Ajay Singh Rawat vs Union of India and Others

Alok Singh, J.

CLMA No. 5345 of 2015

In this application, prayer has been made that this Bench may recuse itself from hearing the instant PIL and matter may be directed to be listed before another Bench of this Court. In support of the application, affidavit of Prof. Ajay Singh Rawat, petitioner, in person, has been filed which reads as under:--

"I, the abovenamed deponent do hereby solemnly affirm and state on oath as under:--

That the deponent is the sole Petitioner in the instant writ petition and is as such well acquainted with the facts deposed to below.

That the instant writ petition had been filed by the petitioner against the indiscriminate, illegal construction activities in the green zones as demarcated by the Lake Development Authority, Nainital and other prohibited areas of Nainital, inter alia, with a prayer for declaration of Nainital area as an ''Eco-Sensitive Zone'' and for preservation of recharge-zones of Nainital Lake.

That it is submitted that another issue was brought before the Hon''ble Court, vide an application for further directions, regarding the dangerous construction activities being done over the recharge zones of the Nainital Lake, the most important being the Sukhatala Lake basin, which contributes about 40% of underground water supply to Naini Lake, and is situated on a higher elevation than the Nainital Lake.

That it is pertinent to submit here it had been specifically prayed for issuance of an ad-interim mandamus directing the respondent authorities to immediately stop the destructive activities in the ''Eco-Sensitive Zone'' of Sukhatal and to take measures to revive the Sukhatal Lake owing to its importance as life line and recharge zone of the Naini Lake and there had been no prayer as regards demolition of any property or as regards troubling the local public.

That it is stated here that, despite the limited prayers of the Petitioner as above, many new issues have cropped up in the instant writ petition which were not a part of the prayers of the Petitioner and are, rather, alien to the cause espoused by the Petitioner.

That the petitioner had preferred various applications, viz. CLMA 5815/14, CLMA-8562/14, CLMA-10106/14 and CLMA-1883/15 in the instant writ petition before the Hon''ble Court for separation of the issues of the petitioner from the new and irrelevant issues which have cropped up during the proceedings before the Hon''ble Court and for appropriate orders on the actual prayers of the instant writ petition, however, the prayers in the aforesaid applications have not been considered.

That the respondent authorities are taking action as per the directions of the Hon''ble Court which is causing large scale commotion in the town, however, while taking such action the name of the Petitioner is being used only to direct the commotion against the Petitioner and to tarnish his image, without there being any such prayer.

That the aforesaid illegal act of the respondent authorities was reported to the Hon''ble Court, however, nothing was done.

That the Petitioner was most surprised by the oral directions of the Hon''ble Court given on 30.04.2015 to the Standing Counsels for the local Administration to open up the controversial and illegally constructed petrol pump at Haldwani Road, Tallital, Nainital, despite the fact that the illegal sanction granted for construction of the same had been quashed by this Hon''ble Court vide order dated 14.05.2013 in WPPIL-17/2011.

That it is relevant to submit here that the earlier orders of the Writ Court in WPMB-1067/2004 and other cases, wherein directions had been issued for sanctioning the construction of the aforesaid petrol pump, had been quashed by the Hon''ble Supreme Court vide order dated 25.11.2010. It is submitted that one of the members of the Hon''ble Bench hearing the instant matter (Hon''ble Alok Singh, J.) was the counsel for the owner/applicant of the aforesaid petrol pump in the aforesaid proceedings before this Hon''ble Court.

That, despite protest by the Counsel for the Petitioner on the earlier date, the same members of the Hon''ble Bench hearing the instant matter (Hon''ble Alok Singh, J.), has once again orally directed the respondent authorities on 07.05.2015 to ensure opening up of the controversial and illegal petrol pump at the same spot. It is submitted that the Hon''ble Court vide its order dated 07.05.2015 has issued written directions to the respondents to make statement as to making available petrol and diesel at Tallital. It is submitted that the aforesaid direction has been issued despite the fact that there is an old petrol pump at Tallital and there are diesel pumps at a small distance of 11 kms. and 16 kms. at Bhowali and Jeolikot, respectively.

