1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION PUBLIC INTEREST LITIGATION NO.10 OF 2005 Shri Mishrimal Jethamal Oswal Indian Citizen, aged 63 years, residing at 88/2, Radha Niwas, Lonavala, District Pune .. Petitioner. V/s. 1. The Municipal Council of Lonavala, through its Chief Executive Officer, Lonavala Municipal Council Building, Lonavala. 2. State of Maharashtra through the Secretary, Urban Development Department, Mantralaya, Mumbai 400 032. 3. The Collector of District Pune, Circuit House, Pune. 4. The Tata Power Company Ltd., having its registered office at Bombay House, Fort, Mumbai. 5. Sahara India Commercial Corporation Ltd., situated at Amby Valley, Lonavala. 6. The Commanding Officer, INS Shivaji, Lonavala, Pune 410 402. .. Respondents. Mr.K.K. Singhvi, senior advocate with Mrs.Tannu Mehta-Tiwari i/by Ms.Aparna Shinde for the petitioner. Mr.S.V. Pitre for the respondent No.1. Mr.P.M. Patil, Assistant Government Pleader for the respondent Nos.2 and 3. Mr.S. Aney, senior advocate, Mr.C.S. Balsara, Mr.H.N. Vakil and Mr.D.D. Mehta i/by M/s.Mulla & Mulla for the respondent No.4 (Tata Power Co. Ltd.) CORAM : R.M. LODHA & NARESH H. PATIL, JJ. 2 DATED : 8TH/9TH & 10TH AUGUST, 2006. ORAL JUDGMENT (Per R.M. Lodha, J.) This writ petition entitled public interest litigation, crystalises three issues for our consideration and decision : (one) Whether the writ petition is in pro bono publico; (two) Whether the disputed pathway and the old bridge is a public road / public street; and (three) Whether the closure of the said pathway and the old bridge by the respondent No.4 - Tata Power Company Limited is illegal, unjustified and unauthorised. 2. The controversy arises in the facts and circumstances, which we may notice immediately hereinafter. 3. Mishrimal Jethamal Oswal is the petitioner. He is inhabitant of Lonavala for the last 35 years. He has served as Municipal Engineer with the Lonavala Municipal Council and after his retirement claims to have been actively participating in the activities for improvement of civic facilities in Lonavala. In the Lonavala 3 village, Taluka Maval, District Pune, there is a dam. We shall refer to it as Lonavala dam. Lonavala dam is said to have been built somewhere in the year 1910. The water of the Lonavala dam is used through duct lines for production of electricity at Tata Hydro Electric Power Plant at Khopoli. 4. The petitioner says that right from boundary of the Lonavala dam on the eastern side their exists a pathway parallel to it running 775 meters. This pathway is said to have been dedicated to the public since inception of the Lonavala dam and the petitioner claims that members of the public have free ingress and egress to the said pathway. On the eastern side of this pathway, according to the petitioner, their exists a public road which was earlier known as ‘Sakur Pathar Road’ and thereafter as ‘INS Shivaji Road’ and now this road is known as ‘Jal Vaayu Marg’. INS Shivaji Road had to go through one way bridge starting at the end of the pathway on the south running parallel to the boundary of the Lonavala dam for about 200 meters. The petitioner’s case is that the said one way bridge is part of the public road and has been in use all throughout by the pedestrians and the motor vehicles including the State Transport Buses going to Bhushi Village. INS Shivaji Establishment had also been using the said one way bridge which is within the Municipal limits. The said 4 pathway and the one way bridge are said to have vested in the Municipal Council, Lonavala. 5. The petitioner has averred that by internal arrangement between the Municipal Council, Lonavala and INS Shivaji, the pathway and the one way bridge were maintained and lighted by INS Shivaji. 6. The pathway has been shown, according to the petitioner, as public road in the development plan of the Lonavala Municipal Council sanctioned in the year 1978. Even in the revised development plan of F-Ward of Lonavala of 1986, the pathway is shown public road. 7. The case of the petitioner is that in the month of July, 2004 or nearabout, the Municipal Council, Lonavala with some internal arrangement with respondent No.4 (Tata Power Company Limited), respondent No.5 (Sahara India Commercial Corporation Limited) and respondent No.6 (INS Shivaji) constructed a two-way bridge, parallel to the said oneway bridge, on the eastern side connecting INS Shivaji road. As a result thereof, the new two-way bridge is used on both the sides for vehicular traffic and the oneway bridge (or old bridge) for the pedestrians. 8. The grievance of the petitioner is that while 5 the new bridge was under construction, the respondent No.4 erected two iron gates, one on each end of the pathway, and stopped the public from using the said pathway except for an hour or two in the early morning and for evening walkers. In the month of September, 2004, the respondent No.4 closed the public road, going through the old bridge, by constructing a wall between the two bridges. According to the petitioner, the respondent No.4 has also put up an iron gate at the end of the old bridge so that the pathway which was earlier 775 meters has now become 975 meters in length and closed on both sides by iron gates. 9. Due to usurpation and closure of the pathway and the old bridge, the case of the petitioner is that, the public has been put to tremendous inconvenience and that now everyone going to Bhushi village has to walk over the new bridge having no footpath. The vehicular traffic being very heavy, the pedestrians are in constant danger of being runover. 