Krishna Mohan vs State of U.P.and Others

N.K. Mehrotra, J.—This is a petition for issuing a writ in the nature of mandamus directing the opposite party No. 1 State of U.P. to pass necessary orders directing the opposite party No.3 the Central Bureau of Investigation to investigate the matters relating to Civil Aviation Department right from the time of taking over Cooperative Hind Flying Club sometime in the year 1980 till date in respect of the deals made by the officers/officials of the Civil Aviation Department in respect of the Aircrafts, spare parts, scrapes etc. and to file a case against the responsible officers/officials of the Civil Aviation Department.

This writ petition has been filed by a practising Advocate Shri Krishna Mohan in public interest. This matter is cognizable by a Division Bench but in view of the provisions in Rule 10(1) of Chapter V of the Rules of the Court, this writ petition being filed in vacations, it has been heard by this Court.

I have heard the petitioner Shri Krishna Mohan, Advocate and Shri S.A.A. Rizvi, learned Chief Standing Counsel representing the opposite parties 1 and 2. A short counter affidavit has been filed on behalf of the opposite parties 1 and 2 which has been taken on record at the time of hearing on admission.

Learned Chief Standing Counsel has also filed the entire record relating to the subject matter for which the investigation by the C.B.I. has been sought at the direction of this Court. I have perused that record also. According to the petitioner, he is a practising Advocate and has been doing social work in various fields. According to him, he has filed this writ petition to point out financial irregularities in the department of Civil Aviation, it is stated that the State Government took over Cooperative Hind Flying Club after liquidation and acquired planes, buildings, spare parts and other valuable articles and assets after the payment of considerable amount. It is alleged that the officers of the Civil Aviation Department have been using the planes, buildings and other assets for their own use and have been misappropriating the said property in the shape of aircraft etc. The matter in question involves gross misuse, misappropriation and embezzlement and financial losses to the State Exchequer and the petitioner being a tax payer, is duty bound to get the entire matter investigated by an impartial investigation agency like Central Bureau of investigation as the opposite party No.1 has been acting in an unfair manner despite the writ petition filed in this regard by Advocates earlier. The petitioner has referred the news item on 22.11.2001 published in Hindustan Times and on the basis of this news item, he has stated that huge embezzlement and misappropriation of the Government funds have been made by the highly placed officers of the Civil Aviation Department and he has come to know that there is a huge embezzlement of the Government funds. The petitioner has filed the paper cutting Annexures1 and 2. The said newspaper report indicate that scraps of the year 1992 were American Manufactured and Barren to Twin Engine plane Model of Chip Munk Beech Barron, B55, A32, 33, 34 and 35 and series of other planes. According to the press report, minimum cost of spare parts varied from Rs.5 to 8 crores but the same has been sold by petty amount and the major portion and the sale was pocketed by the senior officials of the Civil Aviation Department. It is submitted that the State Government has directed the Directorate of Civil Aviation to prepare a list of records relating to the Cooperative Hind Flying Club and incharge of Kanpur centredirected some of the officials to prepare but the officer incharge of Flying Centre at Kanpur warrant the file relating to the sale of aircrafts, spare parts of scrapes so as to avoid investigation by the competent authority in respect of the embezzlement or misappropriation. The petitioner has again referred a news item dated 30.11.2001 Annexure3 to the writ petition showing all these bungling and misappropriation.

The petitioner has further referred a report dated 28.8.1993 about the damages of a helicopter and submitted that the State Government did not take any step in the matter and spare parts amounting to more than Fts.4 crores were misappropriated with the connivance of the senior officials of the Civil Aviation Department. It is also alleged that Damar Company had paid Rs.5 lakhs through a cheque in the Bank account of one of the high officers of the Civil Aviation Department. With these allegations the petitioner has made following prayer:

"1. Issue a writ, order or direction in the nature of mandamus directing the opposite party No.1 to pass necessary orders directing the opposite party No.3 to investigate the entire matters relating to the Civil Aviation Department right from the time of taking over Cooperative Hind Flying Club sometime in 1980 till date in respect of the deals made by the officers/officials of the Civil Aviation Department in respect of aircrafts, spare parts and scraps etc. and to file a case against the responsible officers/officials of the Civil Aviation Department."

