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2023 DIGILAW 779 (ALL)

Gajanan v. State of U. P.

2023-03-22

PRITINKER DIWAKER, SAUMITRA DAYAL SINGH

body2023
JUDGMENT : 1. Present petition styled as a public interest litigation has been filed by the petitioner describing himself to be a practicing Advocate at the civil court Bhinga, Shrawasti. He seeks direction upon the Chairman/Member Secretary, U.P. Pollution Control Board, Lucknow to take disciplinary action against private respondent nos.4 & 5 were Regional Officer, U.P. Pollution Control Board and J.R.F., U.P. Pollution Control Board respectively. Further direction has been sought for decision on the petitioner's application/representation dated 28.1.2023 filed on affidavit addressed to the Chairman, U.P. Pollution Control Board. 2. At the outset, preliminary objection has been raised by learned Standing Counsel both as to the earlier similar petition filed by the petitioner which has been dismissed and also on account of the fact that the petitioner being a practicing Advocate is not an expert in the field of pollution. He may not have filed the present petition. Present petition has been described as a colourable proceeding instituted to achieve collateral purpose. He has relied on a decision of the co-ordinate Bench of this Court in Gurmeet Singh Soni (Advocate) vs State of U.P. & Ors (P.I.L. Civil No. 11520 of 2021), decided on 7.6.2021. 3. Having heard learned counsel for the parties and having perused the record, it may be noted, the relief being sought by the petitioner is not to improve the general condition of the environment of any particular locality. Rather, it has been filed to pursue complaint made by the petitioner (in his personal capacity) against private individual who happen to be the functionaries of the U.P. Pollution Control Board. In the first place, we do not wish to make any observation as may reflect on the merits of that complaint. A citizen who may have made a complaint against an administrative authority may be permitted to pursue the same to its logical end. Administrative authorities may also remain cognizant of any such complaint and may, in deserving facts, deal with such complaints in the manner deemed appropriate. 4. In the context of writ jurisdiction, a writ of mandamus may lie where a statutory duty pre-exists and further when invoked, the authority vested with that statutory function may have either failed or refused to exercise the same. 5. That being the basic principle, the present complaint made is non-statutory. 4. In the context of writ jurisdiction, a writ of mandamus may lie where a statutory duty pre-exists and further when invoked, the authority vested with that statutory function may have either failed or refused to exercise the same. 5. That being the basic principle, the present complaint made is non-statutory. In absence of pre-existing statutory duty, no mandamus may lie so as to compel any authority to act in any particular manner. In exercise of its extra-ordinary jurisdiction of the Article 226 of the Constitution of India, the writ court may remain ever vigilant not to exceed jurisdiction and not to confer jurisdiction on government functionaries and authorities, where none pre-exists. 6. Then, in Gurmeet Singh Soni (supra), it was observed as under: "20. The Public Interest Litigation is an important jurisdiction which is exercised by the Constitutional Courts be it Supreme Court or the High Court. It has well settled that any authority which is vested or endowed with great powers, such authority must exercise the same with great caution and responsibility. 21. The Apex Court as well as the High Courts having found that large sections of the society because of extreme poverty, ignorance, discrimination and illiteracy have been denied justice for time immemorial as they have no access to justice. Predominantly, to provide access to justice to the poor, deprived, vulnerable, discriminated and marginalized section of the society, the Constitutional Courts encouraged and propelled the public interest litigation. This jurisdiction has been created and carved out by judicial creativity and craftsmanship. 22. The Apex Court in the case of Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India, reported in (1981) 1 SCC 246 in Para-62 has held as under:- "62. ... Our current processual jurisprudence is not of individualistic Anglo-Indian mould. It is broad-based and people-oriented, and envisions access to justice through ''class actions', ''public interest litigation' and ''representative proceedings'. Indeed, little Indians in large numbers seeking remedies in courts through collective proceedings, instead of being driven to an expensive plurality of litigations, is an affirmation of participative justice in our democracy. We have no hesitation in holding that the narrow concept of ''cause of action' and ''person aggrieved' and individual litigation is becoming obsolescent in some jurisdictions." (emphasis in original) 23. We have no hesitation in holding that the narrow concept of ''cause of action' and ''person aggrieved' and individual litigation is becoming obsolescent in some jurisdictions." (emphasis in original) 23. The Apex Court in the case of Bandhua Mukti Morcha v. Union of India & Ors., reported in 1984 (3) SCC 161 entertained a petition of even an unregistered association espousing the cause of over downtrodden or its members observing that cause of "little Indians" can be established/espoused by any person having no interest in the matter. In the said public interest litigation where certain workmen were living in bondage and inhuman conditions this cause was brought to the notice of the Court. The Apex Court noticed that it was not expected by the Government that it should raise preliminary objection that no fundamental rights of the petitioner or the workmen on whose behalf the petition has been filed, have been infringed. 24. The Apex Court further noted that the public interest litigation is not in the nature of adversarial litigation but it is a challenge and an opportunity to the Government and its officers to make basic human rights meaningful for the deprived and vulnerable sections of the community and to insure them social and economic justice which is the signature tune of the Constitution. 25. It is in the aforesaid backdrop that it would be seen that the concept of "person aggrieved", was diluted in context of public interest litigation which primarily have been divided in three phases. The Apex Court in the case of State of Uttranchal v. Balwant Singh Chaufal & Ors., reported in (2010) 3 SCC 402 in Para-43 of the said report have noticed the three phases of public interest litigation which is being reproduced hereinafter:- "43. In this judgment, we would like to deal with the origin and development of public interest litigation. We deem it appropriate to broadly divide the public interest litigation in three phases: -Phase I.--It deals with cases of this Court where directions and orders were passed primarily to protect fundamental rights under Article 21 of the marginalised groups and sections of the society who because of extreme poverty, illiteracy and ignorance cannot approach this Court or the High Courts. -Phase II.