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CASE NO.: Appeal (civil)  3137 of 1999

PETITIONER: N.K. Prasada

RESPONDENT: Government of India and Ors.

DATE OF JUDGMENT: 12/04/2004

BENCH: CJI, S.B. Sinha & S.H. Kapadia.

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

       The appellant herein was respondent No. 8 in one of the  public interest litigations being No. 6240 of 1997 which was  disposed of along with another public interest litigation  being No. 5717 of 1997 and Contempt Case No. 779 of 1997.

       The appellant herein has not questioned the correctness  or otherwise of the impugned judgment dated 6th July, 1998  passed by a Division Bench of the Andhra Pradesh High Court  in the aforementioned matters but only is concerned with  certain observations made therein as also imposition of a  sum of Rs. 20,000/- by way of costs.  These two public  interest litigations were filed successively by one B.  Kistaiah, said to be a former Member of Legislative Assembly  and the Writ Petition No. 6240 of 1997 by Digumarthi  Premchand, said to be a journalist.  In the said purported  public interest litigations alleged malfunctioning of the  Commissioner of Central Excise resulting in loss of several  crores of rupees as also purported dismantling of the  Special Investigating Team headed by the appellant herein  were in question.

       The writ petitioners contended that the said Special  Investigation Team was dismantled by the Commissioner-I  Central Excise & Customs, Hyderabad Commissionerate only  with a view to help the dishonest traders and to prevent the  cases relating to evasion of excise duty.  The appellant was  not initially a party therein but despite the same an order  of transfer passed against him and others dated 10.3.1997  bearing Establishment Order (G.O.) No. 43/97 was questioned  in the said writ petition.  The cause of action for filing  writ petition No. 5717 of 1997 was also said to be issuance  of the said order of transfer dated 10.3.1997.  A Division  Bench of the High Court by an order dated 21.03.1997  directed the appellant (although thence he was not a party)  not to hand over any record in any pending case which was or  is under his investigation to M.V.S. Chowdary till  26.3.1997.  The respondents were also purported to be  relying on or on the basis of the additional affidavit  directed by the High Court to file their counter-affidavits  and produce the records relating to setting up of the  Special Investigation Team and its disbanding.  The writ  petitioner, however, instructed his counsel to withdraw the  writ petition stating:

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"My conscience, however, does not  permit me to proceed with the said writ  petition. I am also uncertain of the  effect of the matter will have and I am  constrained, for my personal reasons,  and for my personal safety to seek the  permission of the Hon’ble Court to  withdraw the writ petition."

       When the said matter was pending, another writ petition  marked as W.P. No. 6240 of 1997 came to be filed by  Digumarthi Premchand wherein the averments made, except for  one paragraph were verbatim the same of those contained in  writ petition bearing No. 5717 of 1997.  In the said writ  petition also the appellant herein was impleaded as a party  and the main attack therein was directed against the said  proceedings dated 10.03.1997 transferring the appellant.

       It appears that the Director General, NACEN and Chief  Commissioner, Hyderabad by an order dated 08.05.1997  directed that the appellant should be taken back on the  rolls of Hyderabad Commissionerate and furthermore should be  handed over the cases for investigation.  A further  direction was made to examine how his period of absence can  be regularised.  The writ petitioner filed an application  dated 22.5.1997 for implementation of the said proceedings  which was marked as WPMP (SR) No. 55758 of 1997.   Surprisingly enough, the said application was purported to  have been directed to be placed for House Motion before a  Division Bench purported to be under the orders of the Chief  Justice of the Andhra Pradesh High Court which admittedly  was found to be wrong.  The appellant herein filed two  applications on the same day one, to implead him as one of  the respondents and the other to give effect to the said  proceedings dated 8.5.1997 issued by the Chief Commissioner,  Hyderabad.  Despite the fact that the Registry of the High  Court was not supposed to receive the said applications  without the order of the Hon’ble Chief Justice, the same was  done on a wrong premise that a direction in that behalf had  been issued by the Chief Justice.  Interestingly, the writ  petitioner informed the Registrar (Judicial) that he would  not be insisting for House Motion as his advocate would not  be available but keeping in view the purported order passed  by the Chief Justice, a Bench was constituted in relation  whereto admittedly no direction had been issued by the Chief  Justice. It also stands admitted that even no direction had  been issued to number the said applications, whence the  application filed by the appellants were placed before the  Bench.   

