Dismissed

Ajay Bada Jena v. Commissioner of Bhubaneswar Municipal Corporation

Orissa HC12 Aug 2020WP(C)/235/2020

Case brief

AI extract

What is this about?

The High Court dismissed a PIL filed by a social worker alleging a cremation ground was converted into a dumping yard, holding the petition suffered from suppression of material facts and was actually a private interest litigation.

What did the court decide?

Writ petition dismissed; costs of Rs. 10,000 imposed on the petitioner for abuse of court process.

Ajay Bada Jena Vs Commissioner of Bhubaneswar… — Public Procurement and Tenders | Orissa HC (2020)

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IN THE HIGH COURT OF JUDICATURE FOR ORISSA AT CUTTACK

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D.B. Writ Petition (Civil) (PIL) No.235 of 2020

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AFR

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Ajay Bada Jena …….. Petitioner - versus - Commissioner of Bhubaneswar Municipal Corporation and others ..…… Opp. Parties

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Advocate(s) who appeared in this case:-

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For Petitioner :	M/s. Antaryami Swain and A.N. Swain, Advocates.
For Opp.Parties:	Mr. B.K. Dash, Advocate [O.P. No.1]
	Mr. M.S. Sahoo, Addl. Government Advocate [O.P. No.2,3,5 and 6]

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HONOURABLE THE CHIEF JUSTICE MR. MOHAMMAD RAFIQ AND

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HONOURABLE DR. JUSTICE B.R. SARANGI

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J U D G M E N T

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12.08.2020

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Per: Dr. B.R. Sarangi, J.

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The petitioner, claiming to be a social worker,

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has filed this public interest litigation with the following

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prayer:-

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“In the premises, it is therefore prayed that your Lordship would be graciously pleased to allow this writ petition, issue a Rule NISI calling upon the opposite parties to file show cause as to why the prayer of the petitioner shall not be granted, if the opposite parties fail to file show cause or give insufficient cause, your Lordship would be graciously pleased to make the rule absolute and issue an appropriate writ to the appopos. Further direction be given directing to the opposite parties to examine the correctness of allegations, after finding at the truth take immediate steps to prevent the dumping yard on the cremation field on plot no.568, khata no.492, mouza-Patia, the area of land Ac.0.650 decimals the status of the land is cremation, to prevent the dumping yard near the human inhabited area near the public road, public office.”

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The factual matrix of the case, in hand, is that plot no.568 corresponding to khata no.492 measuring Ac.0.650 decimals of mouza-Patia has been recorded in Record of Right (RoR) published on 06.12.1973 as “smasan” (cremation ground). It is alleged in the writ petition that the said land is being utilized by Bhubaneswar Municipal Corporation (BMC) for dumping yard to accumulate waste materials, drain materials, latrine materials, etc. collected from different areas of Bhubaneswar Smart City. Consequentially, the nature and character of the land as cremation ground is being changed. Previously, dead bodies of the locality, including the village Patia and people residing in the apartments, were being cremated in the said land. The authorities with the help of some contractors cleaned the

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cremation ground by JCB machines and started construction of dumping yard which is just adjacent to the village road and human inhabited area, where apartments, private buildings, public offices and schools are situated. Since local people as well as outsiders, after making buildings and apartments, are permanently residing around the said land, in the event of construction of any dumping yard, the pungent gas emitted out of accumulated waste materials shall cause inconvenience to human inhabitants in the area. Even though the petitioner represented to the Commissioner, Bhubaneswar Municipal Corporation under Annexure-3, the same was not acceded to. Hence this application.

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Mr. A. Swain, learned counsel for the petitioner contended that Bhubaneswar Municipality is contemplating to construct a dumping yard over the land in question, which has been described as ‘smasan’ (cremation ground) in the RoR, by which the nature and character of the land will be changed and it will cause immense difficulties to the local people if such dumping yard would be constructed in the said locality. As such, due to emission of pungent gas, out of accumulated waste materials, drain materials, latrine

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materials, etc. in the dumping yard, environmental hazardous would be created which would cause immense difficulties to the human inhabitants in the area. It is further contended that if the land in question is permitted to be utilized for dumping yard, no cremation ground will be available for the local people. Therefore, by way of this public interest litigation, the petitioner, who is a social worker, has approached this Court by filing this writ petition seeking interference of this Court.

