Khatri Ram & Anr. v. State of H.P & Ors.

Judgment

The brief facts necessary for the adjudication of this petition are that the petitioners along with other villagers owned and possessed 5679 bighas of village common land i.e. Shamlat Deh assessed to land revenue well within the ceiling as laid down in the Himachal Pradesh Ceiling in Land Holdings Act. The Himachal Pradesh Village common Lands Vesting and Utilization Act, 1974 received the assent of the President of India on 9th August, 1974 and it was 1 Whether reporters of local papers are allowed to see the judgment? 2 placed at Serial No.139 of the 9th Schedule, as per 40th Amendment of the Constitution. As per provision of the Act, 5614.04 bighas of village common land owned by the petitioners with other co-owners assessed to land revenue got vested in the State of Himachal Pradesh. The entry to this effect was carried out in Mutation No.663 dated 9.9.1975. An amendment was carried out in the Principal Act in the year 1981 vide Act No.18 of 1981, whereby Section 8-A was inserted in the Act. The amendment carried out by way of Act No.18 of 1981 did not receive the assent of the President. The respondent No.3 was sanctioned mining lease on 20th March, 2001 for a period of 30 years for a total area measuring 39.5 bighas. The amendment was carried out by way of Act No.20 of 2001 assented to by the Governor of Himachal Pradesh on 27.9.2001, whereby sub clause (d) was added to sub section 2 of Section 3 retrospectively i.e. from the date of the Himachal Pradesh Village Common Land vesting and Utilization Act No.18 came into force on 29.8.1974. Consequently the land vested in the State was required to be returned to the original owners. The State returned proprietary rights of the Village common land measuring 4276.01 bighas to the owners vide a Mutations No.1145 dated 21.5.2004 and 1157 dated 29.9.2004. A total land measuring 1338.03 bighas inclusive of 39.5 bighas comprised in Khasra Nos. 1926/1886/131/1 and 148/1 over which mining lease was sanctioned in favour of respondent No.3 by the State Government was not returned to the petitioners and co-villagers. The petitioners have prayed for declaring Section 8-A introduced in Act No.18 of 1974 vide Act of 18 of 1981 unconstitutional with a further prayer that it should be struck down. They have also prayed that the proprietary rights of

1338.03 bighas of erstwhile village Shamlat land be returned to them and the mining lease granted in favour of respondent No.3 be cancelled. The respondent No.1 has filed reply to the writ petition. The reply of respondent No.1 is vague and the specific averments made in the writ petition 3 have not been dealt with in the right perspective. The State ought to have filed a detailed reply in view of the fact that the vires of section 8-A have been challenged by the petitioners. The main thrust of respondent No.1 is about the mining lease and other ancillary issues related to lease executed in favour of respondent No.3. The respondent No.2 has filed detailed reply to the writ petition. The respondent No.2 in his reply has justified the insertion of Section 8-A in the Principal Act. The respondent No.2 has taken the stand that in view of the provisions of Section 14 the amendment could be carried out in the Principal Act in the year 1981. It is further averred in the reply that insertion of Section 8-A vide Act No.18 of 1981 is in consonance with the provisions of the Principal Act and the mining lease has been executed in favour of respondent No.3 out of the allotable pool since the land classified is “Gair Mumkin/Nakabil Charand” in the revenue record which was not fit for allotment for agriculture and purposes subservient to agriculture by way of allotment to landless and eligible persons. It is further stated in the reply that the petitioners were not entitled to any compensation and the State could utilize the land for the development purposes. The thrust in the reply is also on the proviso of sub clause (d) of sub-section 2 of section 3 on the basis of which it had been contended that the land which had already been used for development activities could not revert back to the owners. It is further averred in the reply that the petitioners have no right to challenge the constitutional validity of the Principal Act which is protected under the 9th schedule of the Constitution. There is no denial by respondents No.1 and 2 in the reply that section 8-A has not received the presidential assent. The respondent No.3 has filed a separate reply. The main points urged in the reply filed by respondent No.3 are that he had applied for the mining lease in the year 1982 and the same was granted to him on 1.3.2001 and the mining plan was approved on 9th May, 2001. It is further contended in the reply filed by respondent No.3 that he was contributing to the State exchequer by paying 4 royalty, taxes, fees and other charges. The bonafide of the petitioners have also been challenged by respondent No.3 in his reply. It is further stated in the reply that the respondent was instrumental in giving employment to 50 persons and had also contributed funds for the development of the area. An Averment has been made in the reply to the effect that on 14.12.2006 a meeting of the right holders of Banor Estate was held in which about 90% of the owners had passed a resolution to the effect that they do not object to the mining operations carried out by respondent No.3. Respondents No.4 to 329 have also filed a separate reply, it has been primarily contended by them that the mining activities being carried out in the area have benefited them and they have no objection to the grant of lease in favour of respondent No.3. They have also supported the version of respondent No.3 that he had contributed considerable funds for the development of the remote area. They have also justified the insertion of Section 8-A by the state. Ms. Jyotsna Rewal Dua, Advocate had strongly argued that section 8-A of the H.P. Village Common Lands Vesting and Utilization Act, 1974 is ultra vires the Constitution and is liable to be struck down. She also contended that the H.P. Village Common Lands Vesting and Utilization Act, 1974 is an agrarian piece of legislation and the mining lease granted in favour of respondent No.3 by the respondents No.1 and 2 is against the legislative intent. She then contended that since the Act No.18 of 1981 has not received the Presidential assent the immunity granted to the Principal Act cannot be presumed in favour of the amendment. Ms. Dua further submitted that the petitioners have the necessary locus standi to file and maintain the writ petition on their behalf as well as on behalf of the other co-villagers for the enforcement of their constitutional and legal rights. She also contended that respondents No.4 to 329 neither can waive nor barter away their fundamental rights. Her contention with regard to delay and laches is that there cannot be any delay and laches for the enforcement of fundamental rights and she further buttressed her 5 submission by submitting that earlier the challenge to the vires of the Act placed in Schedule-IX in view of Waman Rao’s case was restricted but the scope of challenge has now been enlarged extensively by the Hon’ble Supreme Court in 2007 (2) SCC 1. Enlarging the scope of her submission based on 2007 (2) SCC 1, she contended that the vires of the act now can be challenged if the same is against the basic structure of the Constitution as well as against the rights enshrined in Part-III of the Constitution, which are treated as the basic structure of the Constitution. The learned Advocate General submitted that section 8-A has been added by invoking section 14 of the Principal Act to remove the difficulties. His second contention is that mining activities is to be treated as a step towards the development of the State as per section 8-A of the Act. Mr. Bhupender Gupta, Sr. Advocate had strenuously argued that the present petition on behalf of the petitioners cannot be treated as public interest litigation and the same has been filed with ulterior motive to settle the score with his client. His further contention is that his client had been granted mining lease in the year 2001 though he had submitted application in the year 1982. Mr. Gupta also contended that his client is paying royalty, taxes, fee etc. to the State Exchequer and has also contributed funds for the development of the area and the respondents No.4 to 329 are not against the mining lease granted to his client. Mr. Deepak Kaushal, Advocate appearing on behalf of respondents No.4 to 329 had adopted the arguments addressed by the learned Advocate General and Mr. Bhupender Gupta, Sr. Advocate and had also taken additional plea that Mines and Minerals (Development and Regulation) Act, 1957 has also been placed in Schedule-IX of the Constitution of India and on that basis he had justified the grant of mining lease in favour of respondent No.3. 6 In view of the pleadings of the parties as well as on the basis of their extensive arguments, the following questions are formulated for consideration in seriatim: 1) Whether the petitioners have the necessary locus standi to file and maintain the writ petition on their behalf and on behalf of co-villagers for returning their land on the basis of insertion of clause (d) in sub- section (2) of section (3) of the H.P. Village Common Lands Vesting and Utilization Act, 1974? 2) Whether the present writ petition can be termed as public interest litigation in view of the constitutional issues raised for protecting the fundamental rights of the petitioners as well as the rights of co- villagers for the restoration of their land on the basis of amendment carried out in the year 2001, which earlier stood vested in the State in the year 1974? 3) Whether the present writ petition suffers from the vice of delay and laches and negligence on the part of the petitioners? 4) Whether respondents No.4 to 329 could waive or barter away their fundamental rights after passing of the 2001 Act? 5) What is the effect of the amendment carried out by way of Act No. 18 of 1981 in the Principal Act by adding section 8-A? 6) Whether the H.P. Village Common Lands Vesting and Utilization Act, 1974 is an agrarian piece of legislation and whether granting lease for mining purposes falls out side the scope of agrarian reform and thus not entitled to the protection of Article 31-A of the Constitution of India? 7) Whether the immunity enjoyed by the Principal Act being placed in Schedule-IX can be extended to section 8-A added in the year 1981? 8) Whether section 8-A could be inserted in the year 1981 in the Principal Act by invoking section 14 of the Act? 9) Whether the Court can read down section 8-A to avoid striking it down, if it is found violative of Articles 14 and 19 of the Constitution of India? Since the Court has to go into the entire gamut of the questions raised and formulated by this Court, it will be more congenial at this stage to have a complete view of the legislative history of the Punjab Village Common Lands (Regulation) Acts and H.P. Village Common Lands Vesting and Utilization Act,