The Registry submitted several reports before the  Court, on having been asked to do so, which reveal as to how  a fraud was practised upon the court presumably in collusion  with some officers of the Registry.  A contempt proceeding  was initiated against Digumarthi Premchand relying or on the  basis of the said reports but as the writ petitioner had  been evading service of notice, not only non-bailable  warrant was issued in absence of any correct address of writ  petitioner having been furnished; the CBI was also asked to  cause to make a detailed enquiry/investigation into the  following issues:

"(a) whether there is any person by  name Digumarthi Premchand, Journalist,

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r/o. Narayanaguda and if such a person  is available, cause his production  before this Court on or before 19-9- 1997, (b) if there is no such person by  name Digumarthi Premchand, the sixth  respondent shall investigate and find  out as to under what circumstances this  writ petition came into existence and  the person or persons responsible for  filing the same."

       Upon making an enquiry into the matter, a report was  filed by the CBI on 19.9.1997 before the division bench of  the High Court.  The appellant herein thereafter appeared  before the Court on 17.10.1997.  The CBI submitted a final  report stating that a chargesheet under Section 120-B read  with Sections 199, 200, 201, 416, 465 and 471 of Indian  Penal Code and Sections 109 thereof had been filed by it  against the writ petitioner, the appellant herein and one M.  Kali Prasada who is his close relative.  The material  portions of the said report read as under:

"On 17-3-1997 Sri N.K. Prasada met one  Sri B. Kistaiah an Ex.MLA who had got  close association with Sri B.P. Agarwal  Textile Mill owner of Shadnagar with  whom the said Sri N.K. Prasada also had  acquaintance. On the same day Sri  Kistaiah filed a WP No.5717 of 1997  alleging irregularities in Customs and  Central Excise, Hyderabad and also filed  several documents along with writ  petition which were supplied by N.K.  Prasada.  Not contended with filing of the above  writ petition Sri N.K. Prasada A2 also  got filed another WP No.6240 of 1997  through Sri S. Ramachandra Rao, senior  Advocate and Seshagiri Rao, Advocate.  Since, the subject-matter of both the  writ petitions are one and the same, the  Hon’ble High Court posted the matter for  hearing before Hon’ble Justice V.  Bhaskar Rao and Hon’ble Justice Sri B.  Sudarshan Reddy.  Sri Padmanabham, clerk of Sri  Ramachander Rao informed that on 22-5- 1997 Sri N.K. Prasada came to the office  of Sri Ramachander Rao and asked him for  the house motion petition of D.  Premchand and Sri Padmanabham showed him  the bundle from which Sri N.K. Prasada  took out the petition informing him that  he is taking the house motion petition  of D. Premchand.  Sri N.K. Prasada, (A2) has obtained this  writ petition back from the Registrar of  the High Court since some objections  were raised by the Registrar and Sri  N.K. Prasada also signed in return  register maintained by the Registrar  office in token of receipt of the  petition back.  The register as well as specimen  signatures of Sri N.K. Prasada have been

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referred to GEQD who opined that the  signatures on the register pertains to  Sri N.K. Prasada.  The investigation disclosed that the  origin of all Phonogram was from public  telephone booth bearing No. 243 980,  located at Basheerbagh and other PCO  telephone No.332917 located at  Erramanzil Colony.  Investigpation disclosed that on the day  of filing of WP No.6240 of 1997 i.e.,  26-3-1997 Sri Kali Prasada was taken to  the office of Sri S. Ramachander Rao by  Sri N.K. Pramda and Sri B.P. Agarwal.  Investigation also disclosed that on 26- 3-1997, Sri D. Premchand was present at  Srikakulam and he has not come to  Hyderabad nor he signed the affidavit  enclose with the WP No.6240 of 1997.  The GEQD has opined that the signature  on WP No.6240 of 1997 was not that of  Sri D. Premchand. But Sri D. Premchand  with a fraudulent and dishonest  intention filed an affidavit before the  Hon’ble High Court on 7-11-1997 stating  that he himself has signed the affidavit  enclosed with the WP No.6240 of 1997 and  that he himself filed the petition.  Sri S. Ramachander Rao, Sr. Advocate and  Sri Seshagiri Rao, Advocate who filed  the WP No.6240 of 1997 have also stated  in their statements recorded under  Section 164 Cr.PC before the II MM  Hyderabad that the person Sri D.  Premchand who had surrendered before  Hon’ble High Court on 19-9-1997 was not  the person who came along with Sri N.K.  Prasada and who signed the WP No.6240 of  1997 on 26-3-1997.  The document filed along with WP No.5717  of 1997 of Sri B. Kistaiah, Ex.MLA,  Shadnagar were supplied by Sri N.K.  Prasada has stated by Sri K.R. Prabhakar  Rao, Advocate for Sri B. Kistaiah, Sri  B. Kistaiah also stated before the  Hon’ble High Court that Sri N.K. Prasada  requested him not to withdraw the  petition.  By the aforesaid acts all the accused  entered into criminal conspiracy and  fraudulently filed WP No.6240 of 1997  and in which process A3 impersonated A1  under the active connivance of A2 and  thereby played fraud on the higher  judiciary. A1 has falsely stated through  an affidavit before the Hon’ble High  Court of A.P. on 7-11-1997 that he  himself filed WP No.6240 of 1997.  Thus, all the three accused i.e., A1 to  A3 committed offences punishable under  Section 120-B read with 199, 200, 201,  419, 465 and 471 IPC and Section 109  IPC.  It is therefore prayed that the Hon’ble  Court may take cognizance of the case