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Mr. B.K. Dash, learned counsel appearing for opposite party no.1, relying upon the preliminary counter affidavit, argued with vehemence and contended that the writ petition is not maintainable at the instance of the petitioner in view of the fact that the petitioner has not approached this Court with clean hand and, as such, the writ petition suffers from suppression of material facts. It is contended that in the name of public interest litigation, the petitioner has tried to vindicate his personal interest. Therefore, the writ petition should be dismissed in limine. It is further contended that the Bhubaneswar Municipal Corporation is not constructing any dumping yard on the case land, rather it is constructing a

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Micro Compositing Centre (MCC) for ward no.3 only and, as such, Micro Compositing Centre (MCC) is being constructed as per the direction of the National Green Tribunal and guidelines enumerated in Solid Waste Management Rules, 2016. Therefore, it is contended that the writ petition should be dismissed with cost.

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Mr. M.S. Sahoo, learned Addl. Govt. Advocate appearing for the State opposite parties contended that since the petitioner sought relief as against opposite party no.1, the State opposite parties have not filed their counter affidavit. As such, he supports the contention raised by learned counsel appearing for opposite party no.1-BMC.

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This Court heard Mr. A. Swain, learned counsel appearing for the petitioner; Mr. B.K. Dash, learned counsel appearing for opposite party no.1 and Mr. M.S. Sahoo, learned Addl. Government Advocate appearing for State opposite parties through video conferencing, and perused the record. Since pleadings have been exchanged, with the consent of learned counsel for the parties, the matter is disposed of finally at the stage of admission.

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Before delving into the core issue involved in

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this writ petition, it is essential to have a glance over the back-ground facts available on record. It is pleaded that due to conferment of Bhubaneswar Municipal Corporation with the status of Smart City and increase of socio-economic status of surrounding families of mouza Patia, which once upon a time was treated as a village, lost all characteristics of a village. As a result, the people of the area started to lead urban life style and being urbanized no people of the area preferred to cremate the dead bodies in the schedule plot, which has been mentioned in the RoR as “smasan”. But for their convenience, on the proposal of the people of the ward and their elected representatives, BMC developed the modern crematorium over plot nos.582 and 583 with an area of Ac.2.00 decimals named as “Patia-Gada Smasan”, which situated a few meter away from disputed plot no.568 and, as such, for that purpose the BMC has spent near about Rs.32.39 lakhs and the local people are using the same from the year 2016-17. Furthermore, a proposal was also submitted before the SubCollector, Bhubaneswar for change of kissam of plot no.568, khata no.492 from “smasan” to “Unnata Jyojana Joga”, which

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is still pending for consideration. The entire edeavour has been taken place by the BMC, in pursuance of the order dated 26.03.2019 passed by the National Green Tribunal, Principal Bench in O.A. No.606 of 2018 for implementation of various provisions of Solid Waste Management Rules, 2016 in a time bound manner. In the said order, the Tribunal has directed the Chief Secretary, Government of Odisha to submit the quarterly reports. To give effect to such direction of the Tribunal, BMC has identified sites in different parts of the city for establishment of 43 nos. of Micro Compositing Centre and 11 nos. of Material Recovery Facility (MRF) in BMC area as part of decentralized solid waste management system. Out of 43 nos. of MCCs, one MCC is going to be functional very soon, six MCCs are in the advance stage of completion and another 19 nos. of MCCs are in different stage of construction. Out of 11 nos. of MRFs, two MRFs are going to be functional very soon and other nine MRFs are in different stage of construction. The household segregated door to door waste collection and street sweeping garbage will be directly transported to MCCs and MRFs where the segregated garbage will be unloaded for MCCs and the dry waste will be unloaded

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at the MRFs for further segregation and chanalization to the recyclers.