At the time of hearing on admission, I have heard this petition finally with the consent of the parties and the petitioner has given a statement that he does not want to file any rejoinder affidavit even after seeing the short counter affidavit.

Before coming to the merit of the case, I would like to discuss whether there is any justification for filing of the writ petition as public interest litigation and whether the instant petition comes within the scope of public interest litigation.

"The word PIL has been defined in various dictionaries and in Strouds Judicial Dictionary, Vol.4 (IVth ed.) public interest is defined thus:

"Public lnterest1: A matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected." (Per Cambel C.J. in R. v. Bedfordshire).

In Black''s Law Dictionary 6th edn., ''public interest'' is defined as follows:

"Public Interest" Something in which the public, the community at large, has some pecuniary interest or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of "local, state or national government...." (Also quoted in Janta Pal''s case reported in. 1993 SCC (Cri) page 36 at page 61 and 62).

From the aforesaid two definitions, it would be evident that the petitioner has not shown that either public at large have any pecuniary interest in the matter in question or that their legal rights or liabilities are affected and therefore, this writ petition as Public Interest Litigation is not maintainable.

The Hon''ble Supreme Court and this court have time and again laid down the parameters and in the most celebrated case on PIL i.e. S.P, Gupta''s case reported in 1981 SCC supp. 87 in para 24, it has been stated that "we must� be careful to see that the member of the public, who approaches the court in cases of this kind, is acting bonafide and not for personal gain or private profit or political motivation or other oblique consideration. The court must not allow its process to be abused by politicians and others to delay legitimate administrative acting or to gain a political objective." This view was of Hon''ble Justice Bhagwati which was agreed by all other judges namely; Justice Gupta, Justice Tulzapulkar, Justice Fazal Ali, Justice Desai and Justice Pathak.

It is further submitted that thereafter Hon''ble Supreme Court in a famous case of Janta Dal reported in 1993 SCC (Cri.) 36, in paragraphs 109, 110 and 111, dealt extensively with the matter which could be covered to be under title of Public Interest Litigation and in paragraph 109, it has been held that only a person acting bonafide and having sufficient interest in the proceedings of PIL will alone have a locus standi and can approach the court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights but not a person for personal gain or private profit or political motive or any oblique consideration.

It was further clarified by the Hon''ble Supreme Court that on account of pendency of PIL innumerable days are wasted which time otherwise could have been spent for the disposal of the cases of the genuine litigants and fostering and developing the newly invented concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed, unrepresented and unheard but in the present case no such case has either been pleaded or proved which clearly indicate the move behind the litigation. The relevant paragraphs of judgment of the Hon''ble Supreme Court in the case of Janta Dal are quoted hereunder:

It is thus clear that only a person acting bonafide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly, vexatious petition under the colour of PIL brought before the court for vindicating any personal grievance deserve rejection at the threshold.

It is depressing to note that on account of such trumpery proceedings initiated before the courts, innumerable days are wasted which time otherwise could have been spent for the disposal of the cases of the genuine litigants. Though we are second to none in fostering and developing the newly invented concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances relating to civil matters involving properties worth hundreds of millions of rupees and criminal cases in which persons sentenced to death facing gallows under untold agony and persons sentenced to life imprisonment and kept in incarceration for long years, persons suffering from the undue delay in service matters, Government or private persons awaiting the disposal of tax cases wherein huge amounts of public revenue or unauthorized collection of tax amounts are locked up, detenus expecting their release from the detention orders etc. etc. are all standing in a long serpentine queue for years with the fond hope of getting into the courts and having their grievances redressed, the busybodies, meddlesome interlopers, way fares or officious interveners having absolutely no public interest except for personal gain or private profit either for themselves or as personal gain or private profit either for themselves or as proxy of others or for any other extraneous motivation or for galore of publicity break the queue mufling their faces by wearing the mask of public interest litigation, and get into the courts by filing vexatious and frivolous petitions and thus criminally waste the valuable time of the courts and as a result of which the queue standing outside the doors of the courts never moves which piquant situation creates a frustration in the minds of the genuine litigants and resultantly they lose faith in the administration of our judicial system.

