Court No. - 30
Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 4539 of 2018 Petitioner :- Ram Naresh Sachan Respondent :- State Of U P And 4 Others Counsel for Petitioner :- Adya Prasad Tewari,K.C. Mishra Counsel for Respondent :- C.S.C.,Diwakar Singh
Hon'ble Vivek Kumar Birla,J.
Heard Sri K.C. Mishra, learned counsel for the petitioner and Sri J.N. Maurya, learned Chief Standing Counsel alongwith Sri V.K. Pal, learned Standing Counsel appearing for the State respondents.
On perusal of order-sheet I found that 19.1.2019 has been wrongly mentioned in the order dated 12.12.2018. I remember that I have fixed 19.12.2018 in the present case in the top ten cases, however, apparently due to typing mistake in the order the date mentioned is 19.1.2019. Today the case is listed at Sl. No. 33 in the cause list as date fixed matter. The mistake stands corrected and the date stand corrected as 19.12.2018 in place of 19.1.2019 in my order dated 12.12.2018.
Today in the morning learned counsel stated that one Public Interest Litigation No. 4813 of 2018 (Soni Devi vs. State of U.P. and others) filed by one Soni Devi w/o Brij Lal r/o Village Dolchi - Dorma, Pargana Kara, Tehsil Sirathu, District Kaushambi is pending relating to the same dispute and therefore, this case may be passed over. He was asked to produce a copy of the order passed in the aforesaid PIL and was also directed to produce a copy of that PIL. The case was directed to be taken up after lunch.
After lunch when the matter was taken up learned counsel Sri K.C. Mishra, Advocate Roll No. A/K0488/2012, Seat No. 60-B, Block Ambedkar Bhawan, High Court, Allahabad, Mob. No. 9506480706 produced a copy of PIL No. 4813 of 2018 and also produced a copy of the order dated 14.12.2018 passed therein, which is quoted as under:-
"The grievance of the petitioner is that the respondents have taken a decision to construct a Trauma Centre. In this regard land - Arazi No. 154 has been taken for the construction and foundation was made in the year 2014, but there is no progress to complete the trauma centre.
Learned Standing Counsel may seek instructions that when the construction shall be completed.
Put up this case, as a fresh before appropriate Bench on 18th January, 2019."
The prayer made in the aforesaid PIL No. 4813 of 2018 (Soni Devi vs. State of U.P. and others) is quoted as under:-
"A. Issue a writ, order or direction in the nature of mandamus commanding and directing to answering respondents to ensure the construction of building of Trama Center as soon as possible over arazi no. 154 situate at village Dorma keeping in mind a larger public interest since a foundation has already been laid down in the year 2014 otherwise; a lot of people shall be deprived from the convenience of nearest medical treatment definitely.
B. Issue a writ, order or direction in the nature of mandamus commanding and directing to answering respondents to taken an appropriate and expeditious decision on the representation made by petitioner on several dates which is still pending borning in mind, the facility of medical health and the distance of hospital from the alleged village otherwise; numerous people shall have no sustain an irreparable loss and injury.
C. Or may issue other writ, order or direction which this Hon'ble court may deem fit and proper under the fact and circumstances of the present case.
D. Award the cost of the petition in favour of the petitioner."
PIL No. 4813 of 2018 was filed with an affidavit dated 14.11.2018 by Sri K.C. Mishra and the aforesaid order was passed on 14.12.2018.
Present petition being PIL No. 4539 of 2018 was filed by one Ram Naresh Sachan s/o Late Shiv Ram Singh r/o House No. 15B, Jayantipur, Preetamnagar, Sulem Sarai, District Allahabad. Present petition has been filed with the following prayer:-
"A. Issue a writ, order or direction in the nature of certiorari to call the records of concerned case and to quash the impugned decision cum order dated 18.6.2018 passed on the basis of false and fake report submitted by respondent no. 3 (Annexure No. 2) contained to this writ petition.
B. Issue a writ, order or direction in the nature of mandamus commanding and directing the ansering respondents strictly not to cut the standing green trees exist over arazi no. 293/5 area 0.0228 hect. sitaute at village Narsinghpur Kacchuwa district Kaushambi "and may also be mandated to respective authority to ensure the construction of Trama Center building over the land where already foundation has been laid as gata no. 1547m. situate at village Dorma, Tehsil Siradhu, District Kaushambi" otherwise; a gross detrimental shall have to sustain the ecology and environment and the consequences of its shall have to sustain also the living creature which cannot be compensated in any manner.