That the aforesaid makes it amply clear that the personal knowledge of a member of the Hon''ble Bench is playing various alien issues into the instant matter thus, frustrating the cause of the instant writ petition which is causing irreparable loss to the Petitioner.

That the continuance of hearing of the instant matter by the same Hon''ble Bench would not clear the tests of propriety and would be prejudicial to the interests of the cause espoused in the instant writ petition.

That it is necessary in the interests of justice, as also in the interests of the spirit of the instant public interest litigation, that this Bench of the Hon''ble Court may graciously be pleased to recuse itself from hearing the instant matter and the matter may be directed to be listed before another Bench of this Hon''ble Court, otherwise the applicant/Petitioner shall suffer irreparable loss."

Mr. Rajeev Singh Bisht, learned counsel for the petitioner submits that this Bench should consider the request of the petitioner to recuse itself from hearing this PIL. He further contends that the only request of the petitioner in the application is that this Bench should recuse itself and should not hear this PIL and this PIL should be referred to another Division Bench. He further contends that since this Court has traveled beyond the relief claimed in the PIL, therefore, petitioner has no faith in this Bench.

We have already reproduced the contents of the affidavit.

Mr. D.S. Patni, learned counsel for the Municipality and Mr. Sandeep Kothari, learned counsel for the Lake Development Authority and Kumaon Mandal Vikas Nigam and Mr. Syed Naddim, learned Standing Counsel for the State submitted that this Court neither on 30.04.2015 nor on 07.05.2015 had issued any oral direction to restore the controversial petrol pump in favour of Hina Khan. Since, during the discussion, it was transpired that petrol pump at Tallital, near Naini Lake, does not have facility of selling diesel and heavy vehicles cannot approach existing small petrol outlet and extension thereof is not permissible, therefore, observation was made to make available diesel and petrol in Tallital area somewhere else to the thousands of vehicle coming from Tallital area.

Mr. D.S. Patni, learned counsel for the Municipality further contends that since, permission to raise construction in controversial diesel outlet was refused by the L.D.A., therefore, it was his suggestion that diesel pump earlier established by Hina Khan may be taken over by the Kumaon Mandal Vikas Nigam and Kumaon Mandal Vikas Nigam may explore the possibility to run the same without raising construction or to find out any suitable alternate place to make available diesel in Tallital area.

Mr. C.D. Bahuguan, learned Senior Counsel, Senior Member of the Committee of Advocate Commissioners'' appointed vide order dated 3rd July, 2015, pointed out that in the affidavit baseless and absolutely incorrect allegation have been made by the petitioner that this Court issued oral direction to restore the disputed diesel pump in favour of the owner thereof, while no such direction or observation was made by this Bench. He further contends that since, this Court has issued several directions for the removal of encroachment from drains, water bodies, roads and other pubic properties and more particularly from the Municipal properties which are for pubic utilities, therefore, present application has been moved with ulterior motive for the purpose of Bench hunting.

Let us first of all examine as to whether we have extended the scope of this PIL or should we confine to the prayer made in the PIL.

Rule 3(3) of High Court of Uttarakhand PIL Rules reads as under:--

"3. Subject matter of "PIL-Petition" and "PIL-Letter":

(1) ...........

(2)...........

