Full Judgment Text
2016:BHC-OS:11189-DB
skc 1 907-PIL-60-16.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION (L) NO. 60 OF 2016
Smt. Ujwala J. Patil .. Petitioner
versus
Slum Rehabilitation Authority & Ors. .. Respondents
Mr. Uday Warunjikar and Mr. Balasaheb R. Deshmukh for Petitioner.
Smt. Ujwala J. Patil – Petitioner present in person at 3 p.m.
Mr. J. G. Reddy (Aradwad) for Respondent No. 1.
Mr. Pravin Samdani – Senior Advocate i/b. Wadia Ghandy & Co. for
Respondent No. 4.
Mr. Milind Sathe – Senior Advocate with Ms R. Lodha i/b. Lodha
Legal for Respondent No. 5.
Ms Trupti Puranik for MCGM.
CORAM: V. M. KANADE AND
M. S. SONAK, JJ.
DATE : 09 AUGUST 2016
JUDGMENT :
1] This petition is purported to have been instituted as a 'public
interest litigation' by the petitioner who claims to be the President of
Mumbai Division of Maharashtra Machhimar Kruti Samiti.
2] As we were prima facie not satisfied that this is any genuine
public interest litigation, we have heard Mr. Warunjikar and Mr.
Balasaheb Deshmukh, learned counsel for the petitioner on the said
issue. At the hearing on 3 August 2016, Mr. Warunjikar made
submissions in great details. He submitted that the petitioner
undertakes social work and has raised several issues for protecting
rights of fishermen. He submitted that the petitioner has obtained
information under the Right to Information Act and on basis of the
same, has instituted the present petition. He further submitted that
from the information made available to the petitioner, it is clear that the
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SRA Scheme, which the petitioner impugns in public interest, has been
approved without there being consent of 70% of the slum dwellers. He
submits that since this is contrary to the provisions of The Maharashtra
Slum Areas (Improvement, Clearance and Redevelopment Act), 1971
(Slum Act), Development Control Regulations (DCR) there is public
interest involved in quashing the SRA Scheme which is being
implemented by respondent nos. 4 and 5 upon the suit plot. Mr.
Warunjikar submitted that this is also a fit case to direct the
Commissioner of Police to register FIR against the officers of the
respondents for granting approvals to the SRA Scheme, since,
according to the petitioner, such approvals are contrary to law.
3] On 3 August 2016, we made the following order :
“1. We have heard Shri Warunjikar appearing on behalf of the
Petitioner and Shri Samdhani, learned Senior Counsel
appearing on behalf of Respondent No.4.
2. After having heard both the learned counsel at length, we
are of the view that prima facie there is no public interest
involved in this PIL and the PIL has not been filed with a
bonafide intention. Obviously, the present PIL has been filed by
the persons who are disgruntled and could not succeed in the
earlier round of litigation filed by them. It appears that after the
extension was granted to vacate the premises till 31st May,
2016 was over, the present PIL has been filed.
3. Shri Warunjikar, the learned counsel appearing on behalf of
the Petitioner insisted that he would like to point out various
documents. Accordingly, we have heard him at length. We have
heard Shri Samdhani, learned Senior Counsel appearing on
behalf of Respondent No.4. He has pointed out that 12 writ
petitions were filed by the slum dwellers and they were all
dismissed by this Court and, thereafter, the present PIL has
been filed by the very soon advocate, who had appeared in the
earlier petitions. He has also pointed out number of
discrepancies in the documents annexed to the petition. We
have noticed that there is a growing tendency of filing false and
frivolous PILs in this Court. We, therefore, direct the
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Respondents to file their short reply bringing these facts on
record. Stand over to 9th August, 2016 on the Supplementary
Board.”
4] On 9 August 2016, Mr. Balasaheb Deshmukh appeared for the
petitioner stating that Mr. Warunjikar is held up in some other court.
Mr. Deshmukh reiterated that the petition has been instituted in public
interest. He submitted that the circumstance that he or for that matter
Mr. Warunjikar had appeared in several previous petitions concerning
this very SRA Scheme, is by no means a sufficient circumstance to
suggest that the present petition has not been instituted by the
petitioner in public interest, but rather, the petitioner has been put up
by certain disgruntled slum dwellers, who were not successful in
obtaining the desired relief in the petitions previously instituted by
them. Learned counsel for the petitioner seriously suggested that there
was no obligation upon them as Advocates to disclose to this court the
circumstance that several previous petitions had been instituted
questioning this very SRA Scheme or matters related therewith and
that no relief had been granted by this court in the said petitions. In
the context of the several exhibits annexed to the present petition,
possibly being the very same annexures in the previous petitions, Mr.
Deshmukh, really had no answer, except, to seek some time to obtain
instructions in the matter.
