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2023 DIGILAW 321 (UTT)

Hamza v. State of Uttarakhand

2023-05-17

RAKESH THAPLIYAL, VIPIN SANGHI

body2023
JUDGMENT : Rakesh Thapliyal, J. The present Public Interest Litigation has been preferred by the six petitioners, who are the residents of District Haridwar, with the following reliefs:- “(1) Issue a writ order or direction in the nature of Mandamus directing the respondent authorities to conduct a fair and impartial inquiry regarding Dharmik Sthal were demolished/removed at the name of violation of law. (2) Issue a writ order or direction in the nature of Mandamus to Shift/Reconstruct Dharmik Sthal were demolished/removed at the name of violation of law in the compliance of G.O. Dated 17.05.2016. (3) Issue a writ order or direction in the nature of Mandamus directing the respondents not to adopt any coercive measures against any Dharmik Sthal Without Opportunity of hearing to the Parties. (4) Issue a writ order of direction before removal/demolish any dharmik Sthal Publish Public Notice in nationalized Paper. (5) Issue a writ or direction in the nature of mandamus not to adopt any coercive measure against any Dharmik Sthal which is protected by G.O Dated 17.05.2016 till the pendency of PIL.” 2. The petitioners submit in paragraphs 5, 6, 9 and 10 that the alleged dharmik sthal is a religious place and four to five hundred years old. It is claimed to be an ancient place and is a WAQF property and the District Magistrate is the caretaker of the said dharmik sthal. Without giving opportunity of hearing to the affected parties, the said dharmik sthal has been demolished. Neither any notice, nor any information was issued by the concerned authority. Even no publication was made in the national newspaper and, not only this, even no notice has been issued to the WAQF board prior to demolition. 3. The petitioners further submits that the petitioner no. 2 Ahsan Ansari sought information under the Right to Information Act, which is enclosed as Annexure-3 to the petition and the RTI information was supplied by the Public Information Officer of Forest Division, Haridwar. The petitioners further contend that no videography and photography was done of the demolition, which should have been kept on record. In paragraph 19 of the petition, the petitioners give the reference of WPMS No. 1323 of 2023, and further contend that the said place is covered by the Government Order dated 27.05.2016. Despite this, by illegal method, the said religious place was allegedly demolished. 4. In paragraph 19 of the petition, the petitioners give the reference of WPMS No. 1323 of 2023, and further contend that the said place is covered by the Government Order dated 27.05.2016. Despite this, by illegal method, the said religious place was allegedly demolished. 4. The petitioners further contend that the demolition of the dharmik sthal is wholly illegal, arbitrary and, as such, the said dharmik sthal be reconstructed/shifted in the light of the Government Order dated 17.05.2016 and necessary action be taken against the concerned authorities. 5. In this petition, the petitioners enclosed the extract of the newspaper, and at page nos. 31, 32, 33 and 34, the petitioners enclosed certain photographs, which, it appears from the photographs, were taken on 03.05.2023 at 12:07 a.m. from GPS map camera and from these photographs, it appears that the photographs relate to the alleged religious place namely “Hazrat Chandan Waley Peer Baba”. 6. This PIL came up before this Court for hearing as fresh on 17.05.2023 and during the course of argument, Mr. C.S. Rawat, the Chief Standing Counsel informed the Court that two writ petitions i.e. WPMS No. 1323 of 2023 and WPMS No. 1421 of 2023 were filed by Mr. Bilal Ahmad, the learned counsel for the petitioners in the present PIL as well, and he also produced the copy of both the writ petitions. 7. The Writ Petition (M/S) No. 1323 of 2023 was dismissed as withdrawn by the coordinate bench of this Court vide order dated 11.05.2023. Similarly, another writ petition i.e. WPMS No. 1421 of 2023 was also dismissed as withdrawn on 16.05.2023. 8. In WPMS No. 1323 of 2023, Julfiqar (Male) aged about 40 years, S/o Akhtar, R/o Peeth Bazar Mohalla Jhadan, Jawalapur, District Haridwar, Mutwali/caretaker, Hajrat Chandan Peer Baba Mazar near Kankhal Road, Arya Nagar, Jwalapur, District Haridwar was the petitioner and the affidavit of this petitioner was sworn on 02.05.2023 at 08:55 a.m. The prayer as sought in WPMS No. 1323 of 2023 is being extracted herein as below:- “(1) Issue a writ order or direction in the nature of Certiorari quashing the impugned notice dated 02.05.2023 (annexure no-3) issued by respondent no. 4 and order passed by respondent no. 1. 4 and order passed by respondent no. 1. (2) Issue a writ order or direction in the nature of Mandamus directing the respondents not to adopt any coercive measures against the petitioner in pursuance of impugned notice dated 02.05.2023 issued by respondent by respondent no. 4.” 9. So far as WPMS No. 1421 of 2023 is concerned, this petition was filed by the same person, who filed WPMS No. 1323 of 2023 and the affidavit of the said petition is shown to be sworn on 07.05.2023 at 10:52 a.m. In this petition, the prayer, as sought is being extracted hereinbelow:- “(1) Issue a writ order or direction in the nature of Mandamus to Shift/Reconstruct Said Dharmik Sthal in the compliance of G.O. Dated 17.05.2016. (Annexure no.