(3) A cause in public interest may be raised in respect of any of the following subjects:

(a) Matters relating to enforcement of fundamental rights, including social and economic justice, and more particularly, for the enforcement of human rights, including the right to live with dignity, enshrined in Article 21 of the Constitution of India, concerning sections of the society who are either extremely poor, illiterate, depressed, vulnerable, discriminated, marginalized, or who may have no easy access to justice, so that they do not remain victims of ignorance, deception or exploitation; including matters, on the aforesaid issues as would shock judicial conscience; or

(b) Matters relating to protection of environment, ecology, forests, marine life, wildlife, mountains, hills, rivers, lakes, other natural resources of water, historical monuments, etc.; including provision of insuring quality of life and living; or

(c) Matters relating to good governance, pertaining to inaction or wrongful action of Government/Public Authorities or such other Authorities which can be treated as instrumentalities of the State under Article 12 of the Constitution of India; wherein the Government/Public Authorities/Instrumentality of the State, has transgressed a constitutional mandate or any law, of has failed to perform a duty vested in it, including matters pertaining to corruption and maintenance of probity and morality in governance; or

(d) Matters relating to the enforcement of the Directive Principles of State Policy enshrined in Part IV of the Constitution of India, or issue of the like nature, or

(e) Matters of public interest not falling within sub-clauses (a) to (d) above, but are of a like nature, on being certified by the advocate representing the petitioner in a "PIL-Petition", or the concerned "Public Spirited Person: (in case where he himself is pursuing the "PIL-Petition", to be a cause in public interest, requiring consideration at the hands of the "High Court".

As per Rule 3(3) of Uttarakhand PIL Rules, this Court may entertain PIL in the matters relating to enforcement of fundamental rights, including social and economic justice, and more particularly, for the enforcement of human rights, including the right to live with dignity, enshrined in Article 21 of the Constitution of India, concerning sections of the society who are either extremely poor, illiterate, depressed, vulnerable, discriminated, marginalized, or who may have no easy access to justice, so that they do not remain victims of ignorance, deception or exploitation; including matters, on the aforesaid issues as would shock judicial conscience or matter relating to protection of environment, ecology, forests, marine life, wildlife, mountains, hills, rivers, lakes and other natural resources of water, historical monuments and matters relating to good governance pertaining to inaction or wrongful action of Government/public authorities or matter relating to the enforcement of the Directive Principles of the State Policy.

In the PIL, petitioner has sought the following reliefs :

"(i) To issue a writ, order or direction in the nature of Mandamus commanding the respondents to immediately declare the entire Nainital region as an Eco sensitive Zone'' as recommended by the Expert Committee of the Ministry of Environment and Forest, Government of India, in the year 2003.

(ii) To issue a writ, order or direction in the nature of Mandamus commanding the respondents to functionalize the District Disaster Management Authority and to channelize the sanction of all the development and construction plans through it, fixing strict accountability on its officials.

(iii) To issue a writ, order or direction in the nature of Mandamus commanding the respondents to immediately take strict measures for the clearance of construction over the recharge zones of Naini Lake, like inside the shoreline of Sukhatal, and to take other remedial measures for mitigation of the damage caused by the illegal and unplanned construction and developmental activities.

(iv) To issue a writ, order or direction in the nature of Mandamus commanding the respondents to immediately stop all the non Forest dangerous activity of plying illegal horses in the catchment area of Naini Lake and further to remove all the illegal encroachments and filth of horse dung from the forest area.

(v) To issue any other order or direction that this Hon''ble Court thinks fir in the facts and circumstances of the case.

(vi) To award the costs in favour of the petitioner."

We have issued several directions for the restoration, beautification and revival of Sukha Tal. We have also issued several directions - As how to protect, recharge, clean and beautify Naini and Sukhatal Lakes, life line of City of Nainital. Since, Naini Lake is the life line of Naintial and Nainital is well know hill station surrounded by the mountains, therefore, keeping in mind ecological balance and pollution, we have issued various directions for the removal of encroachments from the public land, more particularly, from drains carrying natural and rainy water to Naini Lakes as well as Sukhatal. Since Naini Lake is a main source of water for the residents of Nainital City, therefore, keeping in mind the public health and safety, we have issued directions that dogs should not be allowed around the Naini Lake so that their excreta should not go to the Naini Lake. We have also issued certain directions to remove dogs from the Mall road and Thandi Sarak areas keeping in mind the safety of the tourist and locals while having walk around the Naini Lake.