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against the accused and they may be  dealt with according to law.  Hence the charge-sheet."  

       The CBI was also directed by the High Court by an order  dated 19.9.1997 to make investigation into the question as  to:

"(1) whether the petitioner, himself,  got the information required for the  purpose of filing this writ petition and  if so, who are the persons from whom the  petitioner had gathered the information.  It is also just and necessary to find  out as to (2) how and on what basis the  averments in the affidavit filed in  support of the writ petition are made  and the persons responsible for making  or engineering the averments made in the  affidavit."

       A direction was also issued to find out as to under  what circumstances the writ petitioner proposed to withdraw  the writ petition as also who were the persons redsponsible  for getting the letter of withdrawal filed by the writ  petitioner.  The CBI in its report inter alia opined that  the appellant herein was the person working behind the  scene.  Interestingly, during the said investigation the  appellant could not be traced out.  The aforementioned B.  Kistaiah (writ petitioner in W.P. No.6240 of 1997) made a  solemn statement before the High Court wherein also he named  the appellant herein as a person who was responsible for  getting the writ petition filed through the advocate  although he did not know him personally.  He further alleged  that the requisite documents for filing the writ petition  have been handed over to the learned Advocate by the  appellant.  

The High Court upon analysis of the pleadings and other  materials placed before it noticed:

"On analysis of the pleadings before us  and various reports filed by the CBI and  the sworn statement of the petitioner in  WP No.5717 of 1997 would lead to an  irresistable conclusion that both these  writ petitions are engineered and  brought into existence by the 8th  respondent herein with an oblique motive  of avoiding an order of simple transfer  dated 8-5-1997. It is the 8th respondent  who has acted from behind the scene and  had set up the petitioner to file the  writ petition making reckless and  unfounded allegations against the  respondents. All this has been done only  to avoid an order of simple transfer. To  what extent the 8th respondent can stoop  down is amply demonstrated from the  contents of his own affidavit filed into  this Court. In one of his counter- affidavits to the report of the CBI  dated 17-10-1997 the 8th respondent  inter alia states that "on the day Sri  B.P. Agarwal introduced me to the

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advocate but I had met Sri S.  Ramachandra Rao later on my own to seek  advice whether I should file in CAT or  in High Court. As per his directions, I  had given him relevant papers which he  said he would examine and advise me  accordingly. However, without my  knowledge or authorisation he used the  documents to file a Public Interest  Litigation. I came to know much later  that the Hon’ble High Court has issued  certain directions on the PIL filed by  B. Kistaiah, At no point of time did I  influence or induce anyone to file a  petition on my behalf." It is further  stated that "the role of Sri S.  Ramachander Rao as a senior Advocate  looks very dubious in this context. This  is apart from misusing the documents  given by me to him in good faith for  filing my own petition. This is a clear  case of breach of client’s  confidentiality and interest." It is now  clear that it is the 8th respondent who  made available the entire material filed  into Court as material papers in these  writ petitions. Obviously, the writ  petition is drafted on the basis of the  material supplied by the 8th respondent.  It would be totally altogether a  different matter as to whether the  affidavit is signed by the petitioner or  by somebody else at the instance of  Respondent No.8. But the feet remains  that material has been admittedly made  available by the 8th respondent,  undoubtedly he is the king pin in the  whole drama and operating from behind  the scene."  

       Before the High Court Shri E. Seshagiri Rao, advocate  who had filed the writ petition affirmed an affidavit  wherefrom it transpired that the writ petition had been  filed from the Office of Shri S. Ramchander Rao, a senior  advocate purported to be on the instructions of one Shri  B.P. Agarwal, the appellant herein and some other persons.   