1974. 7 The origin of the concept of the village common land and earlier Legislation. The entire concept of village common land has been explained in detail by Sir. W.H. Rattigan in Digest of Customary Law (15th Edn.) 1989) as under: “The land is the true basis of unity in village groupings, supplying the ultimate real bond of union between the members who constitute the aggregate proprietary body generally called the “village community”, is a fact which may be verified by the most superficial observer of the organization which underlines those communities in the Punjab. Thus, whatever may be the type to which a particular village may belong, and to whatever extent individualistic notions of property may have superseded the earlier ideas of jointness and common holdings, there will be found still surviving very distinct evidence of the fact that in its origin the village association was bound together by the acquisition of a definite space of land, which, as Sir Henry Maine has so abundantly demonstrated, began at once to become the basis of its capacity instead of kinship, ever more and more vaguely conceived. This evidence is to be found in the reservation within the territorial limits of every village of some portions of the uncultivated waste for purposes of common pasture, for assemblies of the people, for the tethering of the village cattle, and for the possible extension of the village dwellings. Lands so reserved are jealously guarded as the common property of the original body of settlers who founded the village or of their descendants, and occasionally also those who assisted the settlers in clearing the waste and brining it under cultivation are recognized as having a share in these reserved plots. Even in village which have adopted separate ownership separate ownership as to the cultivated area, some such plots are usually reserved as village common, and in pattidari villages (see para-137). It is not unusual to find certain portions of the waste reserved for the common use of the proprietors of each patti, and other portions for common village purposes the former designated shamilat-patti and the latter shamilat-deh. As a general rule, only proprietors of the village (malikan- deh) as distinguished from proprietors of their own holdings (malikan-makbuza khud) are entitled to share in the shamilat-deh.” 8 A Division Bench of the Lahore High Court has held in Malik Mohammad Sher Khan and others Versus Ghulam Mohammad and others, 1932 Vol-XIII Indian Law Reports 92 that rules pertaining to village common land originated and had been made applicable principally to those parts of the country where agriculture was the predominant feature of village life and cultivation of land was the main source from which the inhabitants draw their income and the State derives its revenue. Their Lordships have held as under: “It must, however, be borne in mind that these rules originated in, and have been made applicable principally to, those parts of the country where agriculture is the predominant feature of village life and cultivation of land is the main source from which the inhabitants draw their income and the State derives its revenue.” The Punjab Assembly has enacted the Act called “the Punjab Village Common Lands (Regulation) Act, 1953 to regulate the rights in shamlat-deh and abadi-deh, the Statement of Objects and Reasons for introducing the Bill as published in the Punjab Gazette Extraordinary dated 6th April, 1953 reads thus: “When the villages were originally founded it is believed that the shamlat was really meant for the use of all the inhabitants of the village. At present the position is that all the shamlat is the property of the proprietary body of a village and the rights of non- proprietors are in the shape of grants for certain purposes. Though the non-proprietary classes also presumably settled in villages with txhe founders thereof and have been rendering essential services to the proprietary body in matters relating to farm operations, they do not enjoy equal rights in the shamlat lands and they are not the proprietors of the sites under their houses even in the abadis. It seems that in the course of time conditions to the determent of Harijans and other similar non-proprietary classes have come into vogue. They feel their position insecure in so far as enjoyment of essential rights in sites of their residential houses. Discontentment over this matter has been expressed by the members of these classes. Government consider that these conditions should no longer exist. It is with a view to giving these 9 classes of residents in villages an opportunity to live with security and self respect that the proposed legislation is being undertaken.” Section 3 of the Punjab Village Common Lands (Regulation) Act, 1953 reads thus: “3. Vesting of rights in panchayats and in non-proprietors.- Notwithstanding anything to the contrary contained in any other law for the time being in force, and notwithstanding any agreement; instrument, custom or usage or any decree or order of any Court or other authority, all rights, title and interest whatever in the land- (a) which is included in the Shamlat Deh of any village, shall, on the appointed date, vest in a panchayat having jurisdiction over the village; (b) which is situated in the Abadi Deh of a village and which is under the house owned by a non-proprietor, shall at the commencement of the Act vest in the said non-proprietor.” The Punjab Village Common Lands (Regulation), 1953 and the Pepsu Village Common Land (Regulation) Act, 1954 were repealed by the Punjab Village Common Lands (Regulation) Act, 1961. The Punjab and Haryana High Court has categorically laid down in AIR 1964 (Punjab) 503 that the Punjab Village Common Lands (Regulation) Act, 1953 was an agrarian piece of legislation. The Hon’ble Supreme Court in AIR 1965 SC 632 and 1985 PLJ 463 had laid down that the Punjab Village Common Lands (Regulation), 1953 is an agrarian piece of legislation. The Hon’ble Supreme Court has explained in Gram Panchayat v. Malwinder Singh, 1987 PLJ 463 the true nature of shamlat-deh as under: “Prior to the partition of India on August 15, 1947 the Shamlat-deh lands in Punjab were owned by the proprietors of the other lands in the village, “Hasab Rasad Khewat”, that is to say, in the same proportion in which they owned the other lands. Therefore, a person who did not own any other land in the village could have no proprietary right or interest in the Shamlat-deh lands. But, though the interest of the proprietors of the other lands, in Shamlat-deh lands, was incidental to their proprietary interest in those other 10 lands, such interest in the Shamlat was not a mere appendage to their interest in the other lands. Our learned Brother, Chinnappa Reddy, has referred in his judgment to a leading decision of the Lahore High Court, Rahman v. Sai, I.L.R. 9 Lahore 501, in which it was held that, if a proprietor alienated his land, the alienee would not acquire any interest in the Shamilat by mere virtue of the alienation. That was but consequential to the well established legal position in Punjab that the Shamlat-deh lands were intended for the common use of all shares.” Legislative History of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 The Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 (Act No.18 of 1974) hereinafter referred to as the Act for brevity sake was enacted to provide for vesting and utilization of village common land in the State of Himachal Pradesh. The Act was passed by the Legislative Assembly, Himachal Pradesh on 11.4.1974. The Act received the assent of the President of India on 9.8.1974 and thereafter the same was published in Rajpatra, Himachal Pradesh Extra Ordinary dated 29.8.1974 as Act No.18 of 1974. Before this Court considers the salient features of the Act it will be apt to re-produce the statement of objects and reasons for legislating the same. They read as under: At present in the areas added to Himachal Pradesh under section 5 of the Punjab Re-organisation Act, 1966, the Punjab Village Common Lands (Regulation) Act, 1961 is applicable. Under this Act the shamilat land vests in the Panchayats who in turn, can lease out such land in accordance with the provisions of the Act. It was found from experience that the implementation of the Act was not properly done by the Panchayats in respect of leases. Moreover, with respect to Hilly Areas of Kangra, Shimla, Una and Nalagarh, the leasing out of land was considered against the National Forest Policy. Therefore, the Punjab Village Common Lands (Regulation) (Amendment) Act, 1964 was enacted prohibiting leases in the said areas. Inspite of the said amendment Act things 11 have not improved. Irregularities continue to be committed by the Panchayats leasing out the land. It has been, therefore, considered proper to vest the shamilat the State Government for its proper management and utilization. In the old areas there is no shamilat law corresponding to that applicable in the new areas. The samilat land in the old areas also is not being properly managed and utilized. It is, therefore, considered expedient to have a uniform policy, by way of enacting a law on the subject, throughout the Pradesh. The Himachal Pradesh Common Lands Vesting and Utilization Act, 1974 was placed in the 9th schedule at Serial No.139 by the Constitution (Fortieth Amendment) Act, 1976. Now we have to consider the various Sections of the Act to appreciate the submissions made by the learned counsel for the parties. Sections 3, 4, 5,6, 7 and 8 read thus:

3. Vesting of rights in the State Government:- (1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any agreement, instrument, custom or usage or any decree or order of any court or other authority all rights, title and interest including the contingent interest, if any, of the landowner in the lands in any estate- (a) vested in a Panchayat under section 4 of the Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961) as in force in the areas added to Himachal Pradesh under section 5 of the Punjab Re-organization Act, 1966 (31 of 1966) except lands used or reserved for4 the benefit of village community including streets, lanes, playgrounds, schools, drinking wells and ponds within abadi deh or grah deh; (b) described in the revenue records as shamilat tarat potties, pannas and thola and not used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village in the areas added to Himachal Pradesh under section 5 of the Punjab Re-organisation Act, 1966; (31 of 1966) and (c) described in revenue records as shamilat, shamilat deh, shamilat toraf and potti in the areas comprised in Himachal Pradesh, immediately before first November, 1966; 12 (2) The provisions of sub-section(1) of this section shall not apply to lands described in clauses (b) and (c) of that sub-section if, before the date of commencement of this Act- (a) (b) (c) partition of such lands is made by the individual co-sharers through a process of law by a competent court or authority, Transfer of such lands is made by the landowner by way of sale, gift or exchange. Such land built upon by an inhabitant by raising a residential house or cow-shed. (3) The State Government shall be liable to pay, and the landowners whose rights have been extinguished under sub- section (1) of this section shall be entitled to receive the amount in lieu thereof at the following rates:- (i) (ii) for the land reserved for grazing and other common purposes under clause (a) of sub-section (1) of section8, five times the annual land revenue including rates and cesses chargeable thereon; and for the remaining land, fifteen times the annual land revenue rates and cesses chargeable thereon: including provided that where the land vested in the state Government under this act is not assessed to land revenue, the same shall be construed to be assessed as on similar land in the estate and if not available in the estate then in the adjoining estate or estates as the case may be. (4) The amount paid to a Panchayat under section 7 shall be deemed to be the Sabha Fund and shall be utilized for such purposes as are mentioned in section 40 of the Himachal Pradesh Panchayati Raj act, 1968. (19 of 1970). (5) The Collector may, by order in writing, at any time after the land vested in the State Government, direct the landowners to deliver possession thereof within 10 days from the service of the order to such person as may be specified in the order. (6) If the landowners refuse or fail without reasonable cause to comply with the order made under sub section (5), the Collector may take possession of the land and may for that purpose use such force as may be necessary. 13

4. Treatment of leases made by Panchayats:- (1) The Collector shall call for from Panchayats in his district the record of leases, contracts or agreements entered into by the Panchayats in respect of any land vested in the Panchayats under the Punjab Village Common Lands (Regulation) Act, 1961, (18 of 1961) and the rules made thereunder and examine such record himself as to the legality or propriety of such leases, contracts or agreements. (2) Where an examination of the record under sub-section(1) and after making such enquiry as he deems fit, the Collector is satisfied that such leases, contracts or agreements are in accordance with the provisions of the said Act and rules, he shall pass orders declaring such leases , contracts or agreements having been made on behalf of the State Government; (3) Where on such examination and enquiry the Collector finds that a lease, contract or agreement has been entered into in contravention of any of the provisions of the said act or the rules made thereunder or has been entered into as a result of fraud or concealment of facts or is detrimental to the interest of the estate right holders, he shall conceal such a lease, contract or agreement and such person shall be liable to ejectment under the provisions of section 150 of the Punjab Land Revenue Act, 1887. (17 of 1887) Provided that no order under sub sections (2) and(3) of this section shall be passed by the Collector without affording an opportunity of being heard to the parties to the lease, contract or agreement.

