Madhya Pradesh High Court
Ravindra Tiwari vs The State Of Madhya Pradesh on 18 November, 2015
HIGH COURT OF MADHYA PRADESH : JABALPUR WRIT PETITION No.19716/2014 Hon'ble Shri Justice Rajendra Menon, J. Hon'ble Shri Justice K.K. Trivedi, J.
1. This pro bono publico under Article 226 of the Constitution of India by the petitioner is filed seeking following reliefs :
"I. to restore the land of members of tribal family, alleged to be taken, pursuant to lease deed executed by respondent no.6 and 7;
II. to take appropriate action against respondent no.5 for abusing its statutory powers;
III. to issue such appropriate writs/order as this Hon'ble Court deems fit in the facts and circumstances of the case."
2. We have reasons to record such a relief in view of the fact that this Court while passing order on application for amendment in the writ petition filed by the petitioner on 22.07.2015, dealt with various objections regarding the said amendment in the writ petition. In fact it is the submission of learned senior Counsel for respondents No.6 and 7 that the petition as carved for the aforesaid reliefs, is not maintainable before this Court in view of the law laid-down by the Apex Court in the case of Balco Employees' Union (Regd.) vs. Union of India and others1. It is the vehement contention of learned senior Counsel for respondents No.6 and 7 that the law laid-down by the Apex Court in the case of Samatha vs. State of A.P. and others2 is not applicable in the State of Madhya Pradesh in view of the fact that the same has been distinguished by the Apex Court and virtually has been watered down in the case of Balco Employees' Union (supra), keeping in view the specific provisions of Madhya Pradesh Land Revenue Code, 1959.
3. First of all it has to be examined whether the present one can be said to be a genuine Public Interest Litigation or not and whether for the aforesaid reliefs, such a writ petition would still be maintainable, in view of the law laid- down by the Apex Court in various cases. For the purposes of examining the credentials and antecedents of the petitioner, it is required to be seen in what capacity the 1 (2002) 2 SCC 333 2 (1997) 8 SCC 191 petitioner has come before this Court. In paragraph 2 of the writ petition, submissions made by the petitioner are that he is local resident of Shahdol district and is interested in protecting the rights of tribal people, who on account of their poverty, backwardness and illiteracy are unable to espouse their cause. However, not a single incident or action taken by the petitioner in fulfillment of the aforesaid object has been described. In the entire petition nothing more is said except that the petitioner is interested in espousing the cause of the tribal people.
4. The main planks of contentions in respect of certain acts alleged by the petitioner are on the improper application of provisions of Madhya Pradesh Land Revenue Code, 1959 (herein after referred to as 'Code'). However, how such rights are affected and whether any alternative mechanism is available under the Code to the aggrieved person to seek redressal against such illegal acts or orders have not been explained. Keeping in view the aforesaid, it has to be tested whether the petitioner can be said to be a real public interest litigant or not.
5. The Apex Court in the case of State of Uttaranchal vs. Balwant Singh Chaufal 3 has laid-down certain principles for testing whether a real public interest litigation has been brought to the Court or the same is filed for extraneous consideration. The said principles read thus :
"(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 3 (2010) 3 SCC 402 encouraging the genuine PIL and discouraging the PIL filed with oblique motives.
(3) The courts should prima facie verify the credentials of the petitioner before entertaining a P.I.L.
(4) The court should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL.
(5) The court should be fully satisfied that substantial public interest is involved before entertaining the petition.
(6) The court 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 court 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."
6. Keeping the aforesaid principles in mind, if statements made in the petition are examined, it is clear that it cannot be said to be a real public interest litigation. The reasons for the same are summarized herein after thus :
(i) Nothing has been indicated in the petition as to what was the modus operandi of the petitioner to protect the interest of the tribal people. It has not been described as to what actions were taken by the petitioner in the past for achieving the aforesaid object of protection of rights of tribal people.