10. The petitioner has inter-alia prayed that the respondent Nos.1 and 4 be directed to demolish the parapet wall and iron barricades and remove any obstruction on the pathway and the old bridge and allow the public to use the pathway and the old bridge without any hindrance. 6 11. In response to the writ petition, on behalf of respondent No.4, the first affidavit was filed on February 15, 2005. The respondent No.4 has raised the objection therein that the present writ petition is not a bona fide public interest litigation and that the petitioner is in reality espousing the cause of persons having bungalows nearby, particularly adjacent to the new bridge constructed by the Lonavala Municipal Council. It is alleged that these bungalow owners wish to utilise the pathway and the old bridge which in fact is the spillway and part of the Lonavala Dam belonging to respondent No.4. 12. The case of the respondent No.4, as set out in the said affidavit, is that they are holder of four licenses under the provisions of the Indian Electricity Act, 1910. The pathway and the old bridge are part of the land that was acquired by the State Government and the same was transferred to the Tata Hydro Electric Power Supply Company Limited (predecessor in interest of respondent No.4) for the purpose of generation of electricity. The respondent No.4 contends that in order to operate the dam, spillway was constructed which is a necessary safety feature of the dam. The spillway is a part of the dam and it has been constructed for the purpose of inspection, operation and maintenance of the 7 dam and the pathway on the spillway is not a road. The respondent No.4 has referred to the notifications dated January 15, 1972 and June 5, 1972 issued by the State Government under the provisions of the Official Secrets Act, 1923 and according to them the said notifications declare the disputed area ‘prohibited area’. That the breadth of the top of the spillway admeasures 3.5 metres and they allowed vehicular traffic to pass over it is admitted. They have also admitted that the top of the spillway was given to INS Shivaji for maintenance. They admit in the said affidavit that the aforesaid spillway was being used by public. They have referred to the protests made by them vide letters dated May 4, 1994, August 5, 1994, March 1, 1995, April 10, 1995 and October 5, 1995. The respondent No.4 has stated that in view of changing scenario, it was felt by them that the said spillway should be closed for public vehicular traffic and, accordingly, with an arrangement of Lonavala Municipal Council, a new bridge has been constructed by the Lonavala Municipal Council admeasuring 12 metres in width and the said bridge is open for the vehicular traffic as well as the pedestrians. The respondent No.4 claims that the spillway continues to be owned by them and the same being shown as public road in the development plan is totally irrelevant as it is in the ownership and possession of respondent No.4. The respondent No.4 has 8 denied that it has usurped any public road whatsoever or that the same has been used for ingress and egress of the local public of Lonavala for the last 50 years as alleged. According to them, no hardship will be caused to the public, if, the wall fencing and iron gates remain as it is. 13. The petitioner filed rejoinder on March 1, 2005 to the reply-affidavit dated February 15, 2005 submitted by respondent No.4. He reiterated that the present writ petition has been filed in public interest representing the cause of the public in general and not for bungalow owners of Lonavala as alleged by respondent No.4. He submitted that large number of people of Lonavala was supporting the cause espoused through the petition. In this regard, he annexed copy of the letter dated February 20, 2005 signed by many persons aggrieved by the action of respondent No.4 in blocking the access to the public road. He has referred to few writ petitions filed by him earlier espousing the cause of the public and succeeding therein. Justifying the present writ petition in the nature of public interest, he has stated that the matter relates to the closure of public road in which he has no personal interest but the villagers of Bhushi cannot afford to approach this Court due to their economic backwardness and that led him to file this writ petition in public interest, in which other members of 9 public are supporting. In the rejoinder, the petitioner reiterated that the disputed road is a public road which has been so used by the public in general for the last more than 50 years and that the ownership of the land beneath a public road is an irrelevant factor for deciding the usage of a public road. It is also stated by him that as and when the respondent No.4 made attempt to close the disputed public road by deploying its own security guards, the protests were raised. He has referred to the letter dated December 19, 1996 complaining to the Commanding Officer of INS Shivaji in this regard. 14. Thereafter, another affidavit on March 14, 2005 was filed by the respondent No.4. By and large, it is reiteration and repetition of the stand set up in the affidavit filed on February 15, 2005. In this affidavit, respondent No.4 has stated that since the traffic increased considerably, they leased out a certain portion of its land for constructing 12 metres wide two-way bridge and the two-way bridge has been constructed by the Lonavala Municipal Council. According to the respondent No.4, as per the agreement dated March 12, 2004 entered into between them and the Lonavala Municipal council, it was agreed that after construction of bridge was over, the existing access of the traffic over the spillway shall be permanently 10 prohibited to all others except Tata Power Company for the purpose of safety and security of the dam. They have, thus, justified the construction of the wall, fencing and gates and prevention of the usage of the pathway and the old bridge by the public. The respondent No.4 has denied that the disputed road was at any point of time maintained by the public fund or that it can be used by the public as a matter or right. 