C. And / Or may pass any such other and further suitable order or direction, which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case as has been set out in the writ petition (PIL).
D. Award the cost of the petition in favor of the petitioner."
In the present petition counter affidavit has been filed and a copy whereof has been duly served on Sri K.C. Mishra, learned counsel for the petitioner.
A bare perusal of the same clearly indicates that Sri K.C. Mishra, learned counsel for the petitioner was fully aware of the fact that for the same prayer as highlighted above he had already filed this PIL No. 4539 of 2018, whereas concealing this fact he has filed PIL No. 4813 of 2018 with the same prayer as already made in the present petition. It is also important to note that the impugned decision / order dated 18.6.2018, whereby consideration of shifting the Trauma Centre from 154M at village Dorma, Tehsil Sirathu, District Kaushambi from Arazi No. 293/5 area 0.0228 hectare situated at Village Narsinghpur Kacchua, District Kaushambi had already been taken, has been concealed in PIL No. 4813 of 2018 filed before Hon'ble Division Bench. Therefore, clearly learned counsel for the petitioner Sri K.C. Mishra, who has filed both the petitions was fully aware of this fact that decision of shifting Trauma Centre had already been taken, which is under challenge in a petition already filed by him only and is pending. There is no reference of this decision in the entire PIL No. 4813 of 2018. Not only this, learned counsel is also aware of the fact that decision has been taken in view of the direction issued by Hon'ble Division Bench of this Court dated 13.11.2014 passed in Writ C No. 10704 of 2014 (Amita Vandana vs. State Of U.P. Thru Secy./Joint Secy. And 3 Others). Relevant portion of the aforesaid order dated 13.11.2014 was also quoted in the impugned decision / order dated 18.6.018, which is annexed as Annexure-2 to the present petition.
To appreciate the background under which the order impugned in the present petition dated 18.6.2018 was passed it would be relevant to take note of the judgment and order dated 13.11.2014 passed by this Court in Writ C No. 10704 of 2014 (Amita Vandana vs. State of U.P. Thru Secy./Joint Secy. and 3 others), which is quoted as under:-
"Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents.
Petitioner before this Court, who is the member of Zila Panchayat, Kaushambi has filed this writ petition for quashing the order dated 31.1.2014 whereunder Gram Sabha land has been resumed for the purposes of construction of trauma centre at village Dorma.
It is the case of the petitioner that earlier a decision was taken to construct the trauma centre at plot no.293 of village Narsinghpur Kachhuwa, Pargana Kara, Tehsil Sirathu, District-Kaushambi and for the purpose land of Gram Sabha concerned had been resumed. According to the petitioner the decision to shift the trauma centre is an outcome of political interference, and not for the convenience of the public at large. Various aspects of the matter have been pointed out for the purpose of demonstrating that the trauma centre at village Narsinghpur Kachhuwa could be more suitable viz-a-viz the trauma centre to be established at village Dorma.
Having heard the counsel for the petitioner and examined the records of the present writ petition, we are of the considered opinion that the establishment of the trauma centre is of much more importance than the personal convenience or inconvenience of individual persons like the petitioner. At the same time it must be kept in mind by the District Authorities that the trauma centres are established for taking care of persons who are injured during road accident and who need immediate medical attention. Such trauma centres must be established adjacent to a motorable road and nearer to the highway as far as possible.
Because of the interim order passed by this Court the construction of the trauma centre is withheld for years together, which cannot be in the larger public interest, we are of the considered opinion that no purpose would be served by keeping the writ petition pending.
The writ petition is disposed of with following directions :
(a) Respondent no.1 shall take a decision in the matter of construction of the trauma centre in Zila Panchayat, Kaushambi within two weeks of the receipt of a certified copy of this order.
(b) The place identified for the purpose must be motorable and nearest to the national highway.
(c) The construction of the trauma centre must be started without any unnecessary delay."
A bare perusal of the aforesaid order clear indicate that in that petition the dispute before this Court was regarding establishment of Trauma Centre at Village Dorma or at Village Narsinghpur Kachhuwa. After considering the same the directions were issued by the Hon'ble Division Bench.
Under such circumstances, it is very much clear that this petition as well as the subsequent petition has not been filed by the petitioners and by learned counsel Sri K.C. Mishra, who is aware about the dispute involved in the present case with clean hands. Once it was in his knowledge that decision of shifting Trauma Centre had already been taken and he has also challenged the same but still he filed a subsequent public interest litigation (PIL No. 4813 of 2018) with all knowledge without disclosing the aforesaid facts.