in the words of Bhagwati, J. (as he then was)" the Courts must be careful in entertaining public interest iitigations or in the words of Sarkaria, J. "the appiications of the busybodies should be rejected at the threshold itself" and as Krishna Iyer, J. has pointed out, "the doors of the courts should not be open for such vexatious litigants."

Further learned Chief Standing Counsel has referred a decision of the Apex Court in Narmada Bachao Andolan v. Union of India. 2000 (10) SCC 664, wherein it was held by the Hon''ble Supreme Court as under:

"public interest litigation was an innovation essentially to safeguard and protect the human rights of those people who were unable to protect themselves. Hon''ble Supreme Court cast further caution that the balloon should not be inflated so much that it bursts and public interest litigation should not be allowed to degenerate to becoming publicity interest or private inquisitiveness litigation. The Hon''ble Supreme Court further went on to say that while exercising jurisdiction in PIL cases the court has not forsaken its duty and role as a court dispensing justice in accordance with law it is only where there has been a failure on the part of any authority in acting according to law or in nonaction or acting in violation of the law. The relevant paragraphs 230 and 231 are quoted here under:

"230. Public Interest Litigation (PIL) was an innovation essentially to safeguard and protect the human rights of those people who were unable to protect themselves. With the passage of time PIL jurisdiction has been ballooning so as to encompass within its ambit subjects such as probity in public life, granting of largesse in the form of licenses, protecting environment and the like. But the balloon should not be inflated so much that it bursts. Public Interest litigation should not be allowed to degenerate to becoming publicity interest litigation or private inquisitiveness litigation.

While exercising jurisdiction in PIL cases the courts have not forsaken its duty and role as a law dispensing justice in accordance with law. It is only where there has been a failure on the part of any authority in acting according to law or in nonaction or acting in violation of the law that the court has stepped in. No directions are issued which are in conflict with any legal provisions. Directions have, in appropriate cases, been given where the law is silent and inaction would result in violation of the fundamental rights or other legal provisions."

In Balko Employees Union v. Union of India. (2002) 2 SCC 333, the Hon''ble Supreme Court laid down the following parameters which may be satisfied Before entertaining any public interest litigation:

"While PIL initially was invoked mostly in cases connected with the relief to the people and the weaker sections of the society and in areas where there was violation of human rights under Article 21, but with the passage of time, petitions have been entertained in other spheres. Prof. S.B. Sathe has summarized the extent of the jurisdiction which has now been exercised in the following words:

"PIL may, therefore be described as satisfying one or more of the following parameters. These are not inclusive but merely descriptive.

Where the concerns underlying a petition are not individualist but are shared widely by a large number of people (bonded labour, undertrial prisoners, prison inmates.)

Where the affected persons belong to the disadvantaged sections of society (women, children, bonded labour, unorganized labour etc.)

Where judicial law making is necessary to avoid exploitation (intercountry adoption, the education of the children of the prostitutes).

Where judicial intervention is necessary for the protection of the sanctity of democratic institutions (independence of the judiciary, existence of grievances redressal forums).

Where administrative decisions related to development are harmful to the environment and jeopardize people''s right to natural resources such as air or water."

Learned Chief Standing Counsel has further referred S.P. Gupta v. Union of India. 1981 Suppl. SCC 87: Sachhidanand Pandey v. State of West Bengal, (1987) 2 SCC 1995: Subhash Kumar v. State. (1991) 1 SCC 598: Janta Dal v. S.S. Choudhary. (1992) 4 SCC 305, the ratio of all these decisions is that the PIL can be entertained where there has been an element of violation of Article 21 or of human rights or where the litigation has been initiated for the benefit of poor and underprivilege who are unable to come to the court due to some disadvantage. In this case also, it is the legal rights which are secured by the courts.