5. Treatment of amount payable to landowners: - Where land vested in the State Government has been encroached upon by any person before or after the commencement of this act, the revenue Officer may of his own motion eject such person in accordance with the provisions of section 150 of the Punjab Land Revenue 14 Act,1887 (17 of 1887), or section 163 of the Himachal Pradesh Land Revenue Act, 1954 (17 of 1887) as the case may be.

6. Determination of amount payable to landowners:- (1) The Collector shall cause a notice to be served in the prescribed form and manner, landowner, whose rights have been extinguished under sub-section (1) of section 3, stating therein the area of land vested in the State Government and the amount proposed therefore, immediately after the commencement of this Act, calling upon him to prefer objections, if any, within 60 days from the receipt of the notice: Provided that the Collector may entertain the objections after the expiry of the said period of 60 days if he is satisfied that the landowner was prevented by sufficient cause from filing the objections within the prescribed time. (2) The Collector after giving the landowner or landowners, as the case may be, an opportunity of being heard and making such enquiry as may be necessary, shall make an award determining the amount payable by the State Government to the landowners in accordance with the provisions of sub- section (3) of section 3 and also apportion the amount thereof among the landowners. (3) Where the amount is payable to a minor, the Collector may make such arrangements as may be equitable having regard to the interest of the minor.

7. Payment of amount:- The amount payable to a landowner under section 6 shall be paid in the manner and in such number of six monthly instalments not exceeding ten as may be prescribed.

8. Utilization of land vested in the State Government:- (1) All lands vested in the State Government under this Act shall be utilized for the following purposes: (a) an area not less than fifty per cent of the total in the State Government under area vested section 3 of this Act for grazing and other common purposes of the inhabitants of an estate; (b) The remaining land:-- for allotment to a landless person or any other (i) eligible 15 person; or for allotment of site to a handicapped or (ii) landless person for the construction of a house; under a scheme to be framed by the State Government by notification in the official Gazette and the allottee shall pay an amount at the rate of forty-eight times of the land revenue and rates and cesses chargeable on the land allotted to him under the said scheme, either in lump sum or in six monthly instalments not exceeding four.” (2) the land reserved under clause (a) of sub-section (1) of section shall be demarcated by such Revenue Officer and such manner as may be prescribed. (3) Any scheme framed by the State Government under clause (b) of sub-section (1) of this section may provide for the terms and conditions on which the land is to be allotted. (4) The State Government may, by notification in the Official Gazette, add to, amend, vary or revoke any scheme made under this section. The amendments were carried out in the Act by the Act called the Himachal Pradesh Village Common Lands Vesting and Utilisation (Amendment) Act, 1981. The amendment carried out has come into force with effect from Ist January, 1979. By way of the Amendment Act 1981, new section 8-A was inserted, namely: 8-A. Utilisation of for development of the State:- Notwithstanding anything contained in Section 8 of the Act, the State Government may utilize any area of the land vested in it under the Act by lease to any person or by transfer to any Department of the Government in the interests of the development of the State, if the State Government is satisfied that there are sufficient reasons to do so subject to the condition that land for the purposes mentioned in clause (a) of sub-section (1) of section 8 in no case shall be less than fifty per cent of the land vested in the Government under the Act. 16 Provided that when land is not used by a person for the purpose for which it has been leased, the lease shall stand terminated free from all encumbrances and the Government shall re-enter on the demised premises and lease money, “if paid to the Government, shall be forfeited and no person shall be entitled to any compensation for any improvement made and for any building constructed thereon.” The statement of objects and reasons for introducing the Himachal Pradesh Village Common Lands Vesting and Utilisation (Amendment) Act, 1981 reads thus: Section 8 of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 (Act No.18 of 1974) provides that all lands vested in the State Government under section 3 of the Act, shall be utilized only for two purposes, viz. (i) an area not less than 50% of the total area vested in the State Government for grazing and other common purposes of the inhabitants of the estate concerned; and (ii) the remaining and for allotment to landless persons. The land vested under section 3 of the said Act, also comprises such land which is not suitable for either of the purposes mentioned in section 8 of the Act, but can be more profitably be utilized for the development of tourism and industrial purposes. In the public interest and to explore the possibilities of the development of the tourism and industrial activities, it had been decided to make amendment in the act immediately. Since the Legislative Assembly was not in session and the circumstances existed which rendered it necessary for the Governor to take immediate action by promulgating an Ordinance under Article 213(1) of the Constitution of India, the Himachal Pradesh Village Common Lands Vesting and Utilization (Amendment) Ordinance, 1981 (Ordinance No.3 of 1981) was promulgated by the Governor on the 15th June, 1981. Now this Ordinance is required to be replaced by a regular legislation. The Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 was further amended by the Act called the Himachal Pradesh Village 17 Common Lands Vesting and Utilization (Amendment) Act, 1987. Sections 2, 3 and 4 of the said Act reads : “2. In section 2 of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 (hereinafter called the principal Act).- (i) after the existing clause (a), the following clauses (aa) and (aaa) shall be inserted, namely:-- (aa) “handicapped person” means a crippled or physically or medically deficient person whose annual income from all sources does not exceed rupees seven thousand and five hundred and who, on account of injury, disease congenital deformity, substantially prevented from or is incapable of leading a normal life or earning full wages for the work in which he is employed; or obtaining or keeping employment or undertaking work on his own of a kind in view of that injury, disease or deformity which work would have suited his age, experience and qualifications. Explanation.—For the purposes of this clause, a person who has incurred physical disablement to the extent of fifty per cent or more shall be deemed to be substantially incapable or disabled person”, (aaa) “houseless person” means a person who owns no house or a site to construct a house for himself: Provided that a person whose father is alive or whose annual income from all sources exceeds Rs.3,000/- shall not be deemed to be a houseless person;” (ii) for the sign “ ” occurring at the end of clause ( c ), the sign “ ” shall be substituted and thereafter the following proviso shall be added, namely:-- “provided that a person whose father is alive or whose annual income from all sources exceeds Rs.3000/- shall not be deemed to be a landless person;” and (iii) after the existing clause (d), the following clause (dd) shall be added,- “(dd)”other eligible person” means a person.- 18 (i) who, holding land for agricultural purposes less than an area whether as an owner or a tenant, earns his livelihood principally by manual labour on land and intends to take the profession of agriculture and is capable of cultivating the land personally; (ii) whose father is not alive; and (iii) whose annual income from all sources does not exceed Rs.3000/-; and shall not include a person who holds a share or a portion of an estate jointly owned or cultivated by two or more persons.”

3. For clause (b) of sub-section (1) of section 8, the following clause (b) shall be substituted, namely:- “(b) the remaining land— (i) for allotment to a landless person or any other eligible person; or (ii) for allotment of site to a handicapped or houseless person for the construction of a house; under a scheme to be framed by the State Government by notification in the Official Gazette and the allottee shall pay an amount at the rate of forty-eight times of the land revenue and rtes and cesses chargeable on the land allotted to him under the said scheme, either in lump sum or in six monthly instalments not exceeding four.”

1. Where any allotment of land made under any scheme, framed under the principal Act, is found to be inconsistent with the provisions made in the principal Act, as amended by sections 2 and 3 of this Act, then notwithstanding anything to the contrary contained in any judgment, decree or order of any court, or any other law for the time being in force, it shall be lawful for an officer especially empowered by the State Government for this purpose, to cancel such allotment and take possession of the land so allotted: 19 Provided that no order under this section shall be passed without affording an opportunity of being heard to the allottee of the land in question.” The statement of objects and reasons for bringing out the 1987 Amendment Act reads thus: In 1975, a massive programme of allotment of and was launched by the Government under the 20-Point Programme enunciated by the Prime Minister. Under this programme, all the landless agricultural labourers who had no land or had land less than an acre, were to be allotted land upto an acre. The latter category was called “other eligible persons”. Among the sources from which land was and is being allotted to both the categories, is the village common land vested in the Government under the Himachal Pradesh Village Common Lands Vesting and Utilisation Act, 1974. The definition of the expression “landless person” as given in that Act at present, was supplemented by instructions issued in October, 1975 laying down that a person having his father alive and income exceeding Rs.3,000/- per annum from all sources shall not be a landless person for the purposes of allotment of land. The allotment of land has been made in the light of these guidelines and allotments found to have been made in violation of these administrative instructions had been cancelled by the competent authority. This arrangement has, however, not found favour with the Civil Courts which have held that the definition of the expression “landless person” as given in the Act does not embody the conditions prescribed under the administrative instructions. It has, therefore, become necessary to amend the above definition and make consequential provisions to cancel the allotment of lands obtained by certain unscrupulous persons by concealing facts at the relevant time. 20 Besides, the State Government has also decided that a handicapped person having 50% or more disability should be granted house-site for construction of his house. Then there may be other purposes also for which land is often required. At present there is no enabling provision in the Act on this score. Section 8 has, therefore, to be amended suitably. This Bill seeks to achieve the aforesaid objectives.” The Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974. was further amended by the Act called the Himachal Pradesh Village Common Lands Vesting and Utilization (Amendment) Act, 2001. Sections 2 to 9 reads thus:

2. Amendment of Section 2—In Section 2 of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 (18 of 1974) (hereinafter referred to as “the principal Act”).- (a) after clause (20, the following shall be added, namely:- - “(a-1) “Common purposes” means and includes grazing, collection of fuel wood and tree leaves for fodder, school buildings, Panchayat Ghars,Mahila Mandal Bhawans, School Playgrounds, Community Halls, Janj Ghars, Dispensaries, Government Offices, Kisan Mandlies, tree plantation under various State Government Schemes and any other public facilities”; (b) in clause (aa), for the words “rupees seven thousand and five hundred”, the words and sign “the limit fixed for persons living below poverty line as notified by the State Government from time to time,” shall be substituted; and (c) in provisos below clauses (aaa) and (c ) and in sub- clause (iii) of clause (dd), for the word, sign and figure “Rs.3,000/-“, the words and sign “the limit fixed for persons living below poverty line as notified by the State Government from time to time,” shall be substituted. 21

3. Amendment of Section 3,-- In Section 3 of the principal Act.- (a) In sub-section (1), for clauses (b) and (c ), the following shall be substituted, namely:- “(b) described in therevenue records as shamlat taraf, patties, pannas, thola, shamlat, shamlat deh, shamlat chak, shamlat tika or by any such other description and not used according to revenue records for the benefit of the community in the village or a part thereof or for common purposes of the village in the areas added to Himachal Pradesh under Section 5 of the Punjab Re-organization Act, 1966 (3) of 1966); and (c ) described in revenue records as shamlat, shamlat deh, shamlat taraf, shamlat chak, patti or by any other such description in the areas comprised in Himachal Pradesh immediately before Ist November, 1966”; (b) in sub-section (s), after clause (c ), the following shall be added, namely:- “(d) land recorded as “shamlat tika Hasab Rasad Malguzari” or by any such other name in the ownership column of jamabandi and assessed to land revenue and has been continuously recorded cultivating possession of the co-sharers so recorded before 26th January, 1950 to the extent of their shares therein; Provided that the provisions of this clause shall not be applicable to such lands which have already been put to use by the Government.”