15. The Lonavala Municipal Council (respondent no.1) through its Chief Officer filed reply affidavit on August 9, 2005. It is stated in the said affidavit that the communication dated November 17, 2004 was issued by the Council to respondent No.4 without giving any opportunity of hearing and without going through the leave and licence agreement dated March 12, 2004. The letter dated November 17, 2004 was purportedly issued only on the basis that prior to September, 2004, the spillway was open for the public. The Lonavala Municipal council in its affidavit has supported the case of respondent No.4 that the spillway is integral part of the dam and the exclusive control over the spillway by respondent No.4 is necessary to maintain the safety of the entire dam. The respondent No.1 has also stated that designation of the spillway portion in the draft development plan may not be given much importance and that no inconvenience is caused to the public at 11 large by closing the public way. 16. In response to the affidavit of respondent No.1 dated August 9, 2005 and further affidavit of respondent No.4 dated March 14, 2005, the petitioner filed his affidavit on August 18, 2005. We may not repeat the contents of the said affidavit as it is repetition of his stand set up in the writ petition and the rejoinder filed on March 1, 2005. 17. Then, respondent No.4 filed another affidavit on August 18, 2005. They reiterated in this affidavit that they have been enforcing their property rights by closing the pathway to public once in a year but the said practice was discontinued at the request of INS Shivaji and the Lonavala Municipal Council. Pertinently, in this affidavit also the respondent No.4 admitted the user of pathway on the spillway by public, both vehicular traffic as well as the pedestrians. 18. In addition to the affidavits that were filed by the respondent No.4 on February 15, 2005, March 14, 2005 and August 18, 2005, they sought to tender three further affidavits on September 12, 2005, July 25, 2006 and August 4, 2006. By the order passed by us on August 4, 2006, we rejected the prayer of the respondent No.4 to consider these three affidavits tendered on September 12 12, 2005, July 25, 2006 and August 4, 2006. As a matter of fact, the Bench that earlier heard the matter declined to take the affidavit dated September 12, 2005 on record. The affidavit dated July 25, 2006 is exactly identical as the affidavit of September 12, 2005 and, therefore, in our order dated August 4, 2006 we observed the affidavit dated September 12, 2005 having been declined to be taken on record, the affidavit dated July 25, 2006 is also declined to be taken on record. The affidavit dated August 4, 2006 was tendered by respondent No.4 after the senior counsel for the petitioner had concluded his arguments and, therefore, we found no justification to consider the said affidavit. Re : (one) Whether the writ petition is Pro Bono Publico ? 19. The objection of the respondent No.4 is that the present writ petition is not a bona fide public interest litigation and the petitioner is in reality espousing the cause of some other persons, namely, persons having bungalows adjacent to the new bridge constructed by the Lonavala Municipal Council. It was suggested by the senior counsel for respondent No.4 that one of such bungalow owners adjacent to the new bridge is none other 13 than Mr.K.K. Singhvi, senior counsel for the petitioner, and, he and the other bungalow owners wish to utilise the pathway on the spillway and the old bridge for their pleasure and enjoyment and the present petitioner has been put up by them. He would submit that the credentials of the petitioner must be examined at the threshold. According to him, there is no gross violation of any law nor any infringement of fundamental right of the petitioner nor there is anything to shock the conscience of the Court justifying invocation of this Court’s jurisdiction in public interest litigation. He heavily relied upon three judgments of the Supreme Court viz., (i) The Janata Dal V/s. H.S. Chowdhury, AIR 1993 Supreme Court 892, (ii) Malik Brothers V/s. Narendra Dadhich & Others, (1996) 6 Supreme Court Cases 552 and (iii) Dattaraj Nathuji Thaware V/s. State of Maharashtra & others, AIR 2005 Supreme Court 540. 20. In Janata Dal (supra), the Supreme Court dealt with the scope and object of public interest litigation. The observations made in Gupta’s case (AIR 1982 SC 149) noticed in Janata Dal and highlighted by Mr.Aney read thus : "But we must be careful to see that the member of the public, who approaches the Court in cases of this kind, is acting bona fide 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 14 to delay legitimate administrative action or to gain a political objective .........". 21. Then the observations of Khalid, J. in Sachidanand Pandey V/s. State of West Bengal, [(1987) 2 SCC 1109] noticed in Janata Dal and referred to by Mr.Aney read thus : "Today public spirited litigants rush to Courts to file cases in profusion under this attractive name. They must inspire confidence in Courts and among the public. They must be above suspicion ................................ ......... Public interest litigation has now come to stay. But one is led to think that it poses a threat to Courts and public alike. Such cases are now filed without any rhyme or reason. It is, therefore, necessary to lay down clear guide-lines and to outline the correct parameters for entertainment of such petitions. If Courts do not restrict the free flow of such cases in the name of public interest litigations, the traditional litigation will suffer and the Courts of law, instead of dispensing justice, will have to take upon themselves administrative and executive functions ........................ ............ I will be second to none in extending help when such help is required. But this does not mean that the doors of this Court are always open for anyone to walk in. It is necessary to have some self-imposed restraint on public interest litigants." 22. In Malik Brothers, the Supreme Court cautioned that if the Court finds that in the garb of public interest litigation, actually an individual’s interest is sought to be carried out, it would be the bounden duty of the Court not to entertain such petition as otherwise the very purpose of innovation of public interest litigation will be frustrated. 15 23. In a recent case in Dattaraj Nathuji Thaware, the Supreme Court in paragraph 11 of the report, held thus : "11. The Court has to be satisfied about (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike balance between two conflicting interests; (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature. The Court has to act ruthlessly while dealing with impostors and busybodies 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 Publico, though they have no interest of the public or even of their own to protect". 24. In the backdrop of the aforesaid legal position, we shall see the credentials of the petitioner and whether it is motivated, the nature of information given by the petitioner for redressal of the public injury and whether public in general are interested in the vindication of some right (of way). 25. The petitioner is inhabitant of Lonavala for last 35 years. He was earlier working as a Municipal 16 Engineer with the Lonavala Municipal Council. This is not denied. In paragraph 2 of his rejoinder filed on March 1, 2005, the petitioner has averred that this is not the first writ petition filed by him to espouse the public cause. Earlier in the year 1991, he filed Writ Petition No.4319 of 1991 challenging the action of the Lonavala Municipal Council in changing the user of reservation of schools and public spaces without modification in development plans. The said writ petition was disposed of by this Court on July 26, 2002 on Lonavala Municipal Council filing affidavit that in the revised plan, which has not yet come in operation, they will make appropriate modifications. Then in the year 1992, the petitioner filed the writ petition against the then Lokayukta and others challenging the rejection of his complaint regarding corruption on the part of the President and the Chief Executive Officer of the Lonavala Municipal Council. The said writ petition was disposed of by this court on January 10, 2005 directing that the complaint of corruption must be investigated to its logical conclusion. These facts would show that the petitioner is not simply busybody but a public spirited person taking up the public cause from time-to-time. He had been Municipal Engineer in the Lonavala Municipal Council and being resident of Lonavala, obviously, he has been raising the grievance of the public, concerning the Lonavala Municipal 17 Council. In the present writ petition, the petitioner has raised the grievance relating to closure of pathway and old bridge by the respondent No.4 and inaction on the part of the Lonavala Municipal Council in removal of such obstruction. The usage of the said pathway and the old bridge by the public in general for many many years is not even in dispute. The petitioner has placed on record the copy of the letter dated February 20, 2005 addressed to him. The said letter is signed by many persons. The grievance raised in the said letter is the grievance that is raised in the present writ petition. The senior counsel for respondent No.4, however, submitted that the letter dated February 20, 2005 which bears signatures of many persons does not clearly show the names of all those persons and their addresses. Mr.K.K. Singhvi, senior counsel for the petitioner submitted that no details were sought from the petitioner in this regard, otherwise the names with complete addresses of those persons would have been furnished to the respondent No.4. Be that as it may, the fact of the matter is that the controversy in this writ petition by means of the public interest litigation is with regard to the closure of the pathway and the old bridge in use of the public (and allegedly as a matter of right) for many years and, therefore, the writ petition is for vindication of some right of the public in general. In the prayer for restoration of public 18 right of way, in our view, the public interest is apparent. 26. If the public road is closed and public is deprived of its right of way, the public injury is obvious. Can it be said in the circumstances that the writ petition is not in public interest. We do not think so. Merely because the bungalow owners near the new bridge are interested in the user of pathway and the old bridge, that would not mean that subject-matter ceases to be of public interest. Until the alleged illegal closure of the pathway and the old bridge by the respondent No.4, all along there has been user of the said pathway and the old bridge by the