It has been further held by the Hon''ble Supreme Court that public interest litigation was not meant to be a weapon to challenge the financial or economic decisions which are taken by the Government in exercise of their administrative power and a person personally aggrieved by any such decision, which he regards as illegal, can impugn the same to any court of law but a public interest litigation at the behest of the stranger ought not to be entertained. In view of the aforesaid legal propositions settled by the Apex Court of this country, I am of the opinion that in the instant case, the petitioner has not established any one of the parameters fixed by the Apex Court and therefore this writ petition must fail.

Now coming to the merit of the case. I find that the petitioner has based his allegations in the writ petition on the basis of the newspaper clipping dated 22.11.2001, 23.11.2001 and 30.11.2001 which are Annexures1 to 3 to the writ petition. I find that the entire claim to the relief has been based on the report cf newspaper. I am of the view that the Hon''ble Supreme Court at several occasions, has dealt with such situation where the averments were made on the basis of the newspaper reports and it has been held by the Hon''ble Supreme Court that the newspaper reports are not admissible in evidence and no reliance can be placed on the newspaper reports.

In Sarnant N. Balkrishna v. George Fernandese, AIR 1969 SC 1201, it has been held that:

"A news item without any further proof of what had actually happened through witnesses is of no value. It is at best a second hand secondary evidence. It is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process, the truth might get pervertedor garbled. Such news item cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible"

In Laxmi Raj Shetty v. State of Tamilnadu. 1988 Criminal Law Journal 1983, it has been held as under:

"We cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by evidence aliunde. A report in a newspaper is only hearsay evidence. A newspaper is not one of the documents referred to in S.78(2) of the Evidence Act, 1872 by which an allegation of fact can be proved. The presumption of genuineness attached under S.81 of the Evidence Act to a newspaper report cannot be treated as proved of the facts reported therein."

In Ram Swaroop Bagaari v. State of Rajasthan, reported in AIR 2002 Raj. 27, it has been held as under:

"A newspaper is not one of the documents referred to in S.78(2) of the Evidence Act by which the allegation of fact can be proved and that the presumption of genuineness attached under S.81 of the Evidence Act to a newspaper report cannot be treated as proof of the facts reported therein. A statement of fact contained in a newspaper is merely hearsay and therefore inadmissible in evidence in the absence of the maker of the statement appearing in Court and deposing to have perceived the fact report."

In view of the aforesaid legal proposition referred by the learned Chief Standing Counsel, I am of the opinion that newspaper reports are not admissible evidence which could be relied on for the purposes of this case.

So far as the facts of the writ petition are concerned, I have taken into consideration the counter affidavit and the official record filed by the Chief Standing Counsel. It is stated in the short counter that earlier also, five, writ petitions of the same nature have been filed before this Court on the same subject, three petitions by the Advocates and two by journalists. All the five petitions were dismissed by this Court through detailed judgments. The copies of the judgment passed by this Court in five writ petitions of the same nature have been filed as Annexures 1 to 6 to the counter affidavit. After taking into consideration, the orders of the various writ petitions, the State Government got the matter investigated by a committee and in April, 2001 constituted a committee to consider the financial and administrative function of the Civil Aviation Department the point mentioned in the earlier writ petitions Nos.338 of 2001 (M/B): Ashish Kumar Singh v. State of U.P. and others, writ petition No.2390 (M/B) of 1998: Rajeev Chaturvedi v. State of U.P. and others and Writ Petition No.2084 (M/B) of 1998: Rajeev Chaturvedi v. State of U.P. and others. The committee was constituted to consider entire functioning of the Civil Aviation Department in view of the points raised in the writ petitions and submitted the report to the State Government on 3.5.2001 which was accepted by the Government at the highest level.