4. Amendment of Section 4.—In Section 4 of the principal Act, in sub-section (2), after the words “State Government”, the words “and will fix the lease money at the rate notified by 22 the State Government from time to time. Such lease money shall be recovered by the Panchayat concerned from the lessee,” shall be added.

5. Substitution of Section 5.-- For Section 5 of the principal Act, the following shall be substituted, namely:- “5. Treatment of encroachments on shamlat land or the lands vested in the State Government.- Where the land vested in the State Government or the shamlat land by whatever term it is recorded in the revenue records, which has not vested in the State Government , has been encroached upon by any person or co-sharer before or after the commencement of this Act, the Revenue Officer may of his own motion or on the report of the Patwari of the circle duly verified by the Kanungo of the circle or on the application of any estate right holder or co-sharer, eject such person in accordance with the provisions of section 163 of the Himachal Pradesh Land Revenue Act,, 1954 (6 of 1954).”

6. Amendment of section 8.- In Section 8-A of the principal Act, in sub-section (1), in clause (b), after sub clause (ii), the following shall be added, namely:- (a) after the words “State Government” and before the words “may utilize”, the words “or any other Officer authorized by the State Government in this behalf” shall be added; and (b) after the words “State Government” and before the words “is satisfied”, the words “or the Officer authorized by it” shall be added.

7. Amendment of Section 8-A.—In Section 8-A of the principal Act.- (a) after the words “State Government” and before the words “may utilize”, the words “or any other Officer authorised by the State Government in this behalf” shall be added; and 23 (b) after the words “State Government” and before the words “is satisfied” , the words “or the Officer authorized by it” shall be added.

8. Insertion of Section 9-A.-- After Section 9 of the principal Act, the following shall be inserted, namely:- “9-A. Review.—(1) The Collector or the Officer authorised by the State Government under Section 9 may, either on his own motion or on the application of any party interested, review

and on so reviewing, modify, reverse or confirm any order passed by himself or by any of his predecessors in office. (2) No order shall be modified or reversed in review unless a notice has been given to the parties affected thereby to appear and be heard in support of the order. (3) An order against which an appeal has been preferred shall not be reviewed. (4) An application for review of an order shall not be entertained unless it is made within 90 days of the passing of the order, or unless the applicant satisfies the Collector or an Officer authorised by the State Government that he had sufficient cause for not making the application within that period.” The statement of objects and reasons for bringing about the 2001 Amendment Act reads thus: The State Government appointed a Committee to make a comprehensive review of the land laws of the State, which examined the Himachal Pradesh Village Common Lands vesting and Utilization Act, 1974. The Government further appointed a Committee of Officers of the revenue Department under the Chairmanship of the Commissioner (Revenue) to study the recommendations of the High Powered Committee. The Committee considered the recommendations and accepted most of them. The expression “common purposes” is not defined in Section

2. In order to make the provision of section 3(a) clearer, it has been 24 decided to define the expression “common purposes”. The limit of income fixed under clause (aa) of section 2, for being a “handicapped person” and in proviso to clause (aaa) of section 2, for being a “houseless person” is being revised. In Section 4 of the Act ibid there is no clear provision about the lease money or rent etc. to be fixed by the Gram Panchayats which the lessee should pay. Now a provision of lease money to be charged by the Panchayat concerned from the lessee is being made. Similarly Section 5 provides for dealing with encroachment on lands vested in the State Government under Section 3 of the Act, but does not provide for as to how encroachments on Shamlat lands which have not vested in the State Government is to be removed. Hence, amendment has been proposed in Section 5 of the Act providing therein clear provision of ejectment of encroacher. At present there is no provision of review in the Act ibid, now it has been decided to make provision of review in the act itself. In order to remove irregularities and illegalities made in vestment of common land, it has been decided to give retrospective effect to the proposed Bill. These have necessitated the amendments in the Act ibid. “ The Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 was further amended by the Himachal Pradesh Village Common Lands Vesting and Utilization (Amendment) Act, 2005. Sections 2 and 3 of 2005 Act reads thus:

2. In section 3 of the HimachalPradesh Village Common Lands Vesting and Utilization Act, 1974, after sub-section (2), the following new sub-sections shall be added, namely:- “(2-a)The land reverted back to co-sharers under clause (d) of sub-section (2 ) shall not be transferred by such co-sharers, by way of sale, gift, mortgage or otherwise, during a period of twenty five years from the date of mutation of such land. (2-b)No Registrar or the Sub-Registrar, appointed under the Registration Act, 1908, shall register any document 25 pertaining to transfer of such land, which contravention of sub-section (2-a) and such transfer shall be void ab initio and the land involved in such transfer, if made in contravention of sub-section (2-a), shall vest in the State Government free from all encumbrances.”

3. (1) The Himachal Pradesh Village Common Lands Vesting and Utilization (Amendment) Ordinance, 2005 is hereby repealed. (2) Notwithstanding such repeal, anything done or any action taken under the Ordinance so repealed, shall be deemed to have been done or taken under the corresponding provisions of this Act. The State Government had framed the Rules called the Himachal Pradesh Village Common Lands vesting and Utilization Rules, 1975, hereinafter referred to as the Rules. Rule 2 defines expression like ‘Act’, “allotable pool”, “eligible person” etc. Rule 3 provides for taking possession of the land and Rule 4 provides the mechanism for mutation of land in favour of the State Government. The detailed procedure for demarcation of land under Section 8 has been provided under Rule 6. The State Government has also framed the Rules called the Himachal Pradesh Lease Rules, 1993 in exercise of the powers vested under Section 13 of the of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 and under Section 26 of the Himachal Pradesh Ceiling on Land Holdings Act, 1972. Rule 2 is a dictionary clause which defines various expressions like a “Demarcated Protected Forest”, “Reserved Forest” etc. Rule 3 provides for the mechanism for the grant of land lease and Rule 4 provides for the purposes for which the lease may be granted. The maximum limit of grant is provided under Rule 5. The eligibility for the grant of land on lease is provided under Rule 6. The detailed procedure for grant of land on lease commences 26 from Rule 10 to 23. The Himachal Pradesh Lease Rules, 1993 have been further amended by the Himachal Pradesh Lease (Amendment) Rules, 2002 whereby amendments have been carried out in Rules 4, 5, 6, 8, 13, 20, 26 and

27. The State has also framed a Scheme called the Himachal Pradesh Village Common Lands Vesting and Utilization Scheme 1975 hereinafter referred to as the ‘Scheme’. Para 3 of the Scheme lays down the procedure to be observed by the Tehsil Revenue Officer, whereby it is provided that immediately after the land vested in the State Government under Section 3 of the Act is mutated in favour of the State, the Tehsildar Revenue Officer shall invite applications through proclamation from the eligible persons in form-1 to be submitted to him within six weeks thereof. The procedure for allotment of land from the allotable pool is provided under Para 5 of the Scheme. Para 7 provides that each allottee shall be given a certificate by the Collector and the mode of delivery of possession is provided under Para 7 of the Scheme. Para 9 of the Scheme lays down the conditions of allotment.