-1). (2) Issue a writ order or direction in the nature of Mandamus directing the respondents not to adopt any coercive measures against any Dharmik Sthal Without Opportunity of hearing to the parties. 10. The order passed by the coordinate bench on 11.05.2023 in WPMS No. 1323 of 2023 is being quoted below:- “Heard Mr. Bilal Ahmed, learned counsel for the petitioner, Mr. C.S. Rawat, learned Chief Standing Counsel assisted by Mr. Suyash Pant, learned Standing Counsel for the respondent nos.1 and 2 and Mr. Sandeep Kothari, learned counsel for the respondent nos.3 and 4. 2. Mr. Sandeep Kothari, Advocate, submitted that property in-question has been removed, therefore, the present Writ Petition has become infructuous. 3. After the said submissions, Mr. Bilal Ahmed, Advocate, requested to permit the petitioner to withdraw the present writ petition. 4. Present Writ Petition (M/S No.1323 of 2023) is dismissed as withdrawn.” 11. Similarly, the order passed by the coordinate bench of this Court dated 16.05.2023 in WPMS No. 1421 of 2023 is also being quoted hereinbelow:- “Mr. Bilal Ahmed, Advocate for the petitioner. Mr. C.S. Rawat, Chief Standing Counsel with Mr. Ghanshyam Joshi, Standing Counsel for the State/respondent nos. 1 and 2. Mr. Sandeep Kothari, Advocate for respondent nos.3 and 4. Mr. Ahrar Baig, Advocate holding brief of Ms. Nishat Intezar, Advocate for the respondent no.5. At 2:00 PM, the matter is again taken up. Bilal Ahmed, Advocate for the petitioner. Mr. C.S. Rawat, Chief Standing Counsel with Mr. Ghanshyam Joshi, Standing Counsel for the State/respondent nos. 1 and 2. Mr. Sandeep Kothari, Advocate for respondent nos.3 and 4. Mr. Ahrar Baig, Advocate holding brief of Ms. Nishat Intezar, Advocate for the respondent no.5. At 2:00 PM, the matter is again taken up. At the very outset, learned Chief Standing Counsel would submit that the proceedings, as per the Uttarakhand Policy for Removal, Relocation and Regularization of Unauthorized Religious Structures on Public Streets, Public Parks and other Public Places, 2016 (“the Policy”), has been done before the demolition of the Dharmik Isthal. He tendered some proceedings drawn on 04.05.2023 by some officers including Sub-Divisional Magistrate, Haridwar. The Court does not want to scrutinize those proceedings to examine as to whether it has been done in accordance with the Policy or not. A statement has been given on behalf of the State that, in fact, a Public Interest Litigation (“PIL”) has already been filed in the matter and the issue involved in the instant petition is also subject matter in the PIL. Therefore, the instant petition may not be entertained. Learned counsel for the petitioner seeks permission to withdraw the writ petition. The permission is accorded. The writ petition is dismissed as withdrawn.” 12. In the present Public Interest Litigation, though, the reference has been made of WPMS No. 1323 of 2023 in paragraph 19, but, there is no disclosure of the order passed in the said petition. Apart from this, in the present PIL, there is no reference of another writ petition i.e. WPMS No. 1421 of 2023, and this fact was brought to the notice of this Court by Mr. C.S. Rawat, learned Chief Standing Counsel. 13. The most important aspect, as pointed out by Mr. C.S. Rawat, learned Chief Standing Counsel is that both the earlier writ petitions i.e. WPMS No. 1323 of 2023 and WPMS No. 1421 of 2023 were filed by the same counsel, who has filed the present PIL, and, therefore, he was personally aware of the earlier petitions filed by him in the name of different persons, and the fate of those petitions. It was the duty of the counsel to disclose about the filing of WPMS No. 1421 of 2023 and the orders passed therein, which he deliberately suppressed. It was the duty of the counsel to disclose about the filing of WPMS No. 1421 of 2023 and the orders passed therein, which he deliberately suppressed. Not only this, though the counsel for the petitioner gives a reference of WPMS No. 1323 of 2023 in the present petition, but there is no disclosure in the present petition of the order passed by the coordinate bench of this Court dated 11.05.2023 in the said petition. This appears to be a deliberate suppression, as disclosure of the same would have shown that the petitioner in that case had unconditionally withdrawn the petition after advancing submissions, evidently, because the Court was not inclined to entertain the same, and was inclined to dismiss the same. 14. Even otherwise, in the entire petition, which has been preferred by the five petitioners, there is no particular of the said alleged dharmik sthal “Hazrat Chandan Waley Peer Baba” and a vague statement has been made that the said dharmik sthal is four to five hundred years old an ancient place and is registered as a WAQF property. 