It further appears that in the writ petition No.3856 (M/B) of 2001, a prayer was made to the effect that the opposite party be directed to place the entire record with respect to the sale of old aircrafts and purchase of new aircrafts in the year 1989 in Civil Aivation Department before this court in a sealed cover including the proceedings showing the act, if any after the judgment and order dated 2.2.2001 passed in a writ petition No.338 (M/B) of 2001: Ashish Kumar Singh v. State of U.P. and others and further it was prayed that opposite parties be commanded to hold an inquiry about the delay relating to the sale of old aircrafts and purchase of new aircrafts in the year 1989, an independent agency preferably by Central Bureau of Investigation. A perusal of the judgment in the aforesaid writ, goes to show that the entire record relating to inquiry was produced before this Court and after perusal of the record, this court vide judgment and order dated 17.9.2001 has held that from the record, it is crystal clear that a detailed inquiry has been held and on the basis of the recommendations, the State has taken a decision. The Division Bench recorded the finding to the following effect:

"The matter has been enquired into a detail by a committee constituted by the State Government and the recommendation of the committee have already been accepted by the State Government.

In light of the above, we find that the writ petition has been filed for gaining cheap popularity and therefore, it is a motivated petition. The petitioner has not taken utmost care which should have been taken by him before filing this Public Interest Litigation."

The petitioner of the earlier writ petition No.338 (M/B) of 2001: Ashish Kumar Singh moved an application for modification of the judgment and order dated 17.9.2001 and after hearing the parties, the Division Bench of this court rejected the application on 12.10.2001 and has held as under:

"However, for issuing direction to C.B.I, or to any other independent agency is concerned, complete record was produced by the learned Additional Chief Standing Counsel at the time when the hearing took place from which it was evident and crystal clear that the enquiry has been conducted in detail and the matter went up to the highest level where the recommendation of inquiry committee was accepted, accordingly this Court was of the view that no direction is required to be issued to C.B.I, or any other authority to investigate the matter.

No reason has been indicated even in the present application showing any mistake apparent on the fact of the judgment. Four different writ petitions were filed before this court for a direction to C.B.I, or any other independent agency to investigate into the matter but no directions were ever issued for the investigation as prayed. Since the matter has been enquired in detail by the committee and its commendation has been accepted as referred hereinabove, we do not find any occasion to grant any such relief as prayed by the petitioner in this application."

Further I find that one earlier writ petition No.863 (M/B) of 2003 was filed by one Shri Girish Kumar Pandey, an Advocate and the same was dismissed by a detailed order by a Division Bench presided over by Hon''ble the Chief Justice. Annexures 1 and 2 to the present writ petition were also the subject matter of that writ petition No.863 (M/B) of 2003 filed by Shri Girish Kumar Pandey. In the writ petition No.863 (M/B) of 2003, record of the inquiry held at the Government level and also the record relating to weeding out of the file was produced before this Court and this Court dismissed the petition by judgment and order dated 11.3.2003. A relevant portion of the judgment and order dated 11.3.2003 is as follows:

"We have also scrutinized the files containing several Government letters indicating that the weeding of files relating to trainees had been ordered by the Government and the Competent Authority proceeded to comply with the orders, and thereafter, weeding took place in accordance with rules. The process of weeding the old files is the essential feature of all the office and record rooms.

The power for directing the C.B.I, to hold an inquiry to proceed with investigation in a case, can be exercised only when there is sufficient material before the court to come to a prima facie conclusion that there is need for such inquiry. Newspaper reports are hearsay in nature and inadmissible unless maker of the statement is examined. The news items annexures 1 and 2 do not provide adequate basis to take judicial note of the facts which seem to depend upon surmises and conjectures."

Annexure 16 to the short counter affidavit makes it clear that all the issues raised in this writ petition have been subject matter of the earlier writ petition No.863 (M/B) of 2003 decided on 11.3.2003 by a Division Bench of this court. Only one fact relating to the U.P. A.S.S. as stated in paragraph 10 of the writ petition was not the subject matter of the earlier writ petition No.863 (M/B) of 2003 filed by Shri Girish Kumar Pandey. Now in this writ petition, learned Chief Standing Counsel has produced the record and it consists of one of the letter of Shri Rajendra Bhoonwal, Principal Secretary, Appointment Department, Government of U.P., Lucknow dated 22.4.2003 addressed to the Secretary, Central Vigilance Commissioner, Government of India intimating the Central vigilance Commissioner that the complaint made by Shri R.B. Singh was enquired into by the State Government and it was found to be frivolous and without any basis.