The allegation of the petitioner that we are using our personal knowledge in issuing various directions is nothing except ulterior motive and malice towards the Court to scandalize and lower the authority of this Court.

Mr. C.D. Bahuguna, learned Senior Counsel and Chairman of the Committee of Advocate Commissioners'' further submitted that petitioner who is the local resident is feeling uncomfortable by the directions issued by this Court time to time for the removal of the encroachments from the public properties, more particularly, from the properties of Municipality which were reserved for the public utility. He further contends that few friends and relatives of petitioner and Mr. Bisht, Counsel for the petitioner, are in illegal possession of the public properties, therefore, false allegations have been made in the affidavit, so that this Bench may be stopped in discharging its judicial duties. According to Mr. Bahuguna, learned Senior Advocate, petitioner cannot dictate in this PIL that this Court should not expand the scope of present PIL. Further contends that from the conduct of Mr. Bisht, learned counsel and Professor Ajay Singh Rawat, petitioner, it transpires that both of them are not interested in the PIL rather they are interested to obstruct this Court in discharging its function by tarnishing and scandalizing the reputation of this Court.

Hon''ble Apex Court in the case of Shri Sanjiv Datta reported in 1995 AIR SCW 2203 has held as under:--

"Abuses, attribution of motives, vituperative terrorism and defiance are no methods to correct the errors of the Courts. In the discharge of their functions the Courts have to be allowed to operate freely and fearlessly but for which impartial adjudication ill be an impossibility..... The Court''s verdict has to be respected not necessarily by the authority of its reason but always be reason of its authority. Any conduct designed to or suggestive of challenging this crucial balance of power devised by the Constitution is an attempt to subvert the rule of law and an invitation to anarchy."

Hon''ble Apex Court in the case of In Re: Ajay Kumar Pandey, Advocate, AIR 1998 SC 3299 : (1998) CriLJ 4606 : (1998) 6 JT 571 : (1998) 5 SCALE 393 : (1998) 7 SCC 248 : (1998) 2 SCR 87 Supp : (1998) AIRSCW 3229 : (1998) 7 Supreme 473 has held as under:--

"24. Thus, it is now settled that abuses, attribution of motives, vituperative terrorism and scurrilous and indecent attacks on the impartiality of the judges in the pleadings, applications or other documents filed in the Court or otherwise published which have the tendency to scandalise and undermine the dignity of the court and the majesty of law amounts to criminal contempt of court.

While a litigant as also his lawyer have the freedom of expression and liberty to project their case forcefully, it must be remembered that they must while exercising that liberty maintain dignity, decorum and order in the court proceeding. Liberty of free expression cannot be permitted to be treated as a licence to make reckless imputations against the impartiality of the judges deciding the case. Even criticism of the judgment has to be in a dignified and temperate language and without any malice.

In Dr. D.C. Saxena, Contemnor Vs. Hon''ble the Chief Justice of India, (1996) 5 AD 404 : AIR 1996 SC 2481 : (1996) CriLJ 3274 : (1996) 6 JT 529 : (1996) 5 SCALE 233 : (1996) 2 SCALE 54 : (1996) 5 SCC 216 : (1996) 3 SCR 677 Supp this court observed:--

"Advocacy touches and asserts the primary value of freedom of expression. It is a practical manifestation of the principle of freedom of speech. Freedom of expression in arguments encourages the development of judicial dignity, forensic skills of advocacy and enables protection of fraternity, equality and justice. It plays its part in helping to secure the protection or other fundamental human rights. Freedom of expression, therefore, is one of the basic conditions for the progress of advocacy and for the development of every man including legal fraternity practising the profession of law. Freedom of expression, therefore, is vital to the maintenance of free society. It is essential to the rule of law and liberty of the citizens. The advocate or the party appearing in person, therefore, is given liberty of expression. But they equally owe countervailing duty to maintain dignity, decorum and order in the court proceedings or judicial process. The liberty of free expression is not to be confounded or confused with licence to make unfounded allegations against any institution, much less the judiciary.''...