15. We have perused the entire writ petition, which has been preferred in the form of Public Interest Litigation, the affidavit of which has been sworn by one Hamza Rao, S/o Masdar Rao, who is the petitioner no. 1 and is aged about 20 years. Prima facie, it appears that the counsel for the petitioners in the present Public Interest Litigation deliberately suppressed the fact that earlier to the filing of the present Public Interest Litigation, two petitions were filed, and though he gave the reference of only one writ petition i.e. WPMS No. 1323 of 2023, but, he has not disclosed the order passed in WPMS No. 1323 of 2023. So far as WPMS No. 1421 of 2023 is concerned, in the entire writ petition, there is no disclosure of this WPMS No. 1421 of 2023, and even there is no disclosure in the petition about the order passed by the coordinate bench of this Court dated 16.05.2023. 16. Thus, it appears that this Public Interest Litigation has been prepared with deliberate suppression of facts, and attempt is to mislead this Court by filing successive petitions, that too without disclosure of the earlier petitions filed, and the orders passed in those petitions. 16. Thus, it appears that this Public Interest Litigation has been prepared with deliberate suppression of facts, and attempt is to mislead this Court by filing successive petitions, that too without disclosure of the earlier petitions filed, and the orders passed in those petitions. After perusing the entire record of the other two writ petitions, at this juncture, it is necessary to observe the role of the members of the Bar. 17. A lawyer is a responsible officer of the Court. It is the duty as the officer of the Court to assist the Court in properly prepared manner. He is expected to conduct himself with complete honesty and transparency. This is the sacrosanct role assigned to the Advocate. 18. The Hon’ble Apex Court in the case of O.P. Sharma Vs. High Court of Punjab and Haryana, (2011) 6 SCC 86 while dealing with the ethical standard of an Advocate, though in a different context, has observed in paragraph 38, as follows:- “38. ..... An advocate is expected to act with utmost sincerity and respect. In all professional functions, an advocate should be diligent and his conduct should also be diligent and should conform to the requirements of the law by which an advocate plays a vital role in the preservation of society and justice system. An advocate is under an obligation to uphold the rule of law and ensure that the public justice system is enabled to function at its full potential. Any violation of the principles of professional ethics by an advocate is unfortunate and unacceptable. Ignoring even a minor violation/misconduct militates against the fundamental foundation of the public justice system.” 19. The Hon’ble Apex Court in the case of Ministry of Information and Broadcasting, (1995) 3 SCC 619 observed that it is in the hands of the members of the profession to improve the quality of the service they render both to the litigants and public and to the courts and to brighten their image in the society. The perceptible casual approach to the practice of profession was not appreciated by the Court. 20. The perceptible casual approach to the practice of profession was not appreciated by the Court. 20. In view of the aforesaid pronouncement and the observation of the Hon’ble Apex Court, a lawyer is a responsible officer of the Court and it is his prime duty, being an officer of the Court, to assist the Court in a properly prepared manner and, not only this, he has to assist the Court in a fair and transparent manner and disclose all the relevant and material facts. 21. Admittedly, the present PIL and other two writ petitions are filed by the same counsel. Filing all successive petitions with suppression of other petitions is not fair on the part of the counsel for the petitioner and therefore, the counsel of the present PIL is warned to mind his conduct in future. 22. The other issue which, at this juncture, requires consideration by this Court, is with regard to the filing of the Public Interest Litigation, and in a reference to this, the two recent judgments of the Hon’ble Apex Court are being referred so, that any person before filing a Public Interest Litigation, may act with caution, and file Public Interest Litigation in a bonafide manner. 23. The first judgment is in the case of Esteem Properties Private Limited Vs. Chetan Kamble and Others, (2022) 11 SCC 661 , and the following paragraphs are very relevant, which are being reproduced hereinbelow, wherein, the Hon’ble Apex Court dealt with the issue of the filing of thousands of frivolous petitions in the form of PIL:- 27. Public Interest Litigation is not a new concept in this Court. Although the jurisprudence in this regard has matured, many claims filed in the Courts are sometimes immature. Thousands of frivolous petitions are filed, burdening the docket of both this Court and the High Courts. Noble intentions behind expanding the Court’s jurisdiction to accommodate socially relevant issues, in recent decades, have been critically analyzed. In our view, PIL litigation has had a beneficial effect on the Indian jurisprudence and has alleviated the conditions of the citizens in general. For those at the receiving end of the Court’s directions, we can only advise “C’est la vie”. 28. One of the measures this Court can adopt to ensure that frivolous or private interests are not masqueraded as genuine claims is to be cautious when examining locus standi. For those at the receiving end of the Court’s directions, we can only advise “C’est la vie”. 