5] On 3 August 2016 itself, Mr. Samdani, learned Senior Advocate
appearing for respondent no. 4 had raised objections to the
entertainment of the present petition as a public interest litigation.
Specific contentions were raised in the context of the exhibits annexed
to the present petition, which also, formed a part of the exhibits
annexed to the previous petitions. There was more than ample time
available to the learned counsel for the petitioner to obtain instructions
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on this aspect. Besides, the bona fides of the petitioner have not been
questioned solely on the basis of commonality of the exhibits. There is
further intrinsic material on record, which also suggests that the
petitioner has merely been put up by some disgruntled slum dwellers,
who were unsuccessful in obtaining reliefs in the previous rounds of
litigations.
6] Mr. Samdani, learned counsel for respondent no. 4 has taken us
through the affidavit filed on behalf of the respondent no. 4 and on the
said basis, submitted that the very institution of the present petition by
the petitioner as a public interest litigation, is nothing but an abuse of
the process of the public interest litigations. Mr. Samdani has
submitted that in several previous writ petitions instituted by some
disgruntled slum dwellers, questioning inter alia the SRA Scheme and
their eviction in pursuance of the SRA Scheme, very same Advocates,
who now appear for the present petitioner have appeared. There is a
commonality between some of the exhibits in the said petitions and
the present petition. Some of the exhibits in the present petition,
appear to be the zerox copies of the exhibits in the said petitions. This
court, declined interim reliefs to certain disgruntled slum dwellers, in
the matter of their eviction from the slums. Thereafter, applications for
extension of time to vacate were made. No sooner extended time has
expired, the present petition has been instituted, seeking substantially
the same reliefs, though, couched slightly differently, so as to project
some public interest. Mr. Samdani has submitted that the slum
dwellers, who claim that there is no consent from 70% of the slum
dwellers, are very much competent to protect their own alleged interest
and this is clearly not a fit case to relax rule of locus standi or to permit
the petitioner to masquerade as a public interest litigant. In the
previous petitions instituted by the disgruntled slum dwellers also, one
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of the main contentions was that there was no consent from the 70%
of the slum dwellers. Mr. Samdani submitted that the SRA Scheme
has been approved by various authorities after satisfying themselves
that such consent had indeed been obtained and further, there were
other legal compliances. Mr. Samdani submitted that the SRA Project
is at an advanced stage and the petition is completely lacking in bona
fides. Mr. Samdani also submitted that since, the Advocates, who
now appear for the petitioner, were also the Advocates for the
petitioners / disgruntled slum dwellers, who had instituted the previous
petitions, it was their duty to make disclosures with regard to the
previous litigations. Mr. Samdani submitted that the Advocates, as
Officers of the court, owe a duty to this court, which according to him,
the Advocates appearing for the petitioner in the present petition, have
failed to discharge.
7] On 9 August 2016, after the conclusion of the arguments, we
directed the petitioner to remain present in the afternoon session. The
petitioner was present in the afternoon session. We specifically
enquired with the petitioner as to whether she was aware of the
contents of the affidavit which she has filed in support of the present
petition, including, in particular, the statement made in the undertaking
accompanying the petition, that the petitioner will pay costs as
ordered by the court, if it is ultimately held that the petition is frivolous
or has been filed for extraneous consideration or that it lacks bona
fides. The petitioner stated that she is aware of the contents of the
affidavit as well as the undertaking tendered by her at the time of
institution of this petition. Mr. Warunjikar also appeared in the
afternoon session, but stated that he has already conveyed to the
petitioner, his inability to appear in the matter.
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8] Upon due consideration of the submissions made by learned
counsel for the parties and the perusal of the record, we are satisfied
that the very institution of the present petition constitutes an abuse of
the process of public interest litigations. There is no public interest
whatsoever involved in the issue raised by the present petitioner. In
several previous petitions instituted in the year 2010, 2011, 2013, 2015
and 2016, the issue that the scheme was not backed by consent from
70% of the slum dwellers was raised, either directly or indirectly. In
some of the earlier petitions, the very same objection was raised in the
context of land at Shiv Koliwada, with which the present petitioner,
claims that she has no interest. However, the material on record
makes it clear that the schemes pertaining to Shiv Koliwada and the
Akar land, have ultimately been amalgamated and therefore, now
constitute one composite slum redevelopment scheme.
9] In any case, in 2016 itself, about 11 writ petitions being writ
petition nos. 2632 of 2016 and connected petitions came to be
instituted by certain affected slum dwellers, who were resisting
evictions, despite being assured alternate premises or compensation
in lieu of alternate premises. The respondent no.4 in his affidavit, has
transcribed certain averments and grounds in the said writ petitions to
demonstrate that the very same contentions / grounds find place in the
present petition filed in purported public interest. Affidavit also points
out that some of the exhibits in the present petition are nothing but
zerox copies of the exhibits in the previous petitions, which is evident
from the paging of the exhibits.