(ii) It has not been described as to how the aggrieved persons are not capable of approaching the appropriate forum prescribed under the Code for redressal of their grievances in respect of alleged illegal transfers or mutations or even demarcation. Whether the alternative statutory mechanism of filing of appeal against any such matter of mutation, diversion, transfer of land is not available under Section 44 of the Code to any such aggrieved person. In fact it is seen that if the order passed by the competent authority is not justified for any reason, the aggrieved person can challenge the same in the next higher appellate forum under the aforesaid provisions of Section 44 of the Code. Even if the first appeal is not properly decided, the aggrieved person has yet another remedy of filing second appeal under the very same provision before the next higher revenue authority. Even a revision before the Board of Revenue so constituted under the Code is available under Section 50 of the Code. Not a single word was said about not resorting such remedy by the aggrieved persons, in the entire writ petition by the petitioner. This makes it clear that in fact the present one is not a real public interest litigation, rather it is filed for some extraneous purpose. The petitioner could have described as to how the aggrieved person could not resort to the alternative statutory remedy of appeal and why they could not obtain the suitable orders from the appellate authority under the Code. This indicates that in fact the alleged tribal persons are wholly satisfied with the action taken by the respondents and, therefore, they have not resorted to the remedy available under the Code. This further makes it clear that the present one is nothing but a petition with ulterior motive in the garb of public interest litigation and thus cannot be said to be a genuine public interest litigation.
(iii) That apart, the relief claimed by the petitioner in the present writ petition that the lease-deeds be declared as illegal, cannot be granted at the said lease-deeds cannot be said to be bad in law in any manner in a public interest litigation. That scope is no longer available nor the same can be resorted to in view of the law well settled by the Apex Court in the case of Balco Employees' Union (supra). If a lease cannot be challenged in a public interest litigation, the relief as claimed in the present writ petition cannot be granted to the petitioner. This further makes it clear that the present writ petition is not a real public interest litigation.
(iv) As far as the diversion part is alleged, for the said purpose no relief is claimed in the present writ petition. There is no challenge to the specific provisions of Section 165(6) of the Code. The amendment in the writ petition, which was earlier applied for by the petitioner, was rejected solely on the ground that the provisions of Section 168(1) of the Code cannot be challenged as ultra vires unless there is a challenge to the provisions of Section 165(6) of the Code. That being so, even when such an order was passed, no attempt was made by the petitioner to challenge the said provisions and this shows that the petitioner himself was of the opinion that present is not a real public interest litigation.
7. For the aforesaid reasons, we have to say that the present writ petition cannot be said to be a real public interest litigation. That apart, the documentary evidence annexed with the writ petition as also with the rejoinder nowhere indicates the actual person, who is affected by any act of the respondents-authorities in granting the lease of the land to respondents No.6 and 7. The lease documents annexed with the writ petition indicates the name of the persons without there being any description of the land or the actual Khasra numbers so as to get any enquiry conducted in that respect. In absence of material evidence, the allegations made that illegalities were committed by the respondents, cannot be accepted at all. The respondents in their return have categorically denied these facts and have raised objection with respect to the claim made by the petitioner in the writ petition. While filing the rejoinder again a bald statement is made by the petitioner giving names of certain persons but in respect of Khasra (survey number) of the land, the entry made is not known (ugha ekywe). Including one of the persons, who is not belonging to the reserved category of tribal community, a representation is placed on record to say that the affected persons have approached the authorities but nothing has been done by them. Such a document placed on record as Annexure P-8 along with the rejoinder again expose the mind of the petitioner that he was not prosecuting the writ petition for the betterment or for the benefit of the tribal persons but was interested otherwise harassing the respondents. From the aforesaid it is clear that in fact the present writ petition has been filed claiming the relief in such manner so as to indicate as if real public interest litigation was brought before this Court whereas the record speaks otherwise.
8. Learned senior Counsel for respondents No.6 and 7 has raised preliminary objection regarding the maintainability of the writ petition. The first objection is with respect to the relief claimed, which according to learned senior Counsel for respondents No.6 and 7, cannot be granted in view of the law laid-down by the Apex Court in the case of Balco Employees' Union (supra). It is the contention that such a relief cannot be granted as claimed with respect to the restoration of the land of the members of the tribal family. The instances of any such cause or grievance have not been pointed out. Not a single document to that effect is placed on record. The affected persons have not been impleaded as parties in the writ petition. Thus any enquiry is not possible. It is further contended by the learned senior Counsel for respondents No.6 and 7 that the second relief is against the statutory powers. In absence of challenge to such provisions, such a relief is not to be granted. It is further contended that in fact the present petition has been filed in the disguise of public interest litigation to challenge the registered sale- deed of a third party, which again is not permissible in law. Nothing has been stated as to what are the sources of information on which the averments are based or made in the writ petition. The individual lessees are not included as party in the present writ petition. There is huge and unexplained delay in filing of the writ petition as the leases were executed way back, the project has been started by the respondents long back and, therefore, at such a belated stage the relief cannot be granted. Learned senior Counsel for the respondents No.6 and 7 has placed his reliance in the case of Balco Employees' Union (supra), Narmada Bachao Andolan vs. Union of India and others 4 (paragraph 229), Bombay Dyeing & Mfg. Co. Ltd. vs. Bombay Environmental Action Group5(more particularly in paragraph 341), as also Delhi Development Authority vs. Rajendra Singhand others6 (paragraphs 49 and 53).
