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TMI Blog2005 (5) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Kalanidhi Maran, who is at the helm of the SUN TV Network of Companies, there is every chance of there being undue influence in the processing of the application, the entire process is vitiated by mala fides and bias and since there is imminent danger of the application being considered favourably violating the provisions of the Competition Act, 2002, the petitioner is entitled to maintain a quia timet action. Learned counsel further submitted that though specific allegations have been made naming the Union Minister and his brother Mr. Kalanidhi Maran in the affidavit filed in support of the writ petition, neither of them has chosen to deny the allegations and therefore, the allegations stand unrebutted. The learned counsel also submitted that the petitioner, being a Member of Parliament who has already filed a Public Interest Litigation, which is pending, has the locus standi to bring to the notice of the Court when glaring violations of law are being perpetrated and he is also entitled to maintain this Public Interest Litigation. The learned counsel further submitted that though a letter has been given to the respondents to produce the relevant files, they had not produced the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard on 26-5-2005. 4. Mr. V.T. Gopalan, learned Additional Solicitor General of India submit- ted that the writ petition is not a genuine Public Interest Litigation. The purpose of filing of the writ petition is not bona fide and it is clear that other reasons have prevailed upon the writ petitioner to file this writ petition and not public interest. The writ petition is bereft of details as to the role played by various respondents who have been arrayed as parties. The grant of licence is an exercise of sovereign function and the Competition Act specifically excludes activities of the Government which are related to the sovereign functions of the Government. It was further submitted that if the petitioner was relying on the provisions of the Competition Act, then a reading of the Act would show that the Act cannot be invoked until an agreement is entered into pursuant to the grant of a licence and that stage has not yet been reached. According to the learned Additional Solicitor General, the grant of licence is still under consideration and at this stage, the Court cannot substitute itself in the place of the authority who is empowered to grant the licence. The right to apply f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation will be rejected. Therefore, the question is, does the sixth respondent have a right to apply and if the sixth respondent has the right to apply, then the acceptance or rejection of the sixth respondent's application can be done only by the authorities. According to the learned Senior Counsel, the Competition Act will not come into play. The only reason why the writ petition has been filed is so that the grant of the licence to the sixth respondent can be delayed. Learned Senior Counsel referred to two judgments in support of their submissions-Dattaraj Nathuji Thaware v. State of Maharashtra 2005 (1) SCC 590; and Perundurai Citizens Welfare Society v. Tamil Nadu Pollution Control Board 2005 (1) CTC 721. 6. Since the question of maintainability was put in issue, we will have to see whether the petitioner has made out a case for maintaining the writ petition as Public Interest Litigation. For this purpose, the averments in the affidavit filed in support of the writ petition must be looked into. Paragraph 2 of the affidavit reads,- "I got the locus standi to plead for the cause of the public and this petition is filed with all bona fides and this Public Interest Litigation i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. The following extractsfrom Ashok Kumar Pandey's case (supra), at pages 351, 352 & 358 are relevant :- "...Court has to strike balance between two conflicting interests - (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the executive and the Legislature. It is depressing to note that on account of trumpery proceedings initiated before the Courts, innumerable days are wasted, which time otherwise could have been spent for the disposal of cases of genuine litigants. Though the Supreme Court spares no efforts in fostering and developing the laudable concept of PIL and extending its long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed, unrepresented and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deserve to be thrown out by rejection at the threshold, and in appropriate case, with exemplary costs. As noted supra, a time has come to weed out the petitions, which though titled as public interest litigations are in essence somethings else. It is shocking to note that Courts are flooded with a large number of so-called public interest litigations where even a miniscule percentage can legitimately be called public interest litigations. Though the parameters of public interest litigation have been indicated by this Court in a large number of cases, yet unmindful of the real intentions and objectives, Courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. Though in Duryodhan Sahu (Dr.) v. Jitendra Kumar Mishra, 1998 (7) SCC 273, this Court held that in service matters PILs should not be entertained, the inflow of so-called PILs involving service matters continues unabated in the courts and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision. The other interesting aspect is that in the PILs, official documents are be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight. (v)When the Court is prima facie satisfied about variation of any constitutional right of a group of people belonging to the disadvantaged category, it may not allow the State or the Government from raising the question as to the maintainability of the petition. (vi)Although procedural laws apply to PIL cases but the question as to whether the principles of res judicata or principles analogous thereto would apply depends on the nature of the petition as also facts and circumstances of the case. (vii)The dispute between two warring groups purely in the realm of private law would not be allowed to be agitated as a public interest litigation. (viii)However, in an appropriate case, although the petitioner might have