10] In our judgment, these as well as other circumstances, establish
that the present petition is not some genuine public interest litigation
and the possibility that the petitioner has been put up by disgruntled
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slum dwellers who failed to obtain favourable orders in the several
petitions instituted by them, cannot be ruled out. In any case,
considering that several slum dwellers have themselves instituted
petitions questioning the scheme, it can certainly not be said that the
petitioner, who claims to espouse public interest, is representing the
cause of any poor, downtrodden or marginalized members of the
society, who are unable to themselves approach this court for
redressal of their alleged grievance. We are therefore satisfied there
is no public interest involved in the institution of the present petition.
11] The petitioner has also not been candid in the matter of
disclosures as to the source of her information. An impression was
attempted to be created by the petitioner that all the documents were
obtained by the petitioner after she came across some report in the
Daily Loksatta and that such information was obtained under the Right
to Information Act. The report in Loksatta does not even make any
reference to the survey numbers. The documents furnished by the
petitioner along with the petition, do not entirely, appear to be
documents obtained by the petitioner under the Right to Information
Act. Some of the documents appear to be copies of exhibits used in
previous petitions instituted by some of the slum dwellers pursuing
their private cause.
12] There is gross and unexplained delay in questioning the validity
of the scheme. In the affidavit filed by respondent no. 4 it is stated that
462 occupants have vacated the subject land and handed over the
possession of their structures to the concerned authorities for
redevelopment purposes. It is also stated that respondent no. 4 has
completed construction of one rehabilitation building and 159
occupants have already been rehabilitated. Another rehabilitation
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building is also completed but occupation certificate is awaited. All
this, in our judgment, is sufficient to dismiss the present petition which
is purported to have been instituted in public interest.
13] Although, we do not propose to say anything with regard to the
actions of the learned counsel appearing for the petitioner, we must
reject the submissions of the learned counsel that it was not their duty
to disclose the history and the fate of previous litigations upon the
substantially same issue and that they are bound only by the
instructions of the petitioner, who has engaged their services. In our
opinion, the observation made by Lord Denning in Rondel vs.
1
Worsley affords a complete answer to such contention. The Supreme
Court in the case of Himachal Pradesh Scheduled Tribes Employees
Federation & Anr. vs. Himachal Pradesh Samanaya Varg Karamchari
2
Kalayan Mahasangh & Ors . , has expressly approved the exposition of
very high standard of moral, ethical and professional conduct
expected to be maintained by members of the legal profession by
quoting the observation in Rondel vs. Worsley . In paragraphs 31 and
32, the Hon'ble Supreme Court has observed thus :
“31. When a statement is made before this Court it is, as
a matter of course, assumed that it is made sincerely and
is not an effort to overreach the Court. Numerous matters
even involving momentous questions of law are very often
disposed of by this Court on the basis of the statement
made by the learned counsel for the parties. The statement
is accepted as it is assumed without doubt, to be honest,
sincere, truthful, solemn and in the interest of justice. The
statement by the counsel is not expected to be flippant,
mischievous, misleading and certainly not false. This
confidence in the statements made by the learned counsel
is founded on the assumption that the counsel is aware
that he is an officer of the Court.
1 (1966) 3 All E.R. 657 (CA)
2 (2013) 10 SCC 308
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32. Here, we would like to allude to the words of Lord
Denning, in Rondel v. Worsley about the conduct expected
of an advocate:
“… As an advocate he is a minister of justice equally with the
Judge.
… I say ‘all he honourably can’ because his duty is not only to
his client. He has a duty to the court which is paramount. It is
a mistake to suppose that he is the mouthpiece of his
client to say what he wants: or his tool to do what he
directs . He is none of these things. He owes allegiance to a
higher cause. It is the cause of truth and justice. He must not
consciously misstate the facts. He must not knowingly
conceal the truth . He must not unjustly make a charge of
fraud, that is, without evidence to support it. He must produce
all the relevant authorities, even those that are against him.
He must see that his client discloses, if ordered, the relevant
documents, even those that are fatal to his case. He must
disregard the most specific instructions of his client, if
they conflict with his duty to the court . The code which
requires a barrister to do all this is not a code of law. It is the
code of honour.” (QB p. 502)
In our opinion, the aforesaid dicta of Lord Denning is
an apt exposition of the very high standard of moral,
ethical and professional conduct expected to be
maintained by the members of legal profession. We
expect no less of an advocate/counsel in this country.”
[Emphasis supplied]
3
14] In Balco Employees' Union vs. Union of India , the Supreme
Court, after taking cognizance of increasing instances of abuse of
public interest litigation, the Court has devised number of strategies to
ensure that the attractive brand name of public interest litigation is
not allowed to be used for suspicious products of mischief. One of the
devise was restricting locus standi in PILS to individuals 'acting bona
fide'. The second was the imposition of 'exemplary costs' as a
deterrent against false and frivolous public interest litigations. Finally,
the Supreme Court directed the High Courts to be more selective in
entertaining public interest litigations.