9. Thus, it is contended by the learned senior Counsel for respondents No.6 and 7 that present one is not a genuine public interest litigation and is liable to be dismissed on this objection alone, as has been laid-down by the Apex Court in the case of P.S.R. Sadhanantham vs. Arunachalam7and in the case of Kishore Samrite vs. State of U.P.8.
10. Replying to the aforesaid contentions, learned senior Counsel for the petitioner submits that there is a specific bar created under the Code for transfer of the land belonging to the tribal persons in a tribal area. It is contended that such interests of the tribal persons are protected by various laws as prescribed under Section 165(6) of the Code. Keeping all those provisions in view as also the provisions of the Constitution of India, well settled law is that the land of the tribal persons are to be protected. Reliance is placed in the case of Lingappa Pochanna Appelwar vs. State of Maharashtra and another9, more particularly paragraphs 5, 14 and 17, in the case of R. Chandevarappa and others vs. State of Karnataka 4 (2000) 10 SCC 664 5 (2006) 3 SCC 434 6 (2009) 8 SCC 582 7 (1980) 3 SCC 141 8 (2013) 2 SCC 398 9 (1985) 1 SCC 479and others10, Mohd. Aslam alias Bhure vs. Union of India and others11, Amrendra Pratap Singh vs. Tej Bahadur Prajapati and others12 and Vishwanath Chaturvedi (3) vs. Union of India and others 13. Lastly placing reliance in the case of Jal Mahal Resorts Private Limited vs. K.P. Sharma and others14, it is contended that in case arbitrary act is found in any such action taken by the State, even when the policy is made, the scope of judicial review is available and the writ petition is not to be thrown overboard only because of preliminary objection raised by the respondents regarding the maintainability of the same before this Court.
11. We have heard learned senior Counsel for the parties at length and we have perused the record and minutely examined the law.
12. Undisputedly a scheme is made under Section 165(6) of the Code to protect the interest of tribal people. For the purpose of convenience, the said provision is quoted herein below :
"165(6). Notwithstanding anything contained in sub-section (1) the right of bhumiswami belonging to a tribe which has been declared to be an aboriginal tribe by the State Government by a notification in that behalf, for the whole or part of the area to which this Code applies shall -
(i) in such areas as are predominately inhabited by aboriginal tribes and from 10 (1995) 6 SCC 309 11 (2003) 4 SCC 1 12 (2004) 10 SCC 65 13 (2007) 4 SCC 380 14 (2014) 8 SCC 804 such date as the State Government may, by notification, specify, not be transferred nor it shall be transferable either by way of sale or otherwise or as a consequence of transaction of loan to a person not belonging to such tribe in the area specified in the notification.
(ii) in areas other than those specified in the notification under clause (I), not to be transferred or be transferable either by way of sale or otherwise or as a consequence of transaction of loan to a person not belonging to such tribe without the permission of a Revenue Officer not below the rank of Collector, given for reasons to be recorded in writing.
Explanation.- For the purposes of this sub-section the expression "otherwise" shall not include lease."
This Court has already examined whether such a provision can be said to be ultra vires or not. As has been pointed out herein above, while challenging the validity of Section 168 of the Code where the lease is prescribed, an attempt was made by the petitioner to amend the writ petition, which application was rejected only on the ground that there is no notification issued in that respect in exercise of power by His Excellency the Governor of the State. Secondly it was held by this Court that unless the provisions of Section 165(6) of the Code, more particularly the explanation clause in the said Section of Code is challenged, a simple challenge to the provisions of Section 168 of the Code would not serve any purpose. Even when such an opinion was expressed by this Court, no action was taken by the petitioner to call in question the provisions of Section 165(6) of the Code and this speaks itself that in fact the petitioner was not raising any grievance of the persons said to be belonging to tribal community of the area and in fact it was an attempt to pressurize the respondents in other manner.