I find that the record produced by the Chief Standing Counsel clearly indicate that the allegations made in paragraph 10 of the writ petition were already inquired into on the complaint of one Shri R.B. Singh, Advocate by the State Government and the same were (found) to be frivolous and therefore, this issue also stand concluded by an inquiry conducted by the Government itself. I further find a photocopy of the sale deed on the record of the State Government. This sale deed was executed by one of the officers of the State Government transferring his property in consideration of Rs.5 lacs towards the sale consideration. So the allegations of receiving Rs.5 lacs is also malafide and does not require to be looked into in this writ petition or in any inquiry by C.B.I. or any other investigating agency. However, after hearing the parties, I am of the opinion that the prayer for investigation by the C.B.I, cannot be accepted on the basis of the inadmissible evidence being photocopies of the newspaper report containing vague allegations against the unnamed persons.

In Common Cause: a registered society v. Union of India. 1999 (6) SCC 667, it has been held by the Hon''ble Supreme Court that the directions for investigation can be given only if an offence is prima facie found to have been committed or a person''s involvement is prima facie established but directions to the C.B.I, to investigate whether any person has committed any offence or not, cannot be legally given and such direction would be contrary to the concept and philosophy of life and liberty enshrined under Article 21 of the Constitution of India. The same view was reiterated by the Apex Court in Secretary Minor Irrigation and Rural Engineering Services U.P. v. Sanagoo Ram Arya. 2002 (5) SCC 521. Most interesting feature which has been brought to my knowledge in this case is that Shri Girish Kumar Pandey who is a practicing Advocate of this Court after dismissal of his writ petition No.863 (M/B) of 2003, served a notice of the fresh writ petition in the office of the Chief Standing Counsel on 19.5.2003 but this writ petition was not filed after giving the notice to the C.S.C. and now this writ petition has been filed on the same lines on which Shri Girish Kumar Pandey has served the notice in the office of the Chief Standing Counsel of the State. The opposite party has enclosed the copy of that writ petition notice as Annexure No.7 to the counter affidavit and this fact satisfies my conscious in holding that Shri Girish Kumar Pandey, Aovocate and the present petitioner Shri Krishna Mohan, Advocate are in collusion and after being advised by some senior counsel, Shri Girish Kumar Pandey has not preferred to file, the petition after serving the notice merely because his earlier writ petition No.863 (M/B) of 2003 was filed or he must be waiting for a favourable bench or Shri Girish Kumar Pandey himself has promoted Shri Krishna Mohan, Advocate the petitioner to file the same writ petition in his own name.

In view of these state of affairs, it is prima facie established that there is somebody behind all these petitioners namely Shri Rajeev Chaturvedi, Advocate, Shri Ashish Kumar Singh, Shri Sunil Kumar Singh and Shri Girish Kumar Pandey, Advocate for misusing these highest forum of judiciary in the State to malign the department of Civil Aviation or the State Government and it appears to me that there is someone behind the curtain to tarnish the image of the Government by filing such frivolous public interest litigation. Therefore, I find it a fit case at the time of dismissal of the writ petition, to impose some heavy cost.

Moreover, the Central Bureau of Investigation has been unnecessarily impleaded. The highest investigating agency of the country is being impleaded in all these frivolous litigations, therefore it is desirable that C.B.I, should also be informed through this judgment about all these frivolous litigation filed one after the other and the State Government will provide the copy of this judgment to the C.B.I.

In view of the above, the writ petition is dismissed with cost of Rs.5,000/ payable to the State of U.P. opposite parties 1 and 2.

(Petition dismissed)