1. Whether the petitioners have the necessary locus standi to file and maintain the writ petition on their behalf and on behalf of co-villagers for returning their land on the basis of insertion of clause (d) of sub-section (2) of section (3) of the H.P. Village Common Lands Vesting and Utilization Act, 1974? The present petition has been filed by the petitioners on their behalf as well on behalf of the Village Proprietors Body for returning of their lands which stood vested in the State of Himachal Pradesh by Act No.18 of 1974. The total land owned and possessed by the petitioners along with other villagers was 5679 bighas of village common land. The state had returned to them land measuring 4276.09 bighas after the passing of Act No.20 of 2001, but land measuring 1338.03 bighas has not been returned to them out of which land measuring 39.5 bighas had been granted in favour of respondent No.3 by way 27 of lease for mining purposes. The petitioners belong to remote area in district Sirmour. They have assailed the constitutional validity of Section 8-A added to the Principal Act by way of Act No.18 of 1981. They have also challenged the action of respondent State of not returning their own land to them to which they are legally entitled after the passing of Act no.20 of 2001. The respondent No.3 has stated in his reply that he believed that on or about 14.12.2006 a meeting of the alleged right holders of Banor estate was held in which about 90% of the participants had passed a resolution to the effect that they have no objection of any kind for the operation of mining carried out by him. Mr.Deepak Kaushal learned counsel has filed reply on behalf of respondents No.4 to 329. In the reply filed on their behalf, the principal stand is that though they are co-owners of the village common land but they had no objection to the mining operation being carried out by respondent No.3. The manner in which the co-villagers i.e. respondents No. 4 to 329 have supported the case of the respondent No.3 depicts how gullible they are. The Court does not approve the fiangle manner in which the innocent villagers were made to approve the mining lease accorded in favour of respondent No.3 to the extent of waiving their own constitutional and legal rights. It is settled law by now that the fundamental rights can neither be waived nor bartered away. The Court once apprised of the true facts will never ever shirk from its responsibility enjoined upon it by the Constitution to protect the rights of the downtrodden/residuum like the petitioners and respondents No.4 to 329. The validity of Section 8-A has been challenged by the petitioners primarily on the ground that it did not enjoy the protection of Schedule IX since the Presidential assent was not obtained in the year 1981 and secondly the term ‘development’ as per Section 8-A must be akin to the agricultural pursuits and by no stretch of imagination the land vested in the State could be allotted for the purpose of mining in favour of respondent No.3. Thirdly the petitioners have prayed for returning of their lands by the State after the insertion of sub 28 section (d) in sub section 2 of Section 3 of the Act which has come into force with effect from 9.8.1974. The petitioners have filed the petition for protection of their constitutional as well as legal rights. Consequently it is held that the petitioners have the locus to file the petition on their behalf as also on behalf of the members of the proprietors’ body for protecting their constitutional and legal rights. The plea raised by Mr. Bhupender Gupta, senior counsel that the present petition is actuated with legal malafide and has been filed to achieve ulterior purposes, is not sustainable. The petitioners are entitled to enforce their constitutional rights individually as well as for protection of the rights of the similarly situate villagers who due to poverty and ignorance are not in a position to approach this court for redressal of their grievances. The Court is fortified in taking this view in view of the definite pronouncements of law by the Supreme Court with regard to the locus standi and maintainability of public interest litigation. Their Lordships of the Supreme Court have discussed the entire law with regard to filing and maintaining the public interest litigation in the following manner: The Hon’ble Supreme Court after tracing the history and development of locus standi vis-à-vis public interest litigation has held in S.P. Gupta V. M. Tarkunde, J.L. Kalra and others, Iqbal M. Chagla and others, Rajappa, P. Subramaniam, D.N. Pandey and others. V. President of India and others etc., AIR 1982 SC 149 as under:- “The traditional rule in regard to locus standi is that judicial redress is available only to a person who has suffered a legal injury by reason of violation of his legal right or legal protected interest by the impugned action of the State or a public authority or any other person or who is likely to suffer a legal injury by reason of threatened violation of his legal right or legally protected interest by any such action. The basis of entitlement to judicial redress is personal injury to property, body, mind or reputation arising from violation, actual or threatened, of the 29 legal right or legally protected interest of the person seeking such redress. This is a rule of ancient vintage and it arose during an era when private law dominated the legal scene and public law had not yet been born. The leading case in which this rule was enunciated and which marks the starting point of almost every discussion on locus standi is Exparte Sidebotham, (1980) 14 Ch D 458. There the Court was concerned with the question whether the appellant could be said to a ‘person aggrieved’ so as to be entitled to maintain the appeal. The Court in a unanimous view held that the appellant was not entitled to maintain the appeal because he was not a ‘person aggrieved’ by the decision of the lower Court. James, L.J. gave a definition of ‘person aggrieved’ which, though given in the context of the right to appeal against a decision of a lower Court, has been applied widely in determining the standing of a person to seek judicial redress, with the result that it has stultified the growth of the law in regard to judicial remedies. The learned Lord Justice said that a ‘person aggrieved’ must be a man “who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something.” Thus definition was approved by Lord Esher M.R. in In Re Reed Bowen & Co. (1887) 19 QBD 174 and the learned Master of the Rolls made it clear that when James L.J. said that a person aggrieved must be a man against whom a decision has been pronounced which has wrongfully refused him of something, he obviously meant that the person aggrieved must be a man who has been refused something which he had a right to demand. There have been numerous subsequent decisions of the English Courts where this definition has been applied for the purpose of determining whether the person seeking judicial redress had locus standi to maintain the action. It will be seen that, according to this rule, it is only a person who has suffered a specific legal injury by reason of actual or threatened violation of his legal right or legally protected interest who can bring an action for judicial redress. Now obviously where an applicant has a legal right or a legally protected interest, the violation of which would result in legal injury to him, 30 there must be a corresponding duty owned by the other party to the applicant. This rule in regard to locus standi thus postulates a right duty pattern which is commonly to be found in private law litigation. But, narrow and rigid though this rule may be, there are a few exceptions to it which have been evolved by the Courts over the years. There is also another exception which has been carved out of this strict rule of standing which requires that the applicant for judicial redress must have suffered a legal wrong or injury in order to entitle him to maintain an action for such redress. It is clear that, having regard to this rule, no one can ordinarily seek judicial redress for legal injury suffered by another person; it is only, such other person who must bring action for judicial redress. It is on this principle that the Supreme Court of the United States held in United States v. James Griggs Raines, (1960) 362 US 17 : 4 L Ed 2d 524 that a litigant may only assert his own constitutional rights or immunities and save in exceptional cases, no person can claim standing to vindicate the constitutional rights of a third party. But it must now be regarded as well settled law where a person who has suffered a legal wrong or a legal injury or whose legal right or legally protected interest is violated, is unable to approach the Court on account of some disability or it is not practicable for him to move the Court for some other sufficient reasons, such as his socially or economically disadvantaged position, some other person can invoke assistance of the Court for the purpose of providing judicial redress to the person wronged or injured, so that the legal wrong or injury caused to such person does not go unredressed and justice is done to him. Take for example, the case of a minor to whom a legal wrong has been done or a legal injury caused. He obviously cannot on his own approach the Court because of his disability arising from minority. The law there fore provides that any other person acting as his next friend may bring an action in his name for judicial redress vide : Order XXXII of Civil P.C. So also where a person is detained and is there fore not in a position to move the Court for securing his release, any other person may file an 31 application for a writ of habeas corpus challenging the legality of his detention. Of course, this Court has ruled in a number of cases that a prisoner is entitled to address a communication directly to the Court complaining against his detention and seeking release and if he addresses any such communication to the Court, the Superintendent of the prison is bound to forward it to the Court and, in fact, there have been numerous instances where this Court has acted on such communication received from a prisoner and treating it as an application for a writ of habeas corpus, called upon the detaining authority to justify the legality of such detention and on the failure of the detaining authority to do so, released the prisoner. But since a person detained would ordinarily be unable to communicate with the outside world, the law presumes that he will not be able to approach the Court and hence permits any other person to move the Court for judicial redress by filing an application for a writ of habeas corpus. Similarly, where a transaction is entered into by the Board of Directors of a company which is illegal or ultra vires the company, but the majority of the shareholders are in favour of it and hence it is not possible for the company to sue for setting aside the transaction, any shareholder may file an action impugning the transaction. Here it is the company which suffers a legal wrong or a legal injury by reason of the illegal or ultra vires transaction impugned in the action, but an individual shareholder is permitted to sue for redressing such legal wrong or injury to the company, because otherwise the company, being under the control of the majority shareholders would be without judicial redress. Vide: Atwood v. Merry Weather, (1867) 5 Eq 464, The Judicial Committee of the Privy Council also affirmed this exception to the strict rule of standing in Durayappah v. Fernando, (1967) 2 AC 337. There what happened was that the Jaffna Municipal Council was dissolved by the Minister of Local Government without giving it an opportunity to be heard. The order of dissolution was therefore voidable at the instance of the Council, but the Council did not complain. The appellant was a mayor at the time of the dissolution and he petitioned for a writ in the nature of certiorari to quash the order of dissolution. Lord 32 Upjohn speaking on behalf of the Judicial Committee denied standing to the appellant in the following words: “The appellant was no doubt mayor at the time of its dissolution but that does not give him any right to complain independently of the Council. He must show that he is representing the Council or suing on its behalf or that by reason of certain circumstances, such, for example, as that the council could not use its seal because it is in the possession of the Municipal Commissioner, or for other reasons it has been impracticable for the members of the council to meet to pass the necessary resolutions, the council cannot be the plaintiff.” The Judicial Committee thus clearly laid down that for a legal wrong or legal injury caused to the council, it is only the council which can sue but if a member of the council can show that for some sufficient reasons it is not possible for the council to take action for challenging the order of dissolution, he can file an application for a writ to assert the right of the council and to redress the legal wrong or injury done to the council. We find that in the United States of America also this exception has been recognised and the strict rule of standing has been liberalized in the interest of justice. In Barrows v. Jackson, (1952) 346 US 249 : 97 Law Ed 1586, the defendant was sued for breach of a restrictive covenant binding the defendant not to sell his property to non-cancacians and claiming damages. The defendant raised the plea that the judgment of the Court allowing damages for breach of the covenant would constitute denial of the equal protection clause to non-cancacians, because a prospective seller of restricted land would either refuse to sell to non-cancacians or else would require non-cancacians to pay a higher price to meet the damages which the seller may have to pay. The argument put forward in answer to this plea was that the defendant was not entitled to plead in defence the constitutional rights of non-Caucasians. But the Supreme Court of the United States negatived this argument observing: “We are faced with a unique situation in which it is an action of the State Court which might result in a denial of constitutional rights and in which it would be difficult if not impossible for the persons 33 whose rights are asserted to present their grievance before any Court”. Even in our own country we have recognised this departure from the strict rule of locus standi in cases where there has been a violation of the constitutional or legal rights of persons who by reason of their socially or economically disadvantaged position are unable to approach the Court for judicial redress. We have in such cases permitted a member of the public to move the Court for enforcement of constitutional or legal rights of such persons and judicial redress for the legal wrong or legal injury caused to them. Take for example, the decision of this Court in Sunil Batra v. Delhi Administration, AIR 1980 SC 1579 where this Court accepted the habeas corpus petition of a prisoner complaining of brutal assault by a head warden on another prisoner. It may be incidentally mentioned and this is a point of some importance in the area of judicial remedies – that in this case the Court broadened the scope of habeas corpus by making it available to a prisoner, not only for seeking his liberty, but also for the enforcement of a constitutional right to which he was lawfully entitled even in confinement. Similarly, in Dr. Upendra Baxi v. State of U.P. (1981) 3 Scale 1137 when it was found that the inmates of the Protective Home at Agra were living in inhuman and degrading conditions in blatant violation of Art. 21 of the Constitution and by reason of their socially and economically disadvantaged position, they were not in a position to move the Court for judicial redress, two law professors of the Delhi University addressed a letter, to this Court seeking enforcement of the constitutional right of the inmates under Art. 21 by improvement of the living conditions in the Protective Home, so that the inmates can live with human dignity in the Protective Home. This Court treated the letter as a writ petition and permitted the two law professors to maintain an action for an appropriate writ for the purpose of enforcing the constitutional right of the inmates of the Protective Home and providing judicial redress to them. This Court has also entertained a letter addressed by a journalist claiming relief against demolition of hutments of pavement dwellers by the Municipal Corporation of Bombay and this letter has been treated as a Writ Petition by a 34 Bench presided over by the Chief Justice of India and interim relief has been granted to the pavement dwellers. It may therefore now be taken as well established that where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Art. 226 and in case of breach of any fundamental right of such person or determinate class of persons, in this Court under Art. 