On 9.10.2018 following order was passed:-
"The contention of the learned counsel for the petitioner is that earlier a Trauma Centre was to be set up at Village Dorma and in the year 2014 the inauguration was carried out, however, now the place of setting up of the Trauma Centre is changed and is proposed to be constructed at Village Narsinghpur.
Learned counsel for the petitioner has submitted that the proposed land where the Trauma Centre is going to be setup is having about 41 green trees, which should not be removed by the authorities.
Matter requires consideration.
As prayed by learned Standing Counsel, two weeks time is allowed to file the counter affidavit. One week thereafter is allowed to the petitioner for filing rejoinder affidavit.
List this petition on 31st October, 2018.
The respondents are restrained to cut any of the trees standing on the plot in question at Village Narsinghpur, which is the proposed land for construction of Trauma Centre."
On 2.11.2018 following order was passed:-
"Counter affidavit filed today on behalf of the respondent nos. 2, 3 and 4 is taken on record.
Learned counsel for the petitioner prays for and is granted ten days time to file rejoinder affidavit.
Put up in the additional cause list on 20.11.2018.
In the meantime, learned Standing Counsel may seek further instruction from the forest department as to whether shifting of existing trees is possible or not."
On 20.11.2018 following order was passed:-
"A prayer for adjournment is being made by Sri K.C. Mishra, learned counsel for the petitioner.
Learned Standing Counsel has produced a copy of instructions dated 19.11.2018. The copy of instructions is returned to learned Standing Counsel.
Learned Standing Counsel submits that in view of the urgency of the project, some early dates may be fixed in the matter.
Put up this case in the additional cause list on 26.11.2018.
A copy of the instructions has been supplied to learned Counsel for the petitioner. The case is fixed in the additional cause list with the understanding that the case will be argued and no unnecessary adjournment under ordinary circumstances will be granted."
It is also reflected from the order-sheet that earlier the case was being adjourned either on adjournment made by Sri K.C. Mishra, learned counsel for the petitioner or on his illness slip, therefore, it is very much clear that there was deliberate attempt to keep this petition pending and that the same may not be disposed of.
Vide order dated 2.11.2018 learned Standing Counsel was directed to seek further instruction from the Forest Department as to whether shifting of existing trees is possible or not in view of the assertions made in the petition that the green trees are being cut and therefore, the environment is adversely affected.
Vide order dated 9.10.2018 the respondents were restrained to cut any of the trees standing on the plot in village Narsinghpur. It is, therefore, reflected that some kind of personal or mala fide object is operating behind this public interest litigation, which, infact, is not a genuine public interest litigation. This is clearly an abuse of process of law with full knowledge.
In view of the order dated 21.11.2018 affidavit of Sub Division Officer, Forest Department, Kaushambi was filed, which was duly served on Sri K.C. Mishra, learned counsel appearing for the petitioner on 12.12.2018. The forest department has given a categorical report dated 15.11.2018 that 16 trees, which are liable to be cut for the purpose of constriction of Trauma Centre, can be shifted by the side of boundary walls and plantation on 150 trees is also proposed on the land reserved alongwith the boundary line of the Trauma Centre.
An affidavit was filed on behalf of the Forest Department and a copy whereof was served on Sri K.C. Mishra, learned counsel for the petitioner on 12.12.2018 still he did not point out this fact regarding shifting of Trauma Centre or shifting of trees etc. before Hon'ble Division Bench on 14.12.2018 on which date the aforesaid order was passed by the Hon'ble Division Bench.
In such view of the matter, present petition stands dismissed.
However, office is directed that the record of this petition be connected with PIL No. 4813 of 2018 (Soni Devi vs. State of U.P. and others) on the date fixed i.e. 18.1.2019.
At this stage, learned counsel for the petitioner states that he shall withdraw the aforesaid PIL No. 4813 of 2018 on the next date fixed before Hon'ble Division Bench.
Be that as it may, it is the choice of the petitioner and / or of the counsel as his personal conduct is also reflected.
This Court was inclined to refer the matter to the Bar Council as there is deliberate omission on the part of the counsel for the petitioner in filing these two petitions and there is concealment of facts well within the knowledge of the counsel in the second petition, however, since second petition is still pending, I do not find proper to pass any such order in this petition.
Since the other petition is pending before the Hon'ble Division Bench, therefore, I am not imposing any cost in the present petition.
Office is directed to place a copy of this order on the record of Public Interest Litigation No. 4813 of 2018.
Present petition stands dismissed with the observations as made above.
Order Date :- 19.12.2018 Lalit Shukla