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ZILA NISHAD SABHA BOAT MENS UTTHAN SAMITI & OTHERS versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Zila Nishad Sabha Boat Mens Utthan Samiti & Others v. State Of U.P. & Others - PUBLIC INTEREST LITIGATION (PIL) No. - 27546 of 2004 [2007] RD-AH 18366 (27 November 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

kCourt No. 3

Civil Misc. Writ Petition No.27546 of 2004

Zila Nishad Sabha and others .... Petitioners

Vs.

State of U.P. and others ......... Respondents

Present:

(Hon'ble Mr. Justice Amitava Lala & Hon'ble Mr. Justice V.C. Misra)

Appearance:

For the Petitioners : Sri Sudhakar Pandey

Sri K.C. Tripathi

For the Respondents: Standing Counsel

Sri R.N. Singh

Sri Sudhakar Pandey

Sri V.N. Tripathi

Sri A.K. Shukla

*******

Amitava Lala, J- This writ petition has been filed by the petitioners in the form of public interest litigation herein and according to the petitioners, they are the registered society and the President as well as the Members of the same. Initially they have made the prayers which are quoted below:-

(a) issue a writ, order or direction in the nature of mandamus directing to the opposite parties not to change the nature of land by raising construction over land in question which is under the territorial campus of 200 meters from the bank of the Ganga river;

(b) issue a writ, order or direction in the nature of mandamus directing to the opposite party Nos.1 to 8 to restrain opposite party Nos.9 and 10 to raise construction over Arazi Nos.37,38,39,40 and 43 which is belt of the Ganga river;

(c) issue any suitable writ, order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case;

(d) award costs of the writ petition in favour of petitioners.

Thereafter on the basis of an amendment application, an order was passed by this Court on 13.4.2005 and the following prayer was inserted:-

(e) issue a writ, order or direction in the nature of mandamus commanding the respondent Nos.1 to 8 to protect Ganga river from pollution by restraining the construction raised by the respondent Nos.9 and 10 or any one within territorial campus of 200 meters from the bank of Ganga river over the land in question to maintain religious faith of people at large.

The respondents and other authorities have filed their affidavits, but according to the petitioners, the State itself has not filed any affidavit. However, at the time of hearing of the case, we found that the petitioners only want consideration of the case by the court.

According to us, we have to prima facie satisfied with regard to maintainability of the writ petition irrespective of exchange of affidavits particularly when entertainment of the Public interest Litigation (PIL) as a matter of course is discouraging state of affairs now a days. We find a point has been taken by the petitioners about construction of house by the private respondent within 200 meters from the bank of river Ganga, which according to petitioners cause pollution due to drainage etc. Therefore, the question arises whether the Pollution Control Board was approached by the petitioners and or made party hereunder for the purpose of due consideration or not. We find neither the Pollution Control Board was approached or made party.

The learned counsel obtained an adjournment from that very date and the matter has been placed today itself. Today he has come with an application to implead U.P. Pollution Control Board, Regional Office Jhunsi, Allahabad through its regional office as respondent no.12 in the writ petition. It has been specifically mentioned in the application as well as in the affidavit in support of the same that there was a representation before it on 5.7.2004. On inquiry, learned counsel appearing for the petitioners is not in a position to supply copy of such representation. Although the date has been specifically given twice but not have annexed with any such application. However, he contended that in general the Ganga river should not be polluted in the manner as it has been done by private resident who are present there.

We have come to know from the affidavits and counter affidavits that a civil Suit is pending before the appropriate Court allegedly filed by some persons being Civil Suit No.150 of 2002. The petitioners contended earlier that the Misc. Writ petition was filed before this Court which was ultimately dismissed. In any event the petitioners are not in a position to say that if the suit instituted in the year 2002 why they have approached this Court by making Public Interest Litigation in 2004. They have obtained interim order on 19.7.2004 which is still existing. In paragraph 4 of the supplementary counter affidavit of private respondent, i.e., Gyan Mata Dr. Radha Satyam, which is quoted below:

"4. That on the other hand, the petitioners have not annexed necessary documents so that their identity could be ascertained. According to the enquiries made by the answering respondents, petitioner No.1 is totally non-existent organization. It appears to have been floated by the other petitioners."

It appears that Sri Sudhakar Pandey, Advocate on behalf of the petitioners also residing within the radius of 200 meters of river Ganga of such locality. It has further stated that he is personally interested person about the litigation. All these facts are noted hereunder. One aspect is very clear that if any person construct any house within 200 meters from the bank of the river Ganga he is liable to face the consequence provided notification to that extent is still existence. In any event, we are not the fact finding authority to consider whether any consideration has been made within such radius which causing any pollution of river Ganga or not. The appropriate authority is the Pollution Control Board. Unless and until the Pollution Control Board consider the issue and came to the appropriate finding, no cause of action can be available for the purpose of due consideration by the writ Court. In totality, the writ petition ought to be dismissed and accordingly dismissed. However, no cost is imposed but cautioned that if the petitioners unnecessarily rush to this Court and that too having personal interest enormous cost will be imposed. Interim order, if any, stands vacated. However, passing of this order in no way effect the right of the parties, if any, to proceed before the appropriate forum for due consideration. As a consequential effect, the impleadment application is rejected also without imposing any costs. This order will have binding effect in the second Writ Petition No.44291 of 2004, Smt. Jai Raji Vs. State of U.P. and others.

( Justice Amitava Lala )

I agree

( Justice V.C. Misra )

November 27, 2007

Hasnain


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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