In other words, imputing partiality, corruption, bias, improper motives to a judge is scan deliration of the court and would be contempt of the court. Even imputation of lack of impartiality of fairness to a judge in the discharge of his official duties amounts to contempt The gravamen of the offence is that of lowering Ms dignity or authority or an affront to the majesty of justice. When the contemner challenges the authority of the court, he interferes with the performance of duties of judge''s office or judicial process or administration of justice or generation or production of tendency bringing the judge of judiciary into contempt."

Mr. Rajeev Singh Bisht, learned counsel for the petitioner, on being asked, stated that Professor Ajay Singh Rawat was not present in person in the Court either on 30th April, 2015 or on 7th June, 2015. Further stated that whatever has been written in the affidavit, it is written on the informations supplied by him to Professor Ajay Singh Rawat.

We make it clear that we have not issued any direction either orally or otherwise to restore the controversial Diesel Pump in favour of its owner. Nor we were supposed to issue such direction. Nor controversial Diesel Pump is in issue in the present PIL.

We are really shocked that Mr. Bisht, a practicing Advocate of this Court, on whose presence hearing was being held on each and every date, is leveling false and baseless allegations against us. Moreover, Professor Ajay Singh Rawat has filed present affidavit without verifying the correct facts. Therefore, conduct of Mr. Rajeev Singh Bisht, Advocate and Professor Ajay Singh Rawat clearly demonstrate that they wanted to scandalize or lower the authority of this Court or wanted to interfere with the proceedings of this Court. Their ulterior motive is self explanatory that they want to indulge in Bench hunting on frivolous grounds. We are prima facie satisfied that Shri Rajeev Singh Bisht, learned counsel as well as Professor Ajay Singh Rawat are guilty of criminal contempt of Court.

In the PIL this Court does not decide any lis between the two private individuals. This Court proceeds in the PIL as per Rule 3(3) of Uttarakhand PIL Rules which are reproduced hereinbefore.

In the present PIL, interim mandamus are being issued commanding the public/State Authorities to discharge their duties in accordance with law to protect ecological balance, preservation and maintenance of lakes, different natural drains carrying natural as well as rainy water, forests and eco-sensitive zones.

Although, we do not have any personal interest in the matter nor we are going to decide anything between two individuals and we are simply discharging our constitutional duties. However, we are disturbed by the conduct by Mr. Rajeev Singh Bisht, Advocate and Professor Ajay Singh Rawat. Mr. Rajeev Singh Bisht, Advocate is the lawyer of this Court having 12 years practice while Professor Ajay Singh Rawat is a senior citizen and permanent resident of Nainital. Both of them must understand their duties towards the Court.

At the same time, at this stage, we do not want to take any action against Shri Rajeev Singh Bisht, Advocate and Professor Ajay Singh Rawat, although prima facie, their conduct amounts to criminal contempt. As per old and great tradition of this Country, we feel that we should forgive and pardon both of them with hope and trust that both of them shall be more careful in future. At the same time, we note, if in future, either of them tries to scandalize or tarnish image of this great institution, they can be dealt with in accordance with law.

CLMA Nos. 5345 of 2015 and 1883 of 2015 stand dispose of accordingly.

Mr. A.K. Joshi, Addl. C.S.C. submits that team of experts from Geological Survey of India and IIT Roorkee have already visited Sukhatal as well as Balianala, therefore, progress made shall be placed before this Court within two weeks. He further submits that report pertaining to widening of road from Mohan Co. to B.D. Pandey Hospital shall also be placed before this Court within two weeks.

List on 19.06.2015.