       The High Court noticed gross abuse of the process of  the Court in the manner of filing the aforementioned two  writ petitions said to be in the nature of public interest  litigations.  The High Court also went into the merit of the  matter and arrived at a finding that the writ petitions were  filed at the instance of the appellant herein.  The High  Court while finding the said writ petitions to be without  any merit opined that no relief can be granted to the writ  petitioner.  The High Court also expressed its unhappiness  over the role of the lawyers.  The High Court although  noticed that the writ petitioner in writ petition No. 5717  of 1997 appeared in person and wanted to withdraw the writ  petition but did not absolve him of his responsibility in  the matter in filing the writ petition at the instance of  the appellant herein.  However, it took a lenient view and  dismissed the writ petition without awarding any cost  against him.  The High Court, however, administered severe

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warning to him to be careful in future and not to play any  game with judicial process.   

       So far as writ petition No. 6240 of 1997 is concerned,  the High Court held:

"So far as WP No.6240 of 1997 is  concerned, we have already observed that  the petitioner, as well as the 8th  respondent are guilty of abuse of the  judicial process in the name of public  interest litigation. They have put the  device of public interest litigation to  naked abuse. The weapon invented by the  Apex Court with a noble cause intended  to serve the deprived sections of the  Society pressed into operation for  destructive purpose. The streams of  justice are polluted by their conduct.  We, under those circumstances, consider  it appropriate to dismiss the writ  petition - Writ Petition No.6240 of 1997  with exemplary costs quantified at  Rs.25,000/-(Rupees twenty five thousand  only); out of which a sum of Rs.5,000.00  (Rupees five thousand only) shall be  paid by the petitioner, Digumarthi  Premchand and the remaining sum of  Rs.20,000/- (Rupees twenty thousand  only) shall be paid by the respondent  No.8, N.K. Prasada. The amount shall be  deposited by the petitioner and the 8th  respondent with A.P. State Legal  Services Authority."

       In the contempt proceedings the writ petitioner was  found guilty and punishment till the rising of the court was  awarded to the writ petitioner.  The High Court, however,  keeping in view the pendency of the criminal case observed:

"However, we would like to make very  clear that we have not expressed any  opinion whatsoever with regard to the  merits of the prosecution and the  charge-sheet filed by the CBI against  the petitioner as well as 8th respondent  and one Kali Prasada. The trial Court  shall proceed with the trial  uninfluenced by any of the observations  made by us in this order. We have not  expressed any opinion about any of the  aspects and merits of the allegations  levelled against the petitioner and the  8th respondent. The observations, if  any, made by this Court while referring  to the reports of the CBI and the  charge-sheet are confined for the  purpose of disposal of this writ  petitions and the contempt case. The  trial Court shall dispose of the  criminal case uninfluenced by any  observation whatsoever made in this  case."  

       Contentions of Mr. Amarendra Sharan, learned senior

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counsel appearing on behalf of the appellant are two-fold.   Firstly he drew our attention to a First Information Report  purported to have been lodged by him against one T.N. Rao,  Dy. S.P. CBI Hyderabad and urged that as the said officer  had himself been facing a criminal charge of asking for  bribe, his report filed before the High Court should not  have been relied upon.  The learned counsel would secondly  urge that although the appellant was impleaded as a party,  no opportunity of hearing having been granted to him the  impugned judgment cannot be sustained.

       Mr. Anoop G. Choudhary, learned senior counsel  appearing on behalf of the respondents, on the other hand,  would submit that the High Court itself could have been  moved for expunction of the remarks by the appellant herein.   It was pointed out that the appellant took part in the CBI  enquiry, filed an application for reqularisation of leave  and keeping in view the report submitted by the Central  Bureau of Investigation, his involvement in getting the writ  petition filed is apparent on the face of the record.

       The writ petitioner who had been arrayed as respondent  No. 8 in the Special Leave application has filed an  affidavit.  He in his affidavit does not deny or dispute the  findings of the High Court.  He does not say that the writ  petition was not filed at the instance of the appellant  herein.  

It is not in dispute that although the appellant was  not a party in the writ petition the order of transfer  passed against him dated 10.3.1997 was the subject matter  thereof and an interim order had been passed by the Division  Bench of the High Court.  The fact that he derived benefit  of the said interim order is not denied or disputed.  The  fact that he filed two applications, one for impleading  himself as a party in the pending writ proceeding and  another for an interim order purported to be for  implementing the order of the Chief Commissioner dated  08.05.1997 also stands admitted.

