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2014 DIGILAW 1067 (GUJ)

Agnes Vaghela v. Collector & District Magistrate

2014-10-07

R.P.DHOLARIA, V.M.SAHAI

body2014
JUDGMENT : R.P. Dholaria, J. The present Writ Petition in the nature of Public Interest Litigation (PIL) has been filed by the petitioner seeking direction upon the Respondent Nos. 1 to 4 to implement the Order dated 29.09.2009 passed by the Hon'ble Supreme Court in Special Leave to Appeal (Civil) No. 8519 of 2006 wherein the Hon'ble Supreme Court has clearly directed that henceforth no unauthorized construction shall be carried out or permitted in the Temple, Church, Mosque or Gurudwara, etc. on public streets, public parks or other public places, etc. In order to ensure compliance of its directions, the Hon'ble Supreme Court has further pleased to direct all the District Collectors as well as District Magistrates/Deputy Commissioners in-charge of the Districts in the Country to ensure that there is total compliance of the order passed by the Hon'ble Supreme Court. 2. The facts leading to filing of this petition, briefly stated, are as under:- 2.1 In Special Leave to Appeal (Civil) No. 8519 of 2006, the Hon'ble Supreme Court, vide its Order dated 29.09.2009, issued directions that henceforth no unauthorized construction shall be carried out or permitted in the Temple, Church, Mosque or Gurudwara, etc. on public streets, public parks or other public places, etc. In order to ensure compliance of its directions, the Hon'ble Supreme Court has further pleased to direct all the District Collectors as well as District Magistrates/Deputy Commissioners in-charge of the Districts in the Country to ensure that there is total compliance of the above order. Subsequently, the Hon'ble Supreme Court directed all the State Government to formulate policy in respect of encroachments of religious nature on public places. 2.2 In response thereto, the Government of Gujarat, vide its Resolution dated 22/01/2010 issued necessary guidelines/directions in the matter and constituted various Committees to deal with the issue of removal of encroachment of religious nature. 2.3 The petitioner, during her visit to the Church at Loteshwar Bhagol in Anand District, noticed that a temple was being constructed adjacent to the compound wall of the Church and the construction was being put up by the respondent no.5 on open plot of land forming part of a road. The petitioner took up the matter with various authorities but all in vain. Therefore, the petitioner had filed a Special Civil Application No. 1195 of 2013. The petitioner took up the matter with various authorities but all in vain. Therefore, the petitioner had filed a Special Civil Application No. 1195 of 2013. However, vide Order dated 12.02.2013, permission was granted to withdraw the said petition with a liberty to file Public Interest Litigation in the matter. Therefore, the petitioner has filed this Writ Petition in the nature of Public Interest Litigation (PIL) in order to ensure that the Government authorities at Anand take appropriate action to remove the aforesaid encroachment. 2.4 The petitioner, in para 6.2 of the present Writ Petition, asserted that this Court has the jurisdiction to pass orders to ensure compliance of the directions of the Hon'ble Supreme Court and also to take action under the Contempt of Courts Act against the persons/authorities responsible for disregarding the directions of the Hon'ble Supreme Court. In this regard, the petitioner has placed reliance on a decision of Full Bench of this Court in R.P. Vaghela v. State of Gujarat, 2002 (1) GLR 586. 2.5 The petitioner has therefore, filed this present Writ Petition in the nature of Public Interest Litigation (PIL) seeking following reliefs :- "[A] The Hon'ble Court be pleased to direct the Collector, Anand [respondent] to submit a report about the unauthorized construction of religious nature that have been made in public street, public place etc. in Anand district after the Home Department Resolution dated-22/01/2010 [Annexure-B]. This Hon'ble Court be further pleased to issue similar direction to the Chief Officer, Anand Municipality to submit report pertaining to the municipal limits of Anand. On receipt of the reports this Hon'ble Court be further pleased to take such action as deemed fit in the matter. [B] This Hon'ble Court be pleased to direct the Collector, Anand [respondent 1], the Chief Officer, Anand Municipality [respondent no.2] and the Secretary, Home Department, Government of Gujarat [respondent no.4] to ensure that there is total compliance of the Home Department, Government of Gujarat, Resolution dated-22/01/2010 [Annexure B]. [C] This Hon'ble Court be pleased to direct the respondent no.1 Collector, Anand and the respondent no.2 Chief Officer, Anand Municipality to demolish the unauthorized structure of religious nature made on the land forming part of the Loteshwar Bhagol road at Anand. [C] This Hon'ble Court be pleased to direct the respondent no.1 Collector, Anand and the respondent no.2 Chief Officer, Anand Municipality to demolish the unauthorized