--It deals with the cases relating to protection, preservation of ecology, environment, forests, marine life, wildlife, mountains, rivers, historical monuments, etc. etc. -Phase II.--It deals with the cases relating to protection, preservation of ecology, environment, forests, marine life, wildlife, mountains, rivers, historical monuments, etc. etc. -Phase III.--It deals with the directions issued by the Courts in maintaining the probity, transparency and integrity in governance." 26. The Apex Court in the case of Tehseen Poonawalla vs. Union of India, reported in (2018) 6 SCC 72 had the occasions to consider what is a public interest litigation as well as it also noticed the manner in which this noble instrument which was devised by the Courts to cater to the Constitutional obligations in the interest of the public is being misused and its repercussion on the system and the relevant portion reads as under:- "96. Public interest litigation has developed as a powerful tool to espouse the cause of the marginalised and oppressed. Indeed, that was the foundation on which public interest jurisdiction was judicially recognised in situations such as those in [Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 : 1984 SCC (L&S) 389]. Persons who were unable to seek access to the judicial process by reason of their poverty, ignorance or illiteracy are faced with a deprivation of fundamental human rights. Bonded labour and undertrials (among others) belong to that category. The hallmark of a public interest petition is that a citizen may approach the court to ventilate the grievance of a person or class of persons who are unable to pursue their rights. Public interest litigation has been entertained by relaxing the rules of standing. The essential aspect of the procedure is that the person who moves the court has no personal interest in the outcome of the proceedings apart from a general standing as a citizen before the court. This ensures the objectivity of those who pursue the grievance before the court. Environmental jurisprudence has developed around the rubric of public interest petitions. Environmental concerns affect the present generation and the future. Principles such as the polluter pays and the public trust doctrine have evolved during the adjudication of public interest petitions. Over time, public interest litigation has become a powerful instrument to preserve the rule of law and to ensure the accountability of and transparency within structures of governance. Public interest litigation is in that sense a valuable instrument and jurisdictional tool to promote structural due process. 97. Over time, public interest litigation has become a powerful instrument to preserve the rule of law and to ensure the accountability of and transparency within structures of governance. Public interest litigation is in that sense a valuable instrument and jurisdictional tool to promote structural due process. 97. Yet over time, it has been realised that this jurisdiction is capable of being and has been brazenly misutilised by persons with a personal agenda. At one end of that spectrum are those cases where public interest petitions are motivated by a desire to seek publicity. At the other end of the spectrum are petitions which have been instituted at the behest of business or political rivals to settle scores behind the facade of a public interest litigation. The true face of the litigant behind the façade is seldom unravelled. These concerns are indeed reflected in the judgment of this Court in [State of Uttaranchal v. Balwant Singh Chaufal, (2010) 3 SCC 402 : (2010) 2 SCC (Cri) 81 : (2010) 1 SCC (L&S) 807] . Underlining these concerns, this Court held thus : (SCC p. 453, para 143) "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." 98. The misuse of public interest litigation is a serious matter of concern for the judicial process. Both this Court and the High Courts are flooded with litigations and are burdened by arrears. Frivolous or motivated petitions, ostensibly invoking the public interest detract from the time and attention which courts must devote to genuine causes. This Court has a long list of pending cases where the personal liberty of citizens is involved. Those who await trial or the resolution of appeals against orders of conviction have a legitimate expectation of early justice. Frivolous or motivated petitions, ostensibly invoking the public interest detract from the time and attention which courts must devote to genuine causes. This Court has a long list of pending cases where the personal liberty of citizens is involved. Those who await trial or the resolution of appeals against orders of conviction have a legitimate expectation of early justice. It is a travesty of justice for the resources of the legal system to be consumed by an avalanche of misdirected petitions purportedly filed in the public interest which, upon due scrutiny, are found to promote a personal, business or political agenda. This has spawned an industry of vested interests in litigation. There is a grave danger that if this state of affairs is allowed to continue, it would seriously denude the efficacy of the judicial system by detracting from the ability of the court to devote its time and resources to cases which legitimately require attention. Worse still, such petitions pose a grave danger to the credibility of the judicial process. This has the propensity of endangering the credibility of other institutions and undermining public faith in democracy and the rule of law. This will happen when the agency of the court is utilised to settle extra-judicial scores. Business rivalries have to be resolved in a competitive market for goods and services. Political rivalries have to be resolved in the great hall of democracy when the electorate votes its representatives in and out of office. Courts resolve disputes about legal rights and entitlements. Courts protect the rule of law. There is a danger that the judicial process will be reduced to a charade, if disputes beyond the ken of legal parameters occupy the judicial space." 7. Tested on that anvil, the present petition even if entertained and allowed would not have any positive impact on any member of the society who may otherwise be obstructed in approaching this Court. Also, the cause brought before this Court is not such as may involve protection of any of the fundamental rights of any person who may be disadvantaged or who may not have free access to justice. 8. A motion such as this seeking disciplinary or other action to be taken against private individuals, occasioned by certain complaints, if entertained, may only lead to a deluge of such petitions which this Court is ill equipped to handle. 8. A motion such as this seeking disciplinary or other action to be taken against private individuals, occasioned by certain complaints, if entertained, may only lead to a deluge of such petitions which this Court is ill equipped to handle. Also, if the Court was to indulge in such exercise, it would be at the risk of time which it needs to decide matters of individual rights as also public interest litigation of the meaningful variety. 9. In view of the above, we are not inclined to entertain the present writ petition. It is accordingly dismissed with further observation that the petitioner may revisit his approach towards the Court and refrain from filing such petitions in future.