28. One of the measures this Court can adopt to ensure that frivolous or private interests are not masqueraded as genuine claims is to be cautious when examining locus standi. Generally, PIL, being a summary jurisdiction, has limited powers to examine the bonafides of parties. It is usually on the pleadings that the Court should take a prima facie view on the bonafides of the party. If the Court concludes that the litigation was initiated under the shadow of reasonable suspicion, then the Court may decline to entertain the claims on merits. In these cases, Courts have multiple options – such as dismissing the PIL or appointing an Amicus Curiae, if the cause espoused in the case requires the immediate attention of the Court. [refer T.N. Godavarman Thirumulpad v. Union of India. 29. In the case of Balwant Singh Chaufal, this Court held as under: (SCC p. 461, para 181) “181. We have carefully considered the facts of the present case. We have also examined the law declared by this Court and other courts in a number of judgments. 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 PIL. (4) The Courts should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL. (5) The Courts should be fully satisfied that substantial public interest is involved before entertaining the petition. (3) The Courts should prima facie verify the credentials of the petitioner before entertaining a PIL. (4) The Courts should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL. (5) The Courts should be fully satisfied that substantial public interest is involved before entertaining the petition. (6) The Courts 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 Courts 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.” 30. In Jaipur Shahar Hindu Vikas Samiti v. State of Rajasthan, (2014) 5 SCC 530 , this Court reiterated the same, specifying that the concept of public interest litigation has evolved to bring justice to people who are “handicapped by ignorance, indigence, illiteracy” and observed that Courts are required to be cautious while entertaining such litigation. 24. The another recent judgment of the Supreme Court is in the case of State of Jharkhand Vs. Shiv Shankar Sharma and Others arising out of the SLP (C) Nos. 11364 -11365 of 2022. In this judgment, the Hon’ble Apex Court after taking into consideration the earlier judgment was of the view that the 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 should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. The 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 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 Hon’ble Apex Court in the judgment, particularly, in paragraph 16 was of the view that the locus of the petitioner who initiates a PIL is therefore of extreme importance as this important form of litigation should not be abused by motivated individuals to abuse the process of the Court for their political purposes or for any other reason, but for a Public Cause. 25. It appears from the observation made above, the present PIL has been filed only in order to gain the popularity in the area, and the petitioners have not come up with clean hands and detailed particulars. Their endeavor appears to be to perpetuate an illegality by re-encroaching the land over which their encroachment has been removed. Illegal constructions should be demolished forthwith. Their construction in the name of Hazrat Chandan Waley Peer Baba’s Mazar, Kankhal Road, Jwalapur in District Haridwar was rightly demolished. 26. We have gone through the contents of the pleadings of the present PIL as well as the pleadings of the other two writ petitions, and the annexure/documents filed in all the petitions reveals that the petitioners have not approached the Court with clean hands, and there is suppression of material and relevant facts, and non-disclosure of other two writ petitions with their fate. The filing of this petition is nothing, but an abuse of the process of the Court. Further, the statements of fact, as pleaded in the petition, are very vague and not at all substantiated by anything worthwhile to be called as evidence. This Court cannot allow its process to be abuse for oblique purposes. The non-disclosure of the material facts and the past efforts by filing two petitions, which, in fact, is a mandate of the rules governing PILs, itself establishes that the petitioners of the present PIL have not approached this Court with clean hands and, in our view, such type of Public Interest Litigations are liable to be dismissed at the very threshold itself with exemplary cost. In view of the observation, as made above, the present PIL is dismissed with an exemplary cost of Rs. 1 Lakh. In view of the observation, as made above, the present PIL is dismissed with an exemplary cost of Rs. 1 Lakh. The petitioners are directed to deposit the cost of Rs. 1 Lakh, with the State Legal Services Authority, within a period of one month, and the Legal Services Authority shall utilize this amount as per the directions of this Court. 27. It is made clear that if the petitioners fail to deposit the aforesaid cost within the period as stipulated above, the District Magistrate, Haridwar may proceed to recover the same as per law and send a compliance report within the period of two months.