structure of religious nature made on the land forming part of the Loteshwar Bhagol road at Anand. [D] Pending admission, hearing and disposal of this petition, the Hon'ble Court be pleased to direct the Collector, Anand [respondent 1] and the Chief Officer, Anand Municipality [respondent no.2] to forthwith restrain the Samast Harijan Panch or any other person from putting up any further construction on the unauthorized structure made on the land forming part of the Loteshwar Bhagol road at Anand. The Hon'ble Court be further pleased to direct the Collector, Anand [respondent 1] and the Chief Officer, Anand Municipality [respondent no.2] to forthwith restrain the Samast Harijan Panch, Loteshwar Bhagol not to make use of the structure for religious or any other purpose. [E] The Hon'ble Court be pleased to pass such further and other orders as deemed fit in the interest of justice." 3. We have heard Mr. Shashikant Parmar, learned advocate for the petitioner, Mr. Parth Bhatt, learned AGP for respondent No. 1, Mr. Deepak P. Sanchela, learned advocate for the respondent No. 2, Mr. Rasesh H.Parikh, learned advocate for the respondent No. 5. 4. We have heard the learned Counsel for the parties at length and perused the material made available to us on record. 5. From the affidavit-in-reply filed on behalf of the respondent No. 5, it is noticed that one Regular Civil Suit No. 238/2012 was filed before the Court of learned Principal Senior Civil Judge, Anand, inter-alia, contending all the issues raised in the present Writ Petition. It is further noticed that the petitioner in her affidavit-in-rejoinder contended the aforesaid Regular Civil Suit was filed on behalf of the Catholic Church by one Fr.Xavier Amirthan and the same pertains to the land/construction in question. However, at the time of filing this present Writ Petition, she was not aware about the aforesaid suit. We are of the opinion that a degree of precision and purity in presentation is a sine qua non for a petition filed under the aegis of public interest litigation. It is expected that before filing such public interest litigation, one should carry out the basic research whether the issues raised in the petition is lis pendent or not. We are of the opinion that a degree of precision and purity in presentation is a sine qua non for a petition filed under the aegis of public interest litigation. It is expected that before filing such public interest litigation, one should carry out the basic research whether the issues raised in the petition is lis pendent or not. One who files such petition cannot plead ignorance thereafter. 6. The very object of any Public Interest Litigation has to be to enforce a right and/or to redress a wrong which affects public at large and the underline object of all such litigations has to be to assure that constitutional or statutory rights are not denied to the public at large and that the State, either of its own volition or due to its passivity and inaction does not become an instruments of subverting the rights of the people. Judiciary, being the sentinel of constitutional statutory rights of citizens has a special role to play in the constitutional scheme. It can review legislation and administrative actions or decisions on the anvil of constitutional law. However, one must be careful to see that the petitioner who approaches it is acting bona fide and not for personal gain or any other oblique consideration. There may be cases were such Public Interest Litigation may affect the right of persons not before the Court and therefore in shaping the relief one must invariably take into account its impacts on those interests with great caution. 7. The Hon'ble Apex Court in Ashok Kumar Pandey v. State of W.B. and Ors., AIR 2004 SC 280 observed in para 4 as under : "4. When there is material to show that a petition styled as a public interest litigation is nothing but a camouflage to foster personal disputes, said petition is to be thrown out. 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 "private interest litigation" or "politics interest litigation" or the latest trend "paise income litigation". If not properly regulated and abuse averted it becomes also a tool in unscrupulous hands to release vendetta and wreck vengeance, as well. If not properly regulated and abuse averted it becomes also a tool in unscrupulous hands to release vendetta and wreck vengeance, as well. There must be real and genuine public interest involved in the litigation and not merely an adventure of knight errant or poke ones into for a probe. It cannot also be invoked by a person or a body of persons to further his or their personal causes or satisfy his or their personal grudge and enmity. Courts of justice should not be allowed to be polluted by unscrupulous litigants by resorting to the extraordinary jurisdiction. 