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In the above backdrop, it cannot be said that the BMC has constructed any dumping yard on the case land where waste materials, latrines band drain materials and other foul waste materials collected from different areas of Bhubaneswar are being dumped. Rather, BMC is constructing a MCC for ward no.3 only, which is in compliance of the direction given by National Green Tribunal and guidelines enumerated in Solid Waste Management Rules, 2016. In MCC, the wastes are generally segregated and the bio-degradable wastes are processed to compost, which will be used by community people in agriculture and allied activities. The bio non-degradable wastes are taken to MRF centres for processing to produce reusable products and by this process all the wastes generated in the locality will be managed and, as such, all liquid waste will be taken to treatment plant made functional at Basuaghai.

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At this stage, it is pertinent to mention that there are five plots, such as, plot nos.583, 562, 564, 582 and

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568 measuring Ac.1.780 decimals, Ac.0.660 decimals,

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Ac.0.080 decimals, Ac.0.220 decimals and Ac.0.650 decimals respectively totaling to Ac.3.390 decimals within 300 meters radius having kissam-“smasan” (cremation ground). These plots are surrounded by high raised buildings and apartments. Mouza Patia, which once upon a time was treated as village, lost all its characteristics of a village due to rapid urbanization and development of BMC to Smart City and Corporation. Mouza Patia included to Corporation area, vide Government notification no.HUD/2205 dated 05.09.1988. The owners of the side plots, including the petitioner, are using these vacant “smasan” lands for their own purposes. Considering the demand of local people and their elected representatives, a cremation ground with modern amenities has been developed over plot nos.582 and 583 measuring Ac.2.00 decimals and rest plots of kissam-“smasan” are not used for the purposes of cremation since long and the local people have encroached those lands. Therefore, BMC proposed to construct the MCC over plot no.568 having area Ac.0.650 decimals after thorough discussion with local people and, as such, BMC has also submitted a proposal for change of kissam and dereservation of the said plot to the Sub-Collector, Bhubaneswar

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to facilitate the execution of MCC, as there was no other feasible land for the said purpose. As per the work order issued in favour of the contractors, when the same was under execution, at this juncture, the petitioner has approached this Court by filing the present application and this Court, vide order dated 09.06.2020, directed the parties to maintain status quo and thereafter the said interim order was continued vide order dated 15.07.2020. Therefore, the work has not been progressed.

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The above mentioned facts have not been brought on record by the petitioner in his public interest litigation petition, save and except the BMC is going to construct a dumping yard on the schedule plot. Thereby, the background facts, which lead BMC to go for construction of a MCC on the schedule land, have not been placed on record by the petitioner. Thereby, the writ petition suffers from suppression of material facts.

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It is worthwhile to note that in paragraph-2 of the writ petition, the petitioner has described himself as a social worker and stated that he had not filed any public interest litigation earlier regarding this particular matter. In

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paragraph-3 of the counter affidavit filed by opposite party no.1, it has been stated as follows:-

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“That, the present writ petition is not maintainable in view of the fact that the present writ is not all a PIL, rather, it is a Personal Interest Litigation. Therefore, the allegations are based on vested interest of the petitioner and suppression of many material facts.”

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To give more emphasis to the contents in paragraph-3 of the counter affidavit, in paragraph-5 of the counter affidavit filed

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by opposite party no.1, it has been stated as follows:-

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“…………… It is most relevant to mention here that the petitioner’s objection on the case land is baseless and guided by own vested interest as the petitioner himself has un-authorizedly constructed a Marriage Mandap in name of ‘Lal & LAWANS’ over plot no.569 and 579 which is Gramya Jungle and Bagayat-II in Kissam and also encroaching a piece of smasan land adjoining plot no.568 and using the case land as parking place. For such illegal use of land, notice has been issued to the owner of Marriage Mandap/Kalyan Mandap in the name of Lal Lawns by the Dy. Commissioner (North Zone) vide Notice under Letter No.2454 dated 20.11.2019. The petitioner has filed this writ petition on his own as self-declared social worker and no other person from the locality has objected on the project. ………………”

