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2019 DIGILAW 151 (UTT)

Ajay Gautam v. Union of India

2019-03-01

SUDHANSHU DHULIA

body2019
JUDGMENT : 1. This public interest litigation was filed by the petitioner, who claims to be a religious teacher. The petition was for protection and rights of the pilgrims, who come for “Char Dham Yatra” in Uttarakhand. Allied with the said issue was another issue raised by the petitioner, which was that the last rites of the pilgrims who died in the “Kedar Valley” in 2013 floods, have not been performed properly and that too be done as well. 2. The Division Bench of this Court taking cognizance of the matter finally disposed of the Public Interest Litigation with certain directions to the State Government, which run from Directions “A” to “Q”. These directions were in the nature of mandamus to the State Government such as for constitution of Five Special Investigation Teams from the officers of National Disaster Relief Force, etc. to find out the dead bodies and perform the last rites of persons, who died in the tragedy, the direction to the State Government to prepare a development/master plan of “Char Dham Yatra”, etc., was also given, amongst other directions. 3. According to the State Government, they have complied with the most of the directions, but the directions contained in Direction “J” and “N” were the directions which could not be complied with and which were not possible to comply with. 4. Directions “J” and “N” read as under: “J. The State Government is directed to construct emergency stores at safer and suitable places enroute to Char-Dhams and Hemkund Sahib at a distance of 10 kilometers each. The stores shall be equipped with blankets, sheets, ration, Gas, water, condensed milk in sufficient quantity. State Disaster Rescue Force should be deployed in these stores throughout day and night at the time of Yatras. N. The State Government is also directed to construct shrines between the Govind Ghatt and Govind Dham.” 5. The State Government filed a Special Leave Petition against the said order dated 19.11.2016. Definitely, in the Special Leave Petition, the State Government had said as under:- “It is respectfully submitted that most of the mandatory direction issued by the Hon’ble High Court has been already complied with and necessary compliance orders have been issued by the respective authorities who are authorized to pass such order/directions on behalf of the state government and some of the mandatory directions are in process of implementation. The present petitioner is only aggrieved by the mandatory directions No. (J) and (N). Therefore, the petitioner is challenging the impugned order only to the said directions.” 6. The Hon’ble Apex Court, however, allowed the appeal by setting aside the order impugned. The order dated 16.03.2018 passed by the Hon’ble Apex Court reads as under: “Leave granted. Permission to appear and argue in person is granted. Heard Mr. Vishwa Pal Singh, learned counsel appearing for the appellants; Mr. Colin Gonsalves, learned senior counsel appearing for respondent nos. 1 and 7 in civil appeal arising out of S.L.P. (C) No. 801 of 2018; and Mr. Ajay Gautam, respondent no. 1-in-person in civil appeal arising out of S.L.P. (C) No. 799 of 2018. Having heard learned counsel for the appearing parties and the respondent-in-person, we are of the considered opinion that the directions of the nature issued by the High Court should not have been issued in a Public Interest Litigation. We will be failing in our duty if we do not note the submission of Mr. Gonsalves that certain directions may withstand scrutiny. Respondent appearing in person submitted that certain directions have been complied with by the State. We are not inclined to get into that. However, if the respondents make out a specific case for interference before the High Court which comes within the domain of judicially manageable and/or permissible standards, it may pass appropriate orders. Resultantly, the appeals are allowed and the impugned orders are set aside. There shall be no order as to costs. C.A. No. 2899/2018 @ S.L.P. (C) No. 798/2018 Leave granted. Despite service of notice, no one has appeared on behalf of the sole respondent. Having heard learned counsel for the appellants, we are of the considered that the directions of the nature issued by the High Court should not have been issued in a Public Interest Litigation. Resultantly, the appeal is allowed and the order is set aside. There shall be no order as to costs.” 7. Admittedly, the order impugned before the Hon’ble Apex Court was a final order of this Court, in which directions were from “A” to “Q”. The entire order has been set aside by the Hon’ble Apex Court. It is undoubtedly true that while doing so, the Hon’ble Apex Court has also observed as under: “Leave granted. Admittedly, the order impugned before the Hon’ble Apex Court was a final order of this Court, in which directions were from “A” to “Q”. The entire order has been set aside by the Hon’ble Apex Court. It is undoubtedly true that while doing so, the Hon’ble Apex Court has also observed as under: “Leave granted. Despite service of notice, no one has appeared on behalf of the sole respondent. Having heard learned counsel for the appellants, we are of the considered that the directions of the nature issued by the High Court should not have been issued in a Public Interest Litigation. Resultantly, the appeal is allowed and the order is set aside. There shall be no order as to costs.” 8. After the said order of the Hon’ble Apex Court, the applicant i.e. the petitioner before this Court moved an application that since there are directions from the Hon’ble Apex Court that the matter can still continue and further directions be given. 