       We may recall that the original writ petitioner also  filed a similar application.  The High Court arrived at its  conclusion not only on the basis of the report of the  Central Bureau of Investigation which, inter alia, contains  the statements of the clerk of Shri S. Ramchandra Rao,  Advocate and his involvement in filing the application and  taking the same back from the Registry which is borne out of  the return register maintained by the Registry but also the  detailed reports submitted by the Registrar (Judicial)  before the High Court from time to time as also other  affidavits, sworn statements and other materials brought on  record.  

As the finding of the High Court is to the effect that  the appellant herein was the king pin of the entire episode  and had engineered the entire game with a view to getting  his order of transfer stayed is prima facie in nature, we do  not find any reason to interfere therewith.

       The writ petition and the contempt proceedings pending  before the High Court were disposed of on the basis of the  materials on record.  The materials not only included  affidavits of the parties as also that of the appellant but  also the sworn statements of the writ petitioner and the  Advocate appearing for the writ petitioner.  In view of the

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fact that even the learned advocate appearing on behalf of  the writ petitioner categorically stated that at the time of  drawing of the writ petition the appellant was present, no  fault with the findings of the High Court can be found out  if reliance had been placed thereupon.  The appellant had  intervened in the writ applications as far back as on  22.5.1997.  He, it will bear repetition to state, filed an  application for grant of an interim relief. The same was  pending and, thus, there cannot be any doubt whatsoever,  having regard to the fact that the Central Bureau of  Investigation was making enquiry;  the appellant herein must  be held to have been aware thereabout. His two applications  were also pending and presumably pressed (as there is  nothing on record to show that at any point of time, he  intended to withdraw the same), and thus a presumption can  be drawn to the effect that he/ his advocate had been  keeping a watch over the entire proceeding. Despite the same  at no point of time the appellant wanted to cross-examine  any witness.  He never brought the fact to the notice of the  court that a criminal case had also been filed against the  Dy. S.P. of the C.B.I. allegedly for taking bribe.  He  allowed the proceedings before the High Court to go on.  He  sat on the fence.  He, as has been noticed by the High  Court, even could not be traced out for some time.   

Furthermore, he appeared to be on leave during the  following period: "1. 83 days EL from 3-4-1997 to 24-6-1997.  2. 138 days EL from 26-6-1997 to 10-11-1997.  3. 15 days EL from 11-11-1997 to 25-11-1997.  4. 115 days Half-pay leave from 26-11-1997 to 29- 4-1998.  5. 32 days extraordinary leave from 30-4-1998 to  31-5-1998."

       He, as noticed hereinbefore, filed application for  regularisation of the said period of leave pursuant to or in  furtherance of the observations made by the Chief  Commissioner, Hyderabad in his order dated 08.05.1997.   

       The principles of natural justice, it is well-settled,  cannot be put into a strait-jacket formula.  Its application  will depend upon the facts and circumstances of each case.   It is also well-settled that if a party after having proper  notice chose not to appear, he a later stage cannot be  permitted to say that he had not been given a fair  opportunity of hearing.  The question had been considered by  a Bench of this Court in Sohan Lal Gupta (Dead) through LRs.  and Others Vs. Asha Devi Gupta (Smt.) and Others [(2003) 7  SCC 492] of which two of us (V.N. Khare, CJI and Sinha, J.)  are parties wherein upon noticing a large number of  decisions it was held:

"29.The principles of natural justice,  it is trite,  cannot be put in a  straitjacket formula.  In a given case  the party should not only  be required  to show that he did not have a proper  notice resulting in violation of  principles of natural justice but also  to show that he was seriously prejudiced  thereby..."    

       The principles of natural justice, it is well-settled,

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must not be stretched too far.      

       In any event, it is not a case where this Court should  exercise its discretion in favour of the appellant.  It is  trite that in a given case, the Court may refuse to exercise  its discretionary jurisdiction under Article 136 of the  Constituiton.  (See Chandra Singh and Others Vs. State of  Rajasthan and Another [(2003) 6 SCC 545] and State of Punjab  & Ors. Vs. Savinderjit Kaur [JT 2004 (3) SC 470]  

       The scope of public interest litigation has recently  been noticed by this Court in Guruvayoor Devaswom Managing  Committee and Another vs. C.K. Rajan and others [(2003) 7  SCC 546] holding :

"...Statutory functions are assigned to  the State by the Legislature and not by  the Court.  The Courts while exercising  its jurisdiction ordinarily must remind  itself about the doctrine of separation  of powers which, however, although does  not mean that the Court shall not step- in in any circumstance whatsoever but  the Court while exercising its power  must also remind itself about the rule  of self-restraint. The Courts, as  indicated hereinbefore, ordinarily is  reluctant to assume the functions of the  statutory functionaries.  It allows them  to perform their duties at the first  instance.   