moved a Court in his private interest and for redressal of the personal grievances, the Court in furtherance of the public interest may treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice. (ix)The Court in special situations may appoint a Commission, or other bodies for the purpose of investigating into the allegations and finding out facts. It may also direct management of a public institution taken ove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ford Foundation in USA defined 'public interest litigation' in its Report of Public Interest Law, USA, 1976 as follows: 'Public interest law is the name that has recently been given to efforts to provide legal representation to previously unrepresented groups and interests. Such efforts have been undertaken in the recognition that ordinary marketplace for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups and interests include the proper environmentalists, consumers, racial and ethnic minorities and others'." (p. 595) In Perundurai Citizens Welfare' Society (supra) the First Bench of this Court held as follows : "As already stated above, these days 'public interest litigation' has become largely 'private interest litigation' for ulterior motives, or is misused by business rivals, or persons who sponsor such litigation from behind with mala fide intentions. We cannot appreciate these tactics. The docket of the Court is already overfull with arrears. The Court should discourage this kind of motivated litigation, which only adds to its burden." 9. It is not clear how public interest will suffer or publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' Union v. Union of India 2002 (2) SCC 333, where parameters have been laid down for entertaining such petitions. It is relevant to note that in Balco Employees' case the Supreme Court had observed that Public Interest Litigation means litigation in the interest of the public to secure justice for the poor and the weaker sections of the community who were not in a position to protect their own interest. Paragraph 80 of the judgment in Balco Employees Union's case (supra) is relevant and is extracted below : "PIL is not a pill or a panacea for all wrongs. It was essentially meant to protect basic human rights of the weak and the disadvantaged and was a procedure which was innovated where a public spirited person files a petition in effect on behalf of such persons who on account of poverty, helplessness or economic and social disabilities could not approach the Court for relief. There has been in recent times, increasingly instances of abuse of PIL. Therefore, there is a need to re-emphasize the parameters within which PIL can be resorted to by a petitioner and entertained by the Court. This aspect has come up for consideration before this Court and all we need to do is to recapitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act will come into play and that stage has not been reached in this case. Therefore, in either case, the Competition Act has no application. 15. Now we have to see whether de hors the Competition Act the petitioner is entitled to the relief, since the petitioner has relied on various judgments of the Supreme Court in which it has been held that in appropriate cases, the relief can be moulded even though the pleading may be faulty. The DTH Licence is granted to persons who apply for it on fulfilment of certain conditions. Really speaking, it is open to any one and there are no restrictions in that sense. If an applicant satisfies the condition, the licence will be granted. According to the writ petitioner, the application of the sixth respondent should not be considered - (a) because it is in violation of the Competition Act; and (b) because one family will monopolize the electronic world for ever. Only these two grounds are cited in the affidavit filed in support of the writ petition. We have already dealt with the objection relating to the Competition Act. If the concentration of wealth in one family is a relevant condition to be considered by the authority which is granting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween the 6th respondent and M/s. Sun TV Private Limited and this would not appear to be hit by the existing DTH guidelines. The application is under further processing and a final decision is yet to be taken." It is stated in the counter and was repeated by the learned Additional Solicitor General that the processing of the application of the sixth respondent has not reached finality. 17. The learned counsel for the petitioner relied on the following paragraph of the judgment in Guruvayoor Devaswom Managing Committee's case (supra), where the Supreme Court indicated in what instances writs of mandamus could be issued: "The Court steps in by mandamus when the State fails to perform its duty. It shall also step in when the discretion is exercised but the same has not been done legally and validly. It steps in by way of a judicial review over the orders passed. Existence of an alternative remedy albeit is no bar to exercise jurisdiction under Article 226 of the Constitution of India but ordinarily it will not do so unless it is found that an order has been passed wholly without jurisdiction or contradictory to the constitutional or statutory provisions or where an order has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. . . . A person may also have a cause of action by reason of action or inaction on the part of the State or a statutory authority. An appropriate order is required to be passed or a direction is required to be issued by the High Court. In some cases, a person may feel aggrieved in his individual capacity, but the public at large may not. It is trite where a segment of the pubic is not interested in a case, a Public Interest Litigation would not ordinarily be entertained". In Chief Forest Conservator (Wild Life) v. Nisar Khan 2003 (4) SCC 595, the question related to the grant of licence under the Wild Life (Protection) Act, 1972. The Supreme Court spelt out the scope of writ jurisdiction in matters such as these. It was held therein that when the licensing authority arrives at a finding of fact having regard to the past transactions of a licensee that it cannot carry on any business by reason of breeding of captive birds but necessarily therefore he is to hunt, he would be justified in refusing to grant a licence