Karnataka and 2015 (7) SCC page 779 Anirudh Kumar Vs. Municipal Coorporation of Delhi and others. On the strength of the aforesaid decisions, it has been submitted that technicalities if any are required to be considered more liberally in a PIL involving issues pertaining to court burnish.
The Court has considered the rival submissions and also perused the record.
From perusal of the record, it is clear that there is no substantial compliance of the provisions under Chapter XXII Rule 3-A of the Allahabad High Court Rules; inasmuch as only in paragraph 4, briefly, it has been mentioned that the petitioner is a practicing Advocate and keenly interested in maintaining the rule of law. However, in the entire petition it has not been disclosed as to what are the credentials of the petitioner.
It will further be pertinent to notice that the entire petition is focused on the fact that the private respondents have raised illegal constructions and though the Lucknow Development Authority in a newspaper article, as published, has earmarked certain illegal construction against which proposed action of demolition is contemplatd yet the demolition has not taken place and it is for the aforesaid reason that the present PIL has been instituted.
Shri Chandra Bhushan Pandey was confronted with a query as to the fact whether any proceedings have been initiated by the Lucknow Development Authority against the private respondents in terms of the provisions contained in the U.P. Urban Planning & Development Act 1973. He could not inform with certainty regarding the details of proceedings initiated but it was submitted that since the Lucknow Development Authority had earmarked illegal construction for demolition and before undertaking the said exercise the Lucknow Development Authority would have resorted to provisions of the U.P. Urban Planning & Development Act.
Shri Pandey could not dispute the fact that if the proceedings would have been initiated by the Development Authority in terms of the provisions contained under the U.P. Urban Planning & Development Act then the same are subject to an appeal against which a further revision lies before the State Government as provided under the Act of 1973. All the relevant details have not been brought on record by the petitioner. Considering the fact that the petitioner is an Advocate by profession and ready to file a PIL then he ought to have been more cautious in making the relevant enquiries, could have collected the relevant information even by resorting to the provisions of the Right to Information Act 2005 to make the petition robust. However, no such information has been brought on record nor Shri Pandey could make any submission regarding the absence of the facts as to whether the private respondents had taken recourse to any of the remedies available under the Act of 1973 and its status and whether the orders of the Lucknow Development Authority have attained finality.
In absence of any material or submission to the effect that the private respondents have exhausted their statutory remedy and the demolition order has become final and yet the Development Authority is sleeping over the matter and only then in such a case it may raise concerns. In the present case there is complete absence of relevant pleadings and material on record hence this Court cannot take notice nor is impressed with the fact that merely because a structure has been identified as illegal it involves public interest and that the offending construction has been raised on plot no.2 Vijay Nagar which is behind a Gurudwara at Naka Hindola and there is also an Inter College in the close vicinity of the said plot.
From the aforesaid pleadings, it is clear that the person who are staying in an around the area including institutions such as a Gurudwara and Inter College have not raised any such objections nor have come forward to join in the PIL rather the objections have been raised by one Ashwani Chawla who as already indicated above, has personal animosity with the private respondents.
As far as reliance placed on the decisions of the Apex Court in the case of Anirudh Kumar (supra) is concerned, suffice to state that it was a matter relating to establishment of pathological laboratory in a complex in residential area from where medical waste and toxic and hazardous substances emanated and was resulting in air and sound pollution apart from a challenge to the regularisation certificate in contravention of the bye laws. Thus the aforesaid case is completely distinguishable on the facts of the present case.
The case of D. N. Jeevaraj (supra) has been relied upon by the learned counsel for the petitioner however in the same case itself it has been held that a PIL which is directed against any one organization or individual should be rarely entertained specially where other remedy is available.
In the case of D. N. Jeevaraj the Apex Court has held in paras 36 and 37 as under:-
36. A considerable amount has been said about public interest litigation in R & M Trust and it is not necessary for us to dwell any further on this except to say that in issues pertaining to good governance, the courts ought to be somewhat more liberal in entertaining public interest litigation. However, in matters that may not be of moment or a litigation essentially directed against one organization or individual (such as the present litigation which was directed only against Sadananda Gowda and later Jeevaraj was impleaded) ought not to be entertained or should be rarely entertained. Other remedies are also available to public spirited litigants and they should be encouraged to avail of such remedies.
37. In such cases, that might not strictly fall in the category of public interest litigation and for which other remedies are available, insofar as the issuance of a writ of mandamus is concerned, this Court held in Union of India v. S.B. Vohra[6] that:
"Mandamus literally means a command. The essence of mandamus in England was that it was a royal command issued by the King's Bench (now Queen's Bench) directing performance of a public legal duty.
A writ of mandamus is issued in favour of a person who establishes a legal right in himself. A writ of mandamus is issued against a person who has a legal duty to perform but has failed and/or neglected to do so. Such a legal duty emanates from either in discharge of a public duty or by operation of law. The writ of mandamus is of a most extensive remedial nature. The object of mandamus is to prevent disorder from a failure of justice and is required to be granted in all cases where law has established no specific remedy and whether justice despite demanded has not been granted."
In para 41 of the said report it has further held as under:-
41. This Court has repeatedly held that where discretion is required to be exercised by a statutory authority, it must be permitted to do so. It is not for the courts to take over the discretion available to a statutory authority and render a decision.
In the present case, the petitioner has remedy in terms of the provisions contained under the U.P. Urban Planning & Development Act of 1973 and as such it does not persuade this Court to treat the above petition in the nature of PIL.
The Apex Court in the case of State of Uttranchal Vs. Balwant Singh Chaufal & others reported in 2010 (3) SCC page 402 has held 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.
Similarly a Co-ordinate Bench of this Court in the case of Ajai Kumar Singh Vs. State of U.P. & others reported in 2010 SCC online 1168 while considering the Apex Court decisions has held as under:-
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.
34. Unless an aggrieved party is under some disability recognized by law, it would be unsafe and hazardous to allow any third party be a member of the Bar to question the decision against third parties."
In view of the aforesaid, we do not find any element of public interest involved. However, we may hasten to add that we expect and trust that the Development Authority shall carry out his functions and duties and execute its own orders without being biased or prejudiced so that the faith of the public remains intact in the institutions and does not give unnecessary leverage to persons to speculate. Consequently, for all the reasons above, we are not inclined to entertain the petition. Accordingly, the petition is dismissed.
(Jaspreet Singh, J) (Pankaj Kumar Jaiswal, J) Order Date :- 30.8.2019 ank