13. We have carefully gone through the decisions rendered by the Apex Court and heavily relied by learned senior Counsel for the petitioner. In the case of Lingappa Pochanna Appelwar (supra), the Apex Court was dealing with a situation where on the recommendation made by a specialized Committee, an Act was made by the Legislature protecting the interest of the tribal persons in the matter of transfer of land. In reference to the aforesaid, when dealing with the situation, the Apex Court has summarized the scheme of Constitution, the provisions for making of such law and effective protection granted to the tribal persons. However, in the present case, no such provisions of law, specifically made for the said purposes, have been pointed out. The only provision which is pressed by the petitioner is the provision of Section 165(6) of the Code of which reference has already been made herein above. The explanation attached to the said provision specifically deals with the leases, to be executed in respect of the land situated even within the tribal areas or belonging to the tribal persons. As has been pointed out herein above, there is no challenge to such a provision. In absence of any such challenge, the law laid-down by the Apex Court in the aforesaid case would not be attracted. Similarly, in the case of R. Chandevarappa (supra), again the transfer of the land was said to be in violation of the provisions of specific law separately made by the said State Legislature. Again in our considered view the said law would not be attracted in the case in hand for the reasons recorded herein before. In the case of Mohd. Aslam alias Bhure (supra), the Apex Court was dealing with the specific enactment made in respect of acquisition of land at Ayodhya. Again the same explanatory clause was not provided in the said Act and, therefore, the opinion of the Apex Court in respect of application of the said law would not be attracted in the present case where specific explanation is attached to the provisions of protection itself and which provision has not been called in question by the petitioner. In the case of Amrendra Pratap Singh (supra), the dispute was in respect of ownership of the land and the application of the provisions of the law made in the year 1950. The amendments made in the said Act were not in the same manner as have been prescribed in the Code, with the explanation clause and, therefore, in our considered opinion the said law would also not be applicable. In the case of Vishwanath Chaturvedi (supra), while dealing with a test to public interest litigation, the Apex Court has laid-down certain prepositions. However, as we have pointed out in the opening paragraphs of this judgment, the latest law laid-down by the Apex Court in the case of State of Uttaranchal vs. Balwant Singh Chaufal (supra), would be more relevant to test the maintainability of a public interest litigation and, therefore, such a reliance placed by learned senior Counsel for the petitioner is misconceived. Lastly, the facts and circumstances in the case of Jal Mahal Resorts Private Limited (supra) with respect to development of area and the protection of lakes were more important component of the claim made, which priorities are not stated in the present petition nor any claim in that respect has been made. Therefore, to us the law laid-down by the Apex Court in that respect would not be attracted at all.
14. As have been pointed out herein above, there is a statutory scheme of filing appeal against any order of diversion, mutation or even transfer, provided in the Code, which remedy can be resorted to by any aggrieved person. We have reason to believe that if the tribal persons were aggrieved by any such act of the respondents, they could have filed a statutory appeal as provided under the Code within the time prescribed. The non-filing of the appeal by such aggrieved person themselves indicates that they were satisfied with whatever action taken for acquisition of their land or even allotment of the said land on lease to the respondents and, therefore, they have never called in question such action of the respondents. Therefore, in our considered opinion the law relied by learned senior Counsel for the petitioner would not be attracted in the present case.
15. Yet another aspect is that there is no explanation for such inordinate delay in approaching the Court. The present writ petition was filed on 15.12.2014 only whereas the alleged lease-deeds were executed long back. The orders were issued in the year 2011 for demarcation and diversion. These are the specific circumstances in which the allegation of arbitrariness in the act or action taken by the respondents cannot be sustained. Therefore, we have no hesitation in saying that for all the aforesaid acts of the petitioner, as have been pointed out herein above, the present is not a real public interest litigation and deserves to be dismissed on the preliminary objections only, as has been laid-down by the Apex Court in the case of Balco Employees' Union (supra).
16. The writ petition fails and is hereby dismissed. However, in the present facts and circumstances, we leave the parties to bear their own costs.
(Rajendra Menon) (K.K. Trivedi)
Judge Judge
Skc
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