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons. Where the weaker sections of the community are concerned, such as under trial prisoners languishing in jails without a trial inmates of the Protective Home in Agra or Harijan workers engaged in road construction in Ajmer District, who are living in poverty and destitution, who are barely eking out a miserable existence with their sweat and toil, who are helpless victims of an exploitative society and who do not have easy access to justice, this Court will not insist on a regular writ petition to be filed by the public spirited individual espousing their cause and seeking relief for them. This court will readily respond even to a letter addressed by such individual acting pro bono publico. It is true that there are rules made by this Court prescribing the procedure for moving this Court for relief under Art. 32 and they require various formalities to be gone through by a person seeking to approach this Court. But it must not be forgotten that procedure is but a handmaiden of justice and the cause of justice can never be allowed to be thwarted by any procedural technicalities. The Court would therefore unhesitatingly and without the slightest qualms of conscience case aside the technical rules of procedure in the exercise of its 35 dispensing power and treat the letter of the public minded individual as a writ petition and act upon it. Today a vast revolution is taking place in the judicial process; the theatre of the law is fast changing and the problems of the poor are coming to the forefront. The Court has to innovate new methods and devise new strategies for the purpose of providing access to justice to large masses of people who are denied their basic human rights and to whom freedom and liberty have no meaning. The only way in which this can be done is by entertaining writ petitions and even letters from public spirited individuals seeking judicial redress for the benefit of persons who have suffered a legal wrong or a legal injury or whose constitutional or legal right has been violated but who by reason of their poverty or socially or economically disadvantaged position are unable to approach the Court for relief. It is in this spirit that the Court has been entertaining letters for judicial redress and treating them as writ petitions and we hope and trust that the High Courts of the country will also adopt this pro- active, goal-oriented approach. But we must hasten to make it clear that the individual who moves the Court for judicial redress in cases of this kind must be acting bona fide with a view to vindicating the cause of justice and if he is acting for personal gain or private profit or out of political motivation or other oblique consideration, the Court should not allow itself to be activised at the instance of such person and must reject his application at the threshold, whether it be in the form of a letter addressed to the Court or even in the form of a regular writ petition filed in Court. We may also point out that as a matter of prudence and not as a rule of law, the Court may confine this strategic exercise of jurisdiction to cases where legal wrong or legal injury is caused to a determinate class or group of persons or the constitutional or legal right of such determinate class or group of persons is violated and as far as possible, not entertain cases of individual wrong or injury at the instance of a third party, where there is an effective legal aid organization which can take care of such cases. 36 The types of cases which we have dealt with so far for the purpose of considering the question of locus standi are those where there is a specific legal injury either to the applicant or to some other person or persons for whose benefit the action is brought, arising from violation of some constitutional or legal right or legally protected interest. What is complained of in these cases is a specific legal injury suffered by a person of a determinate class or group of persons. But there may be cases where the State or a public authority may act in violation of a constitutional or statutory obligation or fail to carry out such obligation, resulting in injury to public interest or what may conveniently be termed as public injury as distinguished from private injury. Who would have standing to complain against such act or omission of the State or public authority? Can any member of the public sue for judicial redress? Or is the standing limited only to a certain class of persons? Or there is no one who can complain and the public injury must go un-redressed. To answer these questions it is first of all necessary to understand what is the true purpose of the Judicial function. This is what Prof. Theo states in his book on “Locus Standi and Judicial Review”: “Is the judicial function primarily aimed at preserving legal order by confining the legislative and executive organs of government within their powers in the interest of the public (Jurisdiction de droit objectif) or is it mainly directed towards the protection of private individuals by preventing illegal encroachments on their individual rights (jurisdiction de droit subjectif)? The first contention rests on the theory that Courts are the final arbiters of what legal and illegal ……… Requirements of locus standi are therefore necessary in this case since they merely impede the purpose of the function as conceived here. On the other hand, where the prime aim of the judicial process is to protect individual rights, its concern with the regularity of law and administration is limited to the extent that individual rights are infringed.” We would regard the first proposition as correctly setting out the nature and purpose of the judicial function, as it is essential 37 to the maintenance of the rule of law that every organ of the State must act within the limits of its power and carry out the duty imposed upon it by the Constitution or the law. If the State or any public authority acts beyond the scope of its power and thereby causes a specific legal injury to a person or to a determinate class or group of persons, it would be a case of private injury actionable in the manner discussed in the preceding paragraphs. So also if the duty is owed by the State or any public authority to a person or to a determinate class or group of persons, it would give rise to a corresponding right in such person or determinate class or group of persons and they would be entitled to maintain an action for judicial redress. But if no specific legal injury is caused to a person or to a determinate class or group of persons by the act or omission of the State or any public authority and the injury is caused only to public interest, the question arises as to who can maintain an action for vindicating the rule of law and setting aside the unlawful action or enforcing the performance of the public duty. If no one can maintain an action for redress of such public wrong or public injury, it would be disastrous for the rule of law, for it would be open to the State or a public authority to act with impunity beyond the scope of its power or in breach of a public duty owed by it. The Courts cannot countenance such a situation where the observance of the law is left to the sweet will of the authority bound by it, without any redress if the law is contravened. The view has therefore been taken by the Courts in many decisions that whenever there is a public wrong or public injury caused by an act or omission of the State or a public authority which is contrary to the Constitution or the law, any member of the public acting bonafide and having sufficient interest can maintain an action for redressal of such public wrong or public injury. The strict rule of standing which insists that only a person who has suffered a specific legal injury can maintain an action for judicial redress is relaxed and a broad rule is evolved which gives standing to any member of the public who is not a mere busy-body or a meddlesome interloper but who has sufficient interest in the proceeding. There can be no doubt that the risk of legal action against the State or a public 38 authority by any citizen will induce the State or such public authority to act with greater responsibility and care thereby improving the administration of justice. Lord Diplock rightly said in Rex v. Inland Revenue Commrs. (1981) 2 WLR 722 at p. 740: “It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a single public-spirited taxpayer, were prevented by out-dated technical rules of locus standi from bringing the matter to the attention of the Court to vindicate the rule of law and get the unlawful conduct stopped……. It is not, in my view, a sufficient answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a Court of Justice for the lawfulness of what they do, and of that the Court is the only judge.” The broadening of the rule of locus standi has been largely responsible for the development of public law, because it is only the availability of judicial remedy for enforcement which invests law with meaning and purpose or else the law would remain merely a paper parchment, a teasing illusion and a promise of unreality. It is only by liberalising the rule of locus standi that it is possible to effectively police the corridors of powers and prevent violations of law. It was pointed out by Schwartz and H.W.R. Wade in their book on “Legal Control of Government” at page 354: “Restrictive rules about standing are in general inimical to a healthy system of administrative law. If a plaintiff with a good case is turned away, merely because he is not sufficiently affected personally, that means that some government agency is left free to violate the law, and that is contrary to the public interest. Litigants are unlikely to expend their time and money unless they have some real interest at stake. In the rare cases 39 where they wish to sue merely out of public spirit, why should they be discouraged?” It is also necessary to point out that if no one can have standing to maintain an action for judicial redress in respect of a public wrong or public injury, not only will the cause of legality suffer but the people not having any judicial remedy to redress such public wrong or public injury may turn to the street and in that process, the rule of law will be seriously impaired. It is absolutely essential that the rule of law must wean the people away from the lawless street and win them for the court of law. There is also another reason why the rule of locus standi needs to be liberalised. Today we find that law is being increasingly used as a device of organised social action for the purpose of bringing about socio-economic change. The task of national reconstruction upon which we are engaged has brought about enormous increase in developmental activities and law is being utilized for the purpose of development, social and economic. It is creating more and more a new category of rights in favour of large sections of people and imposing a new category of duties on the State and the public officials with a view to reaching social justice to the common man. Individual rights and duties are giving place to meta-individual, collective, social rights and duties of classes or groups of persons. This is not to say that individual rights have ceased to have a vital place in our society but it is recognised that these rights are practicably meaningless in today’s setting unless accompanied by the social rights necessary to make them effective and really accessible to all. The new social and economic rights which are sought to be created in pursuance of the Directive principles of State Policy essentially require active intervention of the State and other public authorities. Amongst these social and economic rights are freedom from indigency, ignorance and discrimination as well as the right to a healthy environment, to social security and to protection from financial commercial, corporate or even governmental oppression. More and more frequently the conferment of these socio-economic rights and imposition of public duties on the State and other authorities for 40 taking positive action generates situations in which single human action can be beneficial or prejudicial to a large number of people, thus making entirely inadequate the traditional scheme of litigation as merely a two-party affairs. For example, the discharge of affluent in a lake or river may harm all who want to enjoy its clean water; emission of noxious gas may cause injury to large number of people who inhale it along with the air, defective or unhealthy packaging may cause damage to all consumers of goods and so illegal raising of railway or bus fares may affect the entire public which wants to use the railway or bus as a means of transport. In cases of this kind it would not be possible to say that any specific legal injury is caused to an individual or to a determinate class or group of individuals. What results in such cases is public injury and it is one of the characteristics of public injury that the act or acts complained of cannot necessarily be shown to affect the rights of determinate or identifiable class or group of persons: public injury is an injury to an indeterminate class of persons. In these cases the duty which is breached giving rise to the injury is owed by the State or a public authority not to any specific or determinate class or group of persons, but to the general public. In other words, the duty is one which is not correlative to any individual rights. Now if breach of such public duty were allowed to go unredressed because there is no one who has received a specific legal injury or who was entitled to participate in the proceedings pertaining to the decision relating to such public duty, the failure to perform such public duty would go unchecked and it would promote disrespect for the rule of law. It would also open the door for corruption and inefficiency because there would be no check on exercise of public power except what may be provided by the political machinery, which at best would be able to exercise only a limited control and at worst, might become a participant in misuse or abuse of power. It would also make the new social collective rights and interests created for the benefit of the deprived sections of the community meaningless and ineffectual. 