3 (2002) 2 SCC 333
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4
15] In S. P. Gupta vs. Union of India , again, locus standi was
conceded to individuals ' acting bona fide ' but not to 'meddlesome
interlopers' or to individuals bringing public interest litigation for
personal gain. In Chhetriya Pardushan Mukti Sangharsh Samiti vs.
5
State of U.P . , standing was denied upon hint of malice and oblique
motives, on account of enmity between the parties. In Neetu vs.
6
State of Punjab , frivolous public interest litigations were dismissed
with compensatory costs to ensure that the message goes in the right
direction that petitions filed with oblique motive have no approval of the
courts.
7
16] In S. P. Anand vs. H.D. Deve Gowda , the Supreme Court
warned that it is of utmost importance that those who invoke the
jurisdiction of 'seeking a waiver of the locus standi rules ' must exercise
restraint in moving the Court by not plunging in areas wherein they
8
are not well-versed. In Sanjeev Bhatnagar vs. Union of India , the
Supreme Court imposed monetary penalty against the advocate for
filing a frivolous and vexatious PIL, after it found that the petition was
devoid of public interest but was in reality, ' publicity interest litigation '.
9
In Dattaraj Nathuji Thaware vs. State of Maharashtra , the
Supreme Court affirmed the High Court's monetary penalty against a
member of the Bar for filing a frivolous and vexatious PIL upon finding
that the petition was nothing but a camouflage to foster personal
dispute. The Supreme Court expressed anguish on the misuse of the
forum of the court under the garb of public interest litigation by
observing thus :
4 1981 Supp. SCC 87
5 (1990) 4 SCC 449
6 (2007) 10 SCC 614
7 (1996) 6 SCC 734
8 (2005) 5 SCC 330
9 (2005) 1 SCC 590
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“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 armoury of law for delivering social justice to the citizens. …
The court must not allow its process to be abused for oblique
considerations….”
10
17] In State of Uttaranchal vs. Balwant Singh Chaufal & Ors . ,
with a view to curb abuse of the process of the public interest litigation
has directed that the courts should prima facie verify the credentials of
the petitioner before entertaining a PIL; the courts should be prima
facie satisfied regarding the correctness of the contents of the petition
before entertaining a PIL; the courts should be fully satisfied that
substantial public interest is involved before entertaining the petition;
and that the PIL is aimed at redressal of genuine public harm or public
injury; the Courts should also ensure that petitions filed by busybodies
for extraneous and ulterior motives must be discouraged by imposing
exemplary costs or by adopting novel methods to curb frivolous
petitions and petitions filed for extreneous considerations.
11
18] In Ashok Kumar Pandey vs. State of W.B . , the Supreme
Court, again, by reference to several earlier decisions held that the
courts must do justice by promotion of good faith and prevent law from
crafty invasions. Courts must maintain the social balance by interfering
where necessary for the sake of justice and refuse to interfere where it
is against social interest and public good. No litigant has right to
unlimited drought of a court time and public money in order to get his
affair settled in the matter as he wishes. Easy access to justice should
not be misuse as a licence to file misconceived and frivolous petitions.
10 (2010) 3 SCC 402
11 (2004) 3 SCC 349
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People must not rush to courts to file cases in profusion under the
attractive name of public interest. They must inspire confidence in
courts and amongst the public. Time has come to weed out the
petitions, which though titled as public interest litigations are in
essence something else. It is shocking to note that the courts are
flooded with large number of so-called public interest litigations where
in a minuscule percentage can legitimately be called as public interest
litigation. The parameters of public interest litigation have been
indicated in large number of cases, yet, unmindful to the real
intentions, objectives, courts are entertaining such petitions and
wasting valuable judicial time, which could be otherwise utilised for
disposal of genuine cases. It would be desirable for the courts to filter
out the frivolous petitions and dismiss them with costs so that the
message goes in the right direction that petitions filed with oblique
motive do not have an approval of the courts.
19] Applying the aforesaid principles, to the facts and circumstances
of the present case, we dismiss this petition with costs quantified at
Rs.25,000/- (Rupees Twenty Five Thousand). The petitioner,
consistent with the undertaking filed by her in this court, shall deposit
such costs in the Registry within a period of four weeks from today. In
case the costs are not deposited, liberty is granted to recover such
costs as arrears of land revenue. The costs once deposited shall be
paid by the Registry to the Tata Cancer Research Centre.
20] All concerned to act on basis of authenticated copy of this order.
(M. S. SONAK, J.) (V. M. KANADE, J.)
chandka
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