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The petitioner has also filed rejoinder affidavit,

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paragraph-8 whereof reads as under:-

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“…………. It is further alleged by opposite party no.1 that the petitioner had unauthorizedly constructed a marriage Mandap in the name of ‘Lal and Lawns’ over plot no.569 and 579 which is

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Gramya Jungle and Bagayat-II in Kissam and also encroaching upon a place of smasan land adjoining plot no.568 and using the case land as parking space, for such illegal use of land notice has been issued to the owner of marriage Mandap, Kalyan Mandap in the name of ‘Lal and Lawns’ by the Deputy Commissioner, BMC (North Zone) vide notice under letter no.2454 dated 20.11.2019 which allegation by Deputy Commissioner, BMC North Zone are false and baseless. No marriage Mandap has been constructed on the communal land. If it is in the communal land then why action has not yet been done to evict encroachers.”

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Law is well settled that pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned to the question(s) in issue, so that the parties may adduce appropriate evidence on the said issue. It is also well settled in law that “as a rule relief not founded on the pleadings should not be granted.” Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties.

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In Narmada Bachao Andolan v. State of

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Madhya Pradesh , AIR 2011 SC 1989, the apex Court held that it is a settled proposition of law that a party has to plead

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its case and produce/adduce sufficient evidence to

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substantiate the averments made in the petition and in case the pleadings are not complete the Court is under no obligation to entertain the pleas.

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In view of the above principle of law laid down by the apex Court, as it appears from the pleadings available on record, the petitioner has not pleaded nor adduced any evidence to substantiate his claim with regard to construction of dumping yard on the schedule land.

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Now, it is to be seen whether the present writ petition filed in the guise of public interest litigation is for the betterment of the society at large or for benefiting any individual.

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In Malik Bros v. Narendra Dadhich, (1999) 6

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SCC 552, the apex Court held as follows:-

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“… a public interest litigation is usually entertained by a Court for the purpose of redressing public injury enforcing public duty, protecting social rights and vindicating public interest. The real purpose of entertaining such application is the vindication of the rule of law, effect access to justice to the economically weaker class and meaningful realization of the fundamental rights. The direction and commands issued by the courts of law in a public interest are for the betterment of the society at large and not for benefiting any individual. But if the Court finds that in the garb of a public interest litigation actually an individual’s interest is sought to be carried out or protected, it would be the bounden-duty of the Court

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not to entertain such petitions as otherwise a very purpose of innovation of public interest litigation will be frustrated. It is in fact a litigation in which a person is not aggrieved personally but brings an action on behalf of the downtrodden mass for the redressal of their grievance.”

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In view of the law laid down by the apex Court, in our considered opinion, on Public Interest Litigation (PIL), redressal of public injury, enforcement of public duty, protection of social rights and vindication of public interest must be the parameters for entertaining a PIL. The Court has a bounden duty to see whether any legal injury is caused to a person or a cluster of persons or an indeterminate class of persons by way of infringement of any Constitutional or other legal rights while delving into a PIL. The existence of any public interest as well as bona fide are the other vital areas to come under the Court’s scrutiny. In absence of any legal injury or public interest or bona fide, a PIL is liable to be dismissed at the threshold. It is to be borne in mind that ultimately it is the rule of law that is to be vindicated. As such, there is a need for restrain on the part of the Public Interest Litigants when they move courts. The Courts should also be cautious and selective in accepting PIL as well.

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Public Interest Litigation which has now come to

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occupy an important field in the administration of law should not be ‘publicity interest litigation’ or ‘private interest litigation’ or the latest trend ‘paisa income litigation’. If not properly regulated and abuse averted, it becomes also a tool in unscrupulous hands to release vendetta and wreck vengeance, as well. There must be real and genuine public interest involved in the litigation and not merely an adventure of knight errant or poke ones nose into for a probe. It cannot also be invoked by a person or a body of persons to further his or their personal causes or satisfy his or their personal grudge and enmity. Courts of justice should not be allowed to be polluted by unscrupulous litigants by resorting to the extraordinary jurisdiction. A person acting bona fide and having sufficient interest in the proceeding of public interest litigation will alone have locus standi and can approach the Court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration.