41 Now, as pointed out by Cappellatti in Vol III of his classic work on “Access to Justice” at page 520, “The traditional doctrine of standing (legitimatio and causam) attributes the right to sue either to the private individual who ‘holds’ the right which is in need of judicial protection or in case of public rights, to the State itself, which sues in courts through its organs”. The principle underlying the traditional rule of standing is that only the holder of the right can sue and it is therefore, held in many jurisdictions that since the State representing the public is the holder of the public rights, it alone can sue for redress of public injury or vindication of public interest. It is on this principle that in the United Kingdom, the Attorney-General is entrusted with the function of enforcing due observance of the law. The Attorney-General represents the public interest in its entirety and as pointed out by S.A. de Smith in “Judicial review of Administrative Action” (Third edition) at page 403; “the general public has an interest in seeing that the law is obeyed and for this purpose, the Attorney General represents the public.” There is, therefore, a machinery in the United Kingdom for judicial redress for public injury and protection of social, collective, what Cappelletti calls ‘diffuse’ rights and interests. We have no such machinery here. We have undoubtedly an Attorney General as also Advocates General in the States, but they do not represent the public interest generally. They do so in a very limited field; see Sections 91 and 92 of the Civil Procedure Code. But, even if we had a provision empowering the Attorney General of the Advocate General to take action for vindicating public interest, I doubt very much whether it would be effective. The Attorney General or the Advocate General would be too dependent upon the political branches of Government to act as an advocate against abuses which are frequently generated at least tolerated by political and administrative bodies. Be that as it may, the fact remains that we have no such institution in our country and we have therefore to liberalise the rule of standing in order to provide judicial redress for public injury arising from breach of public duty or from other violation of the Constitution or the law. If public duties are to be enforced and social collective ‘diffused’ rights and interests are to be protected, we have to utilize the 42 initiative and zeal of public-minded persons and organisations by allowing them to move the court and act for a general or group interest, even though, they may not be directly injured in their own rights. It is for this reason that in public interest litigation – litigation undertaken for the purpose of redressing public injury, enforcing public duty, protecting social, collective, ‘diffused’ rights and interests or vindicating public interest, any citizen who is acting bona fide and who has sufficient interest has to be accorded standing. What is sufficient interest to give standing to a member of the public would have to be determined by the Court in each individual case. It is not possible for the Court to lay down any hard and fast rule or any strait-jacket formula for the purpose of defining or delimiting ‘sufficient interest’, it has necessarily to be left to the discretion of the Court. the reason is that in a modern complex society which is seeking to bring about transformation of its social and economic structure and trying to reach social justice to the vulnerable sections of the people by creating new social, collective ‘diffuse’ rights and interests and imposing new public duties on the State and other public authorities, infinite number of situations are bound to arise which cannot be imprisoned in a rigid mould or a procrustean formula. The Judge who has the correct social perspective and who is on the same wave-length as the Constitution will be able to decide, without any difficulty and in consonance with the constitutional objectives, whether a member of the public moving the court in a particular case has sufficient interest to initiate the action. It is interesting to note that the concept of public interest litigation had its origin in the United States and over the years, it has passed through various vicissitudes in the country of its origin. We do not propose to enumerate or examine various decisions given by the Supreme Court of the United States from time to time in regard to standing in public interest litigation, for no useful purpose would be served by such exercise. Suffice it to state in that country, the strict requirement of legal interest has been watered down. Justice Douglas said in Association of Data Processing Service v. William B. Camp (1970) 397 US 150 : 43 25 Law Ed 2d 184 that “the legal interest tests goes to the merits. The question of standing is different”. Similarly Justice Brennan. Citing Flats, observed that “the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not…… whether the plaintiff had a legally protected interest which the defendant’s action invaded” Italics (herein underline) supplied). This view also found expression in Office of Communication of United Church of Christ v. FCC 123 US App DC 328 where the standing television viewers was upheld with following observations: Since the concept of standing is “one designed to assure that only one with a genuine and legitimate interest can participate in a proceeding, we can see no reason to exclude those with such an obvious and acute concern as the listening audience.” Vide article on “Evolving Trends in Locus Standi; Models For Decision-Making” by D.Y. Chandrachud. But of late, there has been a slight regression in this dynamic approach. See United States v. William B. Richardson, (1974) 418 US 166 and Warth v. Seldin, (1974) 422 US 490, where the Supreme Court of United States seems to have recoiled a title against expansion of its judicial power. So far as the United Kingdom is concerned, there have been remarkable developments in this area in recent times largely due to the dynamic activism of Lord Denning. The Mc. Whirter case and the three well known Blackburn cases clearly establish that any member of the public having sufficient interest can maintain an action for enforcing a public duty against a statutory or public authority. We need not make a detailed reference to all these cases but it will be sufficient if we refer to the Mc. Whirter case and one of the three Blackburn cases. The Mc Whirter case is reported in Attorney General v. Independent Broadcasting Authority (1973) 1 All ER 689. This was an action by Mc Whirter for injunction against the Broadcasting Authority which was threatening to show a film which did not comply with the statutory requirements and the showing of which would therefore be illegal. Lord Denning considered the question whether Mc Whirter had locus standi to bring the action when 44 leave to bring a relator action was refused by the Attorney General, and answering this question in the affirmative, he said: “We live in an age when Parliament has placed statutory duties on government departments and public authorities for the benefit of the public – but has provided no remedy for the breach of them. If a government department or a public authority transgresses the law laid down by Parliament, or threatens to transgress it, can a member of the public come to the Court and draw the matter to its attention…. I am of the opinion that, in the last resort, if the Attorney General refuses leave in a proper case or improperly or unreasonably delays in giving leave, or his machinery works too slowly, then a member of the public who has sufficient interest, can himself apply to the Court itself.” Lord Denning held that Mc Whirter had sufficient interest to bring the action since he had a television set for which he had paid licence fee and his susceptibility would be offended like that of many others watching television if the film was shown in breach of the statutory requirements. It may be noticed that in this case the duty which was sought to be enforced against the Broadcasting Authority was one which the Broadcasting Authority owed to the general public and not to any specific individual or class or group of individuals. The same principle was applied by Lord Denning in Reg v. Greater London Council, Ex parte Blackburn, (1976) 3 All ER 184 to accord standing to Blackburn to maintain an action for an order of prohibition preventing the greater London Council from allowing, contrary to law, the exhibition of pornographic films. Here again the duty owned by the Greater London Council was to the general public and not to any specific or determinate class or group of persons and there was no one who could claiom that a specific legal injury was caused to him by the exhibition of pornographic films. But even so Lord Denning held that Blackburn was entitled to maintain an action because he had sufficient interest, he was a citizen of London, his wife was a rate payer and he had children who might be harmed by the exhibition of pornographic films. The learned Master of the Rolls emphasized that if Blackburn had no sufficient interest, no other citizen had, and in that event no one would be able to bring an action for enforcing the law and the transgression of the law would continue unabated. The principle on 45 which the learned Master of the Rolls proceeded was formulated by him in these words: “I regard it as a matter of high constitutional principle, that if there is good ground for supposing that a government department or a public authority is transgressing the law, or is about to transgress it, in a way which offends or injures thousands of his Majesty’s subjects, then anyone of those offended or injured can draw it to the attention of the courts of law and seek to have the law enforced, and the courts in their discretion can grant whatever remedy is appropriate.” The House of Lords, of course, in Gouriet v. UPW 1978 AC 482 took the view that the Attorney General alone can sue for enforcing the observance of the law and if he refuses to give his consent to a relator action, such refusal was not reviewable by the courts and without such consent, a member of the public could not maintain his action. We do not think it necessary to examine this decision because it has no binding effect upon us. But we may point out that this decision has been severely criticized by jurists in England and elsewhere. It is clearly erroneous and shows the high water mark of abdication of judicial power which is likely to stultify the development of public law in the United Kingdom. There is however one distinguishing feature which we must point out, namely, that the action in that case was a relator action and not application for a writ. We would, therefore, hold that any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision. This is absolutely essential for maintaining the rule of law, furthering the cause of justice and accelerating the pace of realization of the constitutional objective “Law, as pointed out by Justice Krishna Iyer in Fertilizer Corporation Kamgar Union v. Union of India, AIR 1981 SC 344 “is a social auditor and this audit function can be put into action when some one with real public interest ignites the jurisdiction. A fear is sometimes expressed that if we keep the door wide open for any member of the public to enter the portals of the Court to enforce public 46 duty or to vindicate public interest, the Court will be flooded with litigation. But this fear is totally unfounded and the argument based upon it is answered completely by the Australian Law Reforms Commission in the following words: “The idle and whimsical plaintiff, a dilettante who litigates for a lark, is a spectre which haunts the legal literature, not the court room (Prof. K. E. Scott: “Standing in the Supreme Court: A Functional Analysis” (1973) 86) A major expressed reason for limiting standing rights is fear of a spate of actions brought by busybodies which will unduly extend the resources of the courts. No argument is easier put, none more difficult to rebut. Even if the fear be justified it does not follow that present restrictions should remain. If proper claims exist it may be necessary to provide recourses for their determination. However, the issue must be considered. ……. Over recent years successive decisions of the United States Supreme Court have liberalised standing so as to afford a hearing to any person with a real interest in the relevant controversy. Surveying the result in 1973 Professor Scott commended: (Op Cit, 673) ‘When the floodgates of litigation are opened to some new class of controversy by a decision it is notable how rarely one can discern the flood that the dissentors feared. Professor Scott went on to point out that the liberalised standing rules had caused no significant increase in the number of actions brought, arguing that parties will not litigate at considerable personal cost unless they have a real interest in a matter.” We wholly endorse these remarks of the Australian Law Reforms Commission. We may add, with Justice Krishna Iyer: “In a society where freedoms suffer from atrophy, and activism is essential for participative public justice, some risks have to be taken and more opportunities opened for the public minded citizen to rely on the legal process and not be repelled from it by narrow pedantry now surrounding locus standi.” It is also interesting to note that in India, as 47 in other Commonwealth countries, the strict rule of standing does not apply to a writ of quo warranto or a rate payer’s action against a municipality, but there is no evidence that this has let loose the flood gates of litigation in these areas. The time, money and other inconveniences involved in litigating a case act as sufficient deterrent for most of us to take recourse to legal action vide article of Dr. S.N. Jain on “Standing and Public Interest Litigation.” Before we part with this general discussion in regard to locus standi, there is one point we would like to emphasise and it is that cases may arise where there is undoubtedly public injury by the act or omission of the State or a public authority but such act or omission also causes a specific legal injury to an individual or to a specific class or group of individuals. In such cases, a member of the public having sufficient interest can certainly maintain an action challenging the legality of such act or omission, but if the person or specific class or group of persons who are primarily injured as a result of such act or omission, do not wish to claim any relief and accept such act or omission willingly and without protest, the member of the public who complains of a secondary public injury cannot maintain the action, for the effect of entertaining the action at the instance of such member of the public would be to foist a relief on the person or specific class or group of persons primarily injured, which they do not want.” The Hon’ble Supreme Court has held in Subhash Kumar v. State of Bihar and others, AIR 1991 SC 420 that recourse to public interest litigation should be taken up by a person genuinely interested in protecting society and the same cannot be invoked by person or body of persons to satisfy his or its personal grudge and enmity. Their Lordships have held as under:- “Article 32 is designed the enforcement of Fundamental Rights of a citizen by the Apex Court. It provides for an extraordinary procedure to safeguard the Fundamental rights of a citizen. Right to live is a fundamental right under Art. 