in terms of the provisions of the Act. Unless the provisions of the Act and the Rules are construed strictly and in the manner stipulated, the very purpose for which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent. The sixth respondent is the outfit of the family concerned of the fifth respondent". But, it is seen that the fifth respondent is only the Secretary to the Government of India, Ministry of Information Technology. According to the writ petitioner, "It is beyond belief that the Cabinet colleagues of the very fifth respondent will be impartial in dealing with the application of the sixth respondent". Then again, it is stated, "No one will believe that the fifth respondent has no personal interest in the affairs of the sixth respondent". Therefore, it would appear that petitioner is alleging bias and imputing mala fides to the Department as a whole, since the fifth respondent is the Secretary to the Government and not the Union Minister who is alleged to be the reason for bias. 21. In Dattaraj Nathuji Thaware's case (supra) Head Note 'B' is relevant and it is extracted hereunder: "Constitution of India, Articles 32 and 226.-PIL-Meaning, nature and scope of - PILs to be admitted with great care - Considerations and factors involved therein - Duty of Courts - For redressal only of genuine public wrongs or injury - Not for redressal of private, publicity-oriented or politica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvisable to depend on the good sense of the individuals, however high-placed they may be. It is all the more improper and undesirable to expose the precious rights like the rights of life, liberty and property to the vagaries of the individual whim and fancies. It is trite to say that individuals are not and do not become wise because they occupy high seats of power, and good sense, circumspection and fairness does not go with the posts, however high they may be. There is only a complaisant presumption that those who occupy high posts have a high sense of responsibility. The presumption is neither legal nor rational. History does not support it and reality does not warrant it. In particular, in a society pledged to uphold the rule of law, it would be both unwise and impolitic to leave any aspect of its life to be governed by discretion when it can conveniently and easily be covered by the rule of law." (p. 173) But, as observed by the Supreme Court in Indian Railway Construction Co. Ltd.'s case (supra), allegations of mala fides are often more easily made then proved and Courts would be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the sixth respondent in the Cabinet as the Union Minister justifies his apprehension of bias. Where the proximity of the Secretary was considered as sufficient to influence the Chairman of the Selection Committee, in Ashutosh Kumar Srivastava's case (supra), the Supreme Court held that if this kind of approach is allowed, no administration can be safe. In any event, the licence has not yet been granted. The case of possible injury that may arise out of bias, was accepted in the Chief Election Commissioner's case supra, but no such injury exists in this case nor has the petitioner pleaded it. 25. Learned counsel also referred to judgment in K. Chelliah's case (supra), where the learned Judge has indicated that bias is not easy to prove. The other two judgments referred to where the element of bias had vitiated the action are J. Mohapatra & Co.'s case (supra), wherein the members of the Committee set up for selecting books for educational institutions were themselves authors of the books which were to be considered for selection. In Shivajirao Nilangekar Patil's case (supra), the allegation was that the daughter of a Chief Minister who had failed thrice before was made to pass by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion of community interest or public interest and quia timet injunctions was referred to. It is stated therein, "Canadian Courts tend to issue (quia timet) injunctions against proposed or ongoing activities if they pose a real and substantial risk or harm, if the harm would be irreparable and if a monetary payment could not adequately compensate for the harm. The plaintiff who sues the defendant (person sued) must demonstrate that his apprehension is well founded and reasonable. Unfounded apprehension does not justify an injunction". The petitioner herein has not made out any such harm or any such damage that is so imminent that if remedy is delayed the damage suffered will be irreparable. 28. In Kuldip Singh v. Subhash Chander Jain 2000 (4) SCC 50, the Supreme Court has explained the nature of quia timet action. The Supreme Court observed as follows: "6. A quia timet action is a bill in equity. It is an action preventive in nature and a specie of precautionary justice intended to prevent apprehended wrong or anticipated mischief and not to undo a wrong or mischief when it has already been done. In such an action, the Court, if convinced, may interfere by appointment of receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , no one can obtain a quia timet order by merely saying 'timeo'. He must aver and prove that what is going on is calculated to infringe his rights." There is no pleading in this case regarding the infringement of the petitioner's private right or even a public injury. The petitioner has not even shown what is the irreparable injury that will be caused if the application of the sixth respondent is considered. In the above decision, the Supreme Court has held that such an action is premature. Therefore, on this ground also, the writ petition has to be dismissed. 29. The other personal allegations made by the petitioner against indivi-dual persons in the affidavit filed in support of the writ petition are not dealt with since they are not relevant for deciding the dispute. Similarly, the process by which the licence is granted is also not dealt with since it is for the licensing authority to decide whether the applicants before it, including the sixth respondent, satisfy the conditions for the grant of licence before it grants the same. The petitioner has also made allegations that the sixth respondent is nothing but the same outfit of Sumangali Cable Vision (SCV) and has made refer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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