       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 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 passed  without complying with the principles of  natural justice. (See Whirlpool  Corporation vs. Registrar of Trade  Marks, Mumbai and Others (1998) 8 SCC  1).

       It is trite that only because  floodgates of cases will be opened, by  itself may not be no ground to close the  doors of courts of justice.  The doors  of the courts must be kept open but the  Court cannot shut its eyes to the ground  realities while entertaining a public  interest litigation.

       Exercise of self-restraint, thus,  should be adhered to, subject of course

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to, just exceptions."             (See also Maharashtra State Board of  Secondary Education Vs. Paritosh Bhupesh  Kumarsheth etc., AIR 1984 SC 1543.)

       The said decision has been followed in Chairman & MD,  BPL Ltd. vs. S.P. Gururaja and Others  [(2003) 8 SCC 567],  wherein it was noticed :

"Dawn Oliver in Constitutional Reform  in the UK under the heading ’The  Courts and Theories of Democracy,  Citizenship, and Good Governance’ at  page 105 states:

    "However, this concept of  democracy as rights-based with  limited governmental power, and in  particular of the role of the  courts in a democracy, carries high  risks for the judges - and for the  public.  Courts may interfere  inadvisedly in public  administration.  The case of  Bromley London Borough Council v.  Greater London Council ([1983] 1 AC  768, HL) is a classic example.  The  House of Lords quashed the GLC  cheap fares policy as being based  on a misreading of the statutory  provisions, but were accused of  themselves misunderstanding  transport policy in so doing.  The  courts are not experts in policy  and public administration - hence  Jowell’s point that the courts  should not step beyond their  institutional capacity  (Jowell,2000).  Acceptance of this  approach is reflected in the  judgments of Laws LJ in  International Transport Roth GmbH  Vs. Secretary of State for the Home  Department ([2002] EWCA Civ 158,  [2002] 3 WLR 344) and of Lord Nimmo  Smith in Adams v. Lord Advocate  (Court of Session, Times, 8 August  2002) in which a distinction was  drawn between areas where the  subject matter lies within the  expertise of the courts (for  instance, criminal justice,  including sentencing and detention  of individuals) and those which  were more appropriate for decision  by democratically elected and  accountable bodies.  If the courts  step outside the area of their  institutional competence,  government may react by getting  Parliament to legislate to oust the  jurisdiction of the courts  altogether.  Such a step would

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undermine the rule of law.   Government and public opinion may  come to question the legitimacy of  the judges exercising judicial  review against Ministers and thus  undermine the authority of the  courts and the rule of law."

        In Onkarlal Bajaj and Others Vs. Union of India and  Another [(2003) 2 SCC 673] it was observed: "The expression ’public interest’ or  ’probity in governance’, cannot be put  in a straitjacket. ’Public interest’  takes into its fold several factors.  There cannot be any hard and fast rule  to determine what is public interest.  The circumstances in each case would  determine whether Government action was  taken is in public interest or was taken  to uphold probity in governance.  The role model for governance and  decision taken thereof should manifest  equity, fair play and justice. The  cardinal principle of governance in a  civilized society based on rule of law  not only has to base on transparency but  must create an impression that the  decision-making was motivated on the  consideration of probity. The Government  has to rise above the nexus of vested  interests and nepotism and eschew window  dressing. The act of governance has to  withstand the test of judiciousness and  impartiality and avoid arbitrary or  capricious actions. Therefore, the  principle of governance has to be tested  on the touchstone of justice, equity and  fair play and if the decision is not  based on justice, equity and fair play  and has taken into consideration other  matters, though on the face of it, the  decision may look legitimate but as a  matter of fact, the reasons are not based  on values but to achieve popular  accolade, that decision cannot be allowed  to operate."

       We are pained to see how the forum of public interest  litigation is being abused.  This Court recently had also  the occasion to notice the same.  (See Ashok Kumar Pandey  Vs. State of West Bengal, 2003 AIR SCW 6105 and Dr. B. Singh  Vs. Union of India and Others, 2004 AIR SCW 1494).

       For the reasons aforementioned, we do not find any  merit in this appeal which is dismissed accordingly.  No  costs.