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life. If anything endangers of impairs that quality of life in derogation of laws, a citizen has right to have recourse to Art. 32 of the Constitution 48 for removing the pollution of water or air which may be determined to the quality of life. A petition under Art. 32 for the prevention of pollution is maintainable at the instance of affected persons or even by a group of social workers or journalists. But recourse to proceedings under Art. 32 of the Constitution should be taken by a person genuinely interested in the protection of society on behalf of the community. Public interest litigation cannot be invoked by a person or body of persons to satisfy his or its personal grudge and enmity. If such petitions under Article 32, are entertained it would amount to abuse of process of the Court, preventing speedy remedy to other genuine petitioners from this Court. Personal interest cannot be enforced through the process of this Court under Art. 32 of the Constitution in the garb of a public interest litigation. Public interest litigation contemplates legal proceeding for vindication or enforcement of fundamental rights of a group of persons or community which are not able to enforce their fundamental rights on account of their incapacity, poverty or ignorance of law. A person invoking the jurisdiction of this Court under Art. 32 must approach this Court for the vindication of the fundamental rights of affected persons and not for the purpose of vindication of his personal grudge or enmity. It is duty of this Court to discourage such petitions and to ensure that the course of justice is not obstructed or polluted by unscrupulous litigants by invoking the extraordinary jurisdiction of this Court for personal mattes under the garb of the public interest litigation, see Bandhua Mukti Morch v. Union of India, (1984) 2 SCC 295 at p 331 : (AIR 1987 SC 1109); Ramsharan Autyanuprasi v. Union of India (1989) Supp 117 SCC 251 and Chhetriya Pardushan Mukti Sangharsh Samiti v. State of U.P., (1990) 4 SCC 449.” The Hon’ble Supreme Court in The Janta Dal v. H.S. Chowdhary and others, AIR 1993 SC 892 held that in defining the rule of locus standi no rigid test can be applied since broad contours are still developing. Their lordships have held as under:- “Though it is imperative to lay down clear guidelines and propositions; and outline the correct parameters for entertaining a 49 Public Interest Litigation – particularly on the issue of locus standi yet no hard and fast rules have yet been formulated and no comprehensive guidelines have been evolved. There is also one view that such adumbration is not possible and it would not be expedient to lay down any general rule which would govern all cases under all circumstances. Be that as it is may, it needless to emphasise that the requirement of locus standi of a party to a litigation is mandatory; because the legal capacity of the party to any litigation whether in private or public action in relation to any specific remedy sought for has to be primarily ascertained at the threshold. The traditional syntax of law in regard to locus standi for a specific judicial redress, sought by an individual person or determinate class or identifiable group of persons, is available only to that person or class or group of persons who has or have suffered a legal injury by reasons of violation of his or their legal right or a right legally protected, the invasion of which gives rise to actionability within the categories of law. In a private action, the litigation is bipolar; two opposed parties and locked in a confrontational controversy which pertains to the determination of the legal consequences of past events unlike in public action. The character of such litigation is essentially that of vindicating private rights, proceedings being brought by the persons in whom the right personally inhere or their legally constituted representatives who are thus obviously most competent to commence the litigation. In contrast, the strict rule of locus standi applicable to private litigation is relaxed and a broad rule is evolved which gives the right of locus standi to any member of the public acting bona fide and having sufficient interest in instituting an action for redressal of public wrong or public injury, but who is not a mere busy body or a meddlesome interloper, since the dominant object of PIL is to ensure observance of the provisions of the Constitution or the law which can be best achieved to advance the cause of community or disadvantaged groups and individuals or public interest by permitting any person, having no personal gain or private motivation or any other oblique consideration but acting bona fide and having sufficient interest in maintaining an action for judicial redress for public injury to put the judicial machinery 50 in motion like actio popularis of Roman Law whereby any citizen could bring such an action in respect of a public delict. From the above pronouncements, it emerges that this summit Court has widely enlarged the scope of PIL by relaxing and liberalising the rule of standing by treating letters or petitions sent by any person or association complaining violation of any fundamental rights and also entertaining Writ petitions filed under Art. 32 of the Constitution by public spirited and policy oriented activist persons or journalists or of any organisation rejecting serious challenges made with regard to the maintainability of such petitions rendered many virtuosic pronouncements and issued manifold directions to the Central and the State Governments, all local and other authorities within the territory of India or under the control of the Government of India for the betterment of the public at large in many fields in conformity with constitutional prescriptions of what constitutes the good life in a socially just democracy. The newly invented proposition of law laid down by many learned Judges of this Court in the arena of PIL irrefutably and manifestly establish that our dynamic activism in the field of PIL is by no means less than those of other activist judicial systems in other part of the world. It may not be out of place to mention here that there may be numerous circumstances justifying the entertaining of Public Interest Litigation but we cannot obviously enumerate an exhaustive list of all such situations. It is thus clear that only a person -acting bona fide 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, a vexatious petition under the colour of PIL brought before the Court for vindicating any personal grievance, deserves rejection at the threshold. The Hon’ble Supreme Court has held in Dr. Meera Massey (Mrs.) versus Dr. S.R. Mehrotra and Others, (1998) 3 SCC 88 that the Professor had the locus standi to assail the appointments of the Research Associates who are Evaluators 51 and Lecturers by the Executive Council in contravention of the Ordinance of the University. Their Lordships have held as under:- “Having considered the submissions, we do not find any of the observations made hereinbefore is applicable in the present case. We find Dr. Mehrotra has filed the writ petition being concerned with the anomalies and illegalities in the procedure adopted by the University in making selection and regularising the various posts in contradiction to the Acts, Statute and Ordinances. He was aware fully of all what was happening with full grip of all the materials. Facts reveal he was genuinely concerned to rectify the wrongs without any personal animosity against anyone. His feelings were bona fide, being professor of History in the same University. He had all the details, fully equipped with facts and the law pertaining to the University. It was not for any personal gain. It was neither politically motivated nor for publicity. The golden key for public interest litigation was delivered in the land mark decision of this Court in, S.P. Gupta's case, 1981 (Suppl) SCC 87 : (AIR 1982 SC 149). This was devised for increasing citizens participation in the judicial process for making access to the judicial delivery system to such who could not otherwise reach Court for various reasons. But it is also true, since then this Court repeatedly has been cautioning its misuse laying down restrictions to scuttle out undesirable persons or body. It is in this context the above observations were made by this Court as relied by the appellants but that very authority accords approval for filing such public interest litigation. After having elaborately explained the concept of PIL, the learned Judge held that: (SCC p. 218, para 23) “… any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision. This absolutely essential for maintaining the rule of law, furthering the cause of justice and accelerating the pace of realization of the constitutional objectives.” 52 The Hon’ble Supreme Court has held in “J. Jayalalitha versus Government of Tamil Nadu and Others, (1999) 1 SCC 53 that any taxpayer in the State has a right to challenge the misuse or improper use of any public property by anyone including the political party in power, where large sums of taxpayers’ money had been spent to build such public property. Their Lordships have held as under:- “We put this suggestion to learned Counsel and after some persuasive discussion, looking to the sensitivity of the matter, they have agreed to such proposition. We must hasten to add that this solution came after it was made clear to the parties' counsel that in the face of the ban imposed, we saw no justification for letting out the Stadium to any person to conduct activities other than sports and games or activities subservient, ancillary, or consequential to these objects. The step we have devised is just to save embarrassment to all concerned because we are told that lot of money has been spent in printing invitations to the invitees and as otherwise this would lead to lot of confusion to dignitaries who might have plans to come to participate in the celebration. We make it clear that the instance referred to in the letter of permission and the counter-affidavit filed by the respondents pertaining to a one time user of the Stadium by the present appellant when a Chief Minister, would in no event be permitted to be quoted as precedent or creating any right in favour of anyone to ever claim the Stadium for the purposes other than those mentioned earlier so long as the ban continues and we see no reason why the ban should not continue ever after. We are told that crores of rupees have gone to erect such a Stadium which meets international standards. It goes without saying that it was the tax-payers money which went to build the Stadium. The tax-payers have a right to its being maintained as such and not to be treated as just any other public place for being hired at convenience by anyone. The justification sought here that the State would be richer by two lacs of rupees as rental for the day does not convince us a wee bit. That understanding is totally alien to the purpose for which stadia are built and most of all, the present one. 53 The Hon’ble Supreme Court has held in Chairman, Railway Board and Others versus Chandrima Das (Mrs.) and Others, (2002) 2 SCC 465 that for the maintainability of the public interest petition, personal injury or loss is not an essential element of standing. Their Lordships have held as under:- “The main contention of the learned counsel for the appellants is that Mrs. Chandrima Das was only a practising advocate of the Calcutta High Court and was, in no way, connected or related to the victim, Smt. Hanuffa Khatoon and, therefore, she could not have filed a petition under Article 226 for damages or compensation being awarded to Smt. Hanuffa Khatoon on account of the rape committed on her. This contention is based on a misconception. Learned counsel for the appellants is under the impression that the petition filed before the Calcutta High Court was only a petition for damages or compensation for Smt. Hanuffa Khatoon. As a matter of fact, the reliefs which were claimed in the petition included the relief for compensation. But many other reliefs as, for example, relief for eradicating anti- social and criminal activities of various kinds at Howrah Railway Station were also claimed. The true nature of the petition, therefore, was that of a petition filed in public interest. The existence of a legal right, no doubt, is the foundation for a petition under Article 226 and a bare interest, may be of a minimum nature, may give locus standi to a person to file a Writ Petition, but the concept of "Locus Standi" has undergone a sea change, as we shall presently notice. In Dr. Satyanarayana Sinha v. S. Lal and Co.