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. These aspects were highlighted by this Court in The Janta Dal case (supra) and Kazi Lhendup Dorji v. Central Bureau of Investigation, (1994 Supp (2) SCC 116). A writ petitioner who comes to the Court for relief in public interest must come not only with clean hands like any other writ petitioner but also with a clean heart, clean mind and clean objective. See Ramjas Foundation v. Union of India, ( AIR 1993 SC 852 ) and K.R. Srinivas v. R.M. Premchand, ( 1994 (6) SCC 620 )." The Hon'ble Apex Court further observed in para 14 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. 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." 8. The Hon'ble Apex Court in Neetu v. State of Punjab and Ors., AIR 2007 SC 758 observed in para-10 as under : "10. 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 allowed to 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 consideration. 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." The Hon'ble Apex Court further observed in para 12 as under : "12. 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." The Hon'ble Apex Court further observed in para 12 as under : "12. When a particular person is the object and target of a petition styled as PIL, the court has to be careful to see whether the attack in the guise of public interest is really intended to unleash a private vendetta, personal grouse or some other mala fide object." 9. When we revert to the facts of the present case then the conclusion is obvious that this case is a classic case of the abuse of the process of the Court. We decline to entertain this Writ Petition on following three counts:- (i) This Writ Petition has been filed seeking direction upon the Respondent Nos. 1 to 4 to implement the Order dated 29.09.2009 passed by the Hon'ble Supreme Court in Special Leave to Appeal (Civil) No. 8519 of 2006 wherein the Hon'ble Supreme Court has clearly directed that henceforth no unauthorized construction shall be carried out or permitted in the Temple, Church, Mosque or Gurudwara, etc. on public streets, public parks or other public places, etc. In order to ensure compliance of its directions, the Hon'ble Supreme Court has further pleased to direct all the District Collectors as well as District Magistrates/Deputy Commissioners in-charge of the Districts in the Country to ensure that there is total compliance of the aforesaid order. Subsequently, the Hon'ble Supreme Court directed all the State Government to formulate policy in respect of encroachments of religious nature on public places. In response thereto, the Government of Gujarat, vide its Resolution dated 22/01/2010 issued necessary guidelines/directions in the matter and constituted various Committees to deal with the issue of removal of encroachment of religious nature. In our opinion, once the Hon'ble Supreme Court is seized of the matter and has issued various directions, it would not be appropriate for us to again issue such directions. The petitioner is at liberty to take recourse in accordance with law but to seek again directions for the same subject matter from this Court cannot be entertained in view of the sufficient directions issued by the Hon'ble Supreme Court. The petitioner is at liberty to take recourse in accordance with law but to seek again directions for the same subject matter from this Court cannot be entertained in view of the sufficient directions issued by the Hon'ble Supreme Court. (ii) The petitioner, in para 6.2 of the present Writ Petition, asserted that this Court has the jurisdiction to pass orders to ensure compliance of the directions of the Hon'ble Supreme Court and also to take action under the Contempt of Courts Act against the persons/authorities responsible for disregarding the directions of the Hon'ble Supreme Court as held in R.P. Vaghela v. State of Gujarat, 2002 (1) GLR 586. Thus, the petitioner is fully aware that action can be taken under the Contempt of Courts Act, however, she choose to file this present Writ Petition in the nature of Public Interest Litigation. The learned AGP has brought to our notice that for similar issue, contempt proceedings are going on before the Bench taking up such matters in respect of removal of encroachment of religious nature in Ahmedabad. Thus, the petitioner has adequate remedy open to it for taking due recourse under the law. This Writ Petition is thus not entertained as alternative remedy is available to the petitioner. (iii) One Regular Civil Suit No. 238/2012 is already filed before the Court of learned Principal Senior Civil Judge, Anand, contending the issues raised in the present Writ Petition and the same is pending. However, without going into the deep rooted question as to why the petitioner choose not to mention such relevant details in her petition, we decline to entertain this Writ Petition filed by the petitioner as alternative remedy has already been availed. However, we are conscious of the fact that, it shall not be construed as if we have expressed any opinion on the merits of the proceedings stated to be pending. 10. In view of the aforesaid factual aspect as well as factual position, this Writ Petition fails and is, accordingly, stands dismissed. Notice stands discharged. Interim relief, if any, granted earlier stands vacated. However, no order as to costs. Writ petition dismissed.