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In Ashok Kumar Pandey v. State of West Bengal , 2003 (9) Scale 741, the apex Court held as follows:

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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 and 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 armory of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. 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 not allow its process to be abused for oblique consideration. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies deserves to be thrown out by rejection at the threshold and in appropriate cases with exemplary costs.”

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Laying down certain conditions on which the Court

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has to satisfy itself it was observed:

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“The Court has to be satisfied about-

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(a) the credentials of the applicant;

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(b) the prime facie correctness or nature of the

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information given by him;

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(c) the information being not vague and indefinite;

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The information should show gravity and seriousness involved. Court has to strike a balance between two conflicting interest;

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(i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and

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(ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive action. In such case, however, the Court cannot afford to be liberal.”

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The apex Court, on the point of exercising restraint,

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held that that it has to be very careful that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to be executive and legislature. The Court hardening its stand said:-

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“The court has to act ruthlessly while dealing with imposters and busy-bodies or meddlesome interlopers impersonating as public-spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of pro bono public, though they have no interest of the public or even of their own to protect.”

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In T.N. Godavarman Thirumulpad v. Union

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of India , (2006) 5 SCC 28, the apex Court, relying upon the

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judgments of S.P. Gupta v. President of India, AIR 1982

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SC 149 : 1981 Supp. SCC 87, Janata Dal v. H.S. Chowdhary , AIR 1993 SC 892, after noticing that lakhs of

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rupees had been spent by the petitioner to prosecute the case, held as under:

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“it has been repeatedly held by the Court that none has a right to approach the Court as a public interest litigant and that Court must be careful to see that the member of the public who approaches the Court in public interest, is acting bona fide and not for any personal gain or private profit or political motivation or other oblique consideration.

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…………….. while the Court has laid down a chain of notable decisions with all emphasis

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at their command about the importance and significance of this newly developed doctrine of PIL, it has also hastened to sound a red alert and a note of severe warning that courts should not allow their process to be abused by a mere busybody, or a meddlesome interloper or wayfarer of officious intervener without any interest or concern except for personal gain or private profit or other oblique consideration.”

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Applying the test as laid down by the apex

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Court in the aforesaid judgments to the present context, it appears that the forum of public interest litigation is being misused and become hindrance for carrying out developmental activities in the villages, towns and cities including BMC and there is a procedure prescribed for carrying out the developmental activities, which in this case in order to implement the direction given by the National Green Tribunal and to give the benefit of Smart City to the local people if BMC is constructing a MCC for ward no.3, it cannot be said that illegality or irregularity has been committed by the authority so as to cause interference by this Court.

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Undisputedly, the petitioner has approached this Court of equity invoking jurisdiction under Articles 226 and 227 of Constitution of India.

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In Ramjas Foundation v. Union of India , AIR

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1993 SC 852, the apex Court held that who seeks equity must do equity. The legal maxim “ Jure Naturae Aequum Est Neminem cum Alterius Detrimento Et Injuria Fieri Locupletiorem ”, means that it is a law of nature that one should not be enriched by the loss or injury to another.

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Similar view has also been taken in K.R. Srinivas v. R.M. Premchand, (1994) 6 SCC 620, where the apex Court held that when a person approaches a Court of Equity in exercise of its extraordinary jurisdiction under article 226/227 of the Constitution, he should approach the Court not only with clean hands but also with clean mind, clean heart and clean objective.

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In Noorduddin v. K.L. Anand (1995) 1 SCC

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242, the apex Court held that Judicial process should not become an instrument of oppression or abuse of means in the process of the Court to subvert justice for the reason that the interest of justice and public interest coalesce. The Courts

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have to weigh the public interest vis-à-vis private interest

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while exercising their discretionary powers. Easy access to

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justice should not be misused as a licence to file misconceived and frivolous petitions.