9. The Division Bench of this Court took up the matter, but there was of a difference of opinion between the to Hon’ble Judges. Whereas Hon’ble Justice Rajeev Sharma was of the opinion that the Court can re-look into the matter, and therefore passed the following order: “Mr. Tapan Singh (Amicus Curiae) present for the writ petitioner. Mr. Ajay Gautam, petitioner, present in person. Mr. K. N. Joshi, Deputy Advocate General present for the State. This Court has pronounced the judgment in WPPIL No. 85 of 2014 on 19th November, 2016 whereby certain directions were issued to the State Government. Against the judgment dated 19th November, 2016, the State Government has filed Special Leave Petition before the Hon’ble Supreme Court. The Hon’ble Apex Court, while allowing the appeal(s), has made the following observations: - “We will be failing in our duty if we do not note the submission of Mr. Gonsalves that certain directions may withstand scrutiny. Respondent appearing in person submitted that certain directions have been complied with by the State. We are not inclined to get into that. However, if the respondents make out a specific case for interference before the High Court which comes within the domain of judicially manageable and/or permissible standards, it may pass appropriate orders.” Petitioner Mr. Ajay Gautam submits that the Court may have a re-look into the directions issued by this Court. We are not inclined to get into that. However, if the respondents make out a specific case for interference before the High Court which comes within the domain of judicially manageable and/or permissible standards, it may pass appropriate orders.” Petitioner Mr. Ajay Gautam submits that the Court may have a re-look into the directions issued by this Court. He also submits that in certain areas construction is to be made by the Central Agencies. This Court leaves it open to the Central Government to take action in this matter as per its own discretion. However, before we proceed with the matter further, we request the Chief Secretary to the State of Uttarakhand to assist the Court, on or before the next date of listing, to point out certain directions which cannot be complied with by the State Government due to policy matter or financial crunch, and/or the directions which can be complied with by the State Govt. to bring the directions within the judicially manageable and/or permissible standards. List on 15th May, 2018 for further orders.” 10. Hon’ble Justice Alok Singh, however, was of the opinion that since the earlier order passed by the Division Bench has already been set aside and the matter has not been remanded, it cannot be reopened. Therefore, the application for reopening the matter was rejected by Hon’ble Justice Alok Singh, by passing the following orders : “Mr. Tapan Singh, Amicus Curiae in the matter. Mr. Ajay Gautam, petitioner, in person. Mr. K.N. Joshi, Deputy Advocate General for the State of Uttarakhand. Present PIL was decided by this Court on 19.11.2016. Feeling aggrieved, State of Uttarakhand has filed Civil Appeal Nos. 2899, 2900 and 2901 of 2018 before the Hon’ble Supreme Court against the judgment dated 19.11.2016. The three-Judge Bench of Hon’ble Supreme Court headed by Hon’ble the Chief Justice allowed the appeals vide order dated 16.03.2018 and set aside impugned orders. The Hon’ble Supreme Court has observed as under: CA Nos. 2900 & 2901 of 2018 “We will be failing in our duty if we do not note the submission of Mr. Sonsalves that certain directions may be withstand scrutiny. Respondent appearing in person submitted that certain directions have been complied with by the State. We are not inclined to get into that. 2900 & 2901 of 2018 “We will be failing in our duty if we do not note the submission of Mr. Sonsalves that certain directions may be withstand scrutiny. Respondent appearing in person submitted that certain directions have been complied with by the State. We are not inclined to get into that. However, if the respondents make out a specific case for interference before the High Court which comes within the domain of judicially manageable and/or permissible standards, it may pass appropriate order. Resultantly, the appeals are allowed and the impugned orders are set aside.” CA No. 2899 of 2018 “Having heard learned counsel for the appellants, we are of the considered that the directions of the nature issued by the High Court should not have been issued in a Public Interest Litigation. Resultantly, the appeal is allowed and the impugned orders are set aside.” By means of present MCC application, applicant has once again approached this Court seeking more or less same reliefs, which were refused by the Hon’ble Supreme Court. The Hon’ble Supreme Court has not remanded the matter but has specifically observed that it is of the considered view that such directions should not have been issued in a PIL. Therefore, I am of the view that no direction can be issued on the present application. I am not in agreement with the view taken by my respected Brother.” 11. There being a difference of opinion between two Hon’ble Judges, the Hon’ble Chief Justice under Chapter VIII Rule 3 of the Allahabad High Court Rules, as applicable to Uttarakhand under the Uttar Pradesh Reorganization Act, 2000, has referred the matter to me vide order dated 19.02.2019. 12. Heard Mr. Tapan Singh, learned Amicus Curiae for the petitioner and Mr. Anurag Bisaria, learned State Counsel. 13. After perusal of the order of the Division Bench dated 19.11.2016 and the order of the Hon’ble Apex Court dated 16.03.2018 and the two orders passed by the Hon’ble Judges of this Court dated 07.05.2018, I am of the opinion that the present PIL cannot continue in its present form. I say this because the Hon’ble Ape Court has set aside the order passed by the Division Bench of this Court dated 19.11.2016. I say this because the Hon’ble Ape Court has set aside the order passed by the Division Bench of this Court dated 19.11.2016. Although specifically the State Government was aggrieved only by the directions contained in “J” and “N”, which they have stated in Special Leave Petition, nevertheless, the Hon’ble Apex Court has come to the conclusion that the said directions “should not have been issued in a Public Interest Litigation”. It has allowed the appeal and set aside the order dated 19.11.2016. While doing so, though the Hon’ble Apex Court has made certain observation, which would mean that in case the private respondent i.e. the petitioner before this Court brings a case before the High Court within the domain of “judicially manageable and/or permissible standards”, it may pass appropriate orders. Therefore on the same issue as was being agitated by the petitioner in the PIL, he is now limited to the areas which are “judicially manageable and/or permissible standards”. Though apparently these observations of the Hon’ble Apex Court, which give liberty to the petitioner to bring to this Court certain issues, which are within the domain of judicially manageable or permissible standards, and therefore the order of the Hon’ble Apex Court does leave a window open to the petitioner, to approach this Court again, within the confines of the observations of the Hon’ble Apex Court, yet it can only be done by a separate petition, as the final orders passed by the Court in a PIL have already been set aside and secondly this has been done with the observations that “directions of the nature issued by the High Court should not have been issued in a Public Interest Litigation”. 15. Therefore, in my opinion, the present PIL must be closed.