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Similar view has also been taken in Dr. Buddhi Kota Subbarao v. K. Parasaran , AIR 1996 SC 2687, and Ramniklal N. Bhutta v. State of Maharashtra , AIR 1997 SC 1236.

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Considering the facts of the present case vis-àvis the law laid down by the apex Court, this court is of the considered view that the writ petition suffers from suppression of material facts and, as such, the entire endeavor made by the learned counsel for the petitioner to pursue the Court for grant of relief by wasting the valuable time of the Court amounts to abuse of process of Court. Thus, we condemn the

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filing of such frivolous and vexatious litigation at the instance of the present petitioner.

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In view of filing of such misconceived and frivolous petition, the petitioner has abused the process of Court and in that case, such litigant is not required to be dealt with lightly.

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In Dr. Budhi Kota Subbarao v. K.

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Parasaran , AIR 1996 SC 2687, the Supreme Court observed

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as under:-

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“No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes. However, access to justice should not be misused as a licence to file misconceived and frivolous petitions.”

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Similar view has also been reiterated by the apex Court in

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K.K. Modi v. K.N. Modi , AIR 1998 SC 1297, Ashok Kumar Pandey v. State of West Bengal , AIR 2004 SC 280, T.N. Godavarman Thirumulpad v. Union of India , AIR 2006 SC 1774, B. Srinivasa Reddy v. Karnataka Urban Water

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Supply & Drainage Board Employees’ Association , AIR 2006 SC 3106, Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra , AIR 2008 SC 913 and Chaman Lal Saraf (dead thr. LRs.) v. State of Haryana , (2015) 3 SCC 552.

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In Sabia Khan v. State of Uttar Pradesh ,

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AIR 1999 SC 2284, the apex Court held that filing totally misconceived petition amounts to abuse of process of the Court and such litigant is not required to be dealt with lightly.

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23. In Indian Council for Enviro-Legal Action

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v. Union of India , (2011) 8 SCC 161, the apex Court held as

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under:-

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“In consonance with the principle of equity, justice and good conscience judges should ensure that the legal process is not abused by the litigants in any manner. One way to curb this tendency is to impose realistic costs, which the Respondent or the Defendant has in fact incurred in order to defend himself in the legal proceedings. The courts would be fully justified even imposing punitive costs where legal process has been abused.”

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Accordingly, in that case, the applicant-industry was directed to pay costs of litigation on account of enormous court’s time which had been wasted for all those years. The apex Court directed the applicant-industry to pay costs of Rs.10 lakhs in both the interlocutory applications.

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In view of the facts and circumstances, as well as settled position of law, as discussed above, this Court is of the considered view that the writ petition is devoid of any merit and thus dismissed.

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However, for wasting Court’s time, which amounts to abuse of the process of Court, this Court imposes

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cost of Rs.10,000/- (rupees ten thousand) against the petitioner so as to give a caution to the litigants not to file

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such frivolous application in future seeking blanket relief from this Court. The aforesaid cost so imposed shall be deposited by the petitioner in the Advocate’s Welfare Fund of the Orissa High Court Bar Association within a period of one month hence, failing which recovery will be made by following due process of law.

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As Lock-down period is continuing for COVID-19, learned counsel for the petitioner may utilize the soft copy of this judgment available in the High Court’s official website or print out thereof at par with certified copies in the manner prescribed, vide Court’s Notice No.4587 dated 25.03.2020.

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(DR. B.R. SARANGI) (MOHAMMAD RAFIQ) JUDGE CHIEF JUSTICE

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Ashok Jagdeb,P.A/ G.D.Samal,APS.

Ajay Bada Jena v. Commissioner of Bhubaneswar Municipal Corporation

Case brief

What is this about?

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Ajay Bada Jena v. Commissioner of Bhubaneswar Municipal Corporation

Case brief

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