Pasayat, J.@mdashThese two writ applications are interlinked and are disposed of by this judgment which shall govern each one of them. Writ application (OJC No. 10871 of 1996) was registered on the basis of a letter addressed to the Hon''ble the Chief Justice and it was stated to be in public interest. The other one is by one Basantinath Dutta. The controversy revolves round shifting of a liquorshop from its earlier site to another place.
2. Factual position is almost undisputed, and in a nutshell is us follows :
State Government intended to grant exclusive privilege of possession and retail sate of foreign liquor at various localities in the districts of Puri and accordingly objections were invited from persons residing within the local area specified. Present controversy relates to two foreign liquor shops, namely. Khurda No. 1, and Khurda No. 2. Basantinath Dutta petitioner in OJC No. 13341 of 1996 has been granted licence for retail sale of potable foreign liquor in respect of Khurda No. 2 shop, Raghunath Patnaik is the licensee in respect of Khurda No. 1 shop. The local areas specified for Khurda No. 1 and Khurda No. 2 are as follows :
Khurda No. 1 Existing site at eastern portion of Khurda bus stand.
Khurda No. 2 Existing site at western portion of Khurda bus stand.
Licences of both Basantinath and Raghunath have been renewed for the period from 1-11-1996 to 31-3-1997, both days inclusive, on payment of consideration money. Raghunath applied for permission to shift the shop from the existing premises to the house of one Shri Bibhuti Patnaik. The Superintendent of Excise, Khurda permitted shifting on the basis of orders passed by the Collector, Khurda, Basantinath Dutta objected to it spying that the Collector has no power to permit shifting and if any permission is to be granted, same has to be by orders of the Commissioner of Excise. In any event, his business would he adversely affected. The villagers of Jajarsingh, who have filed OJC No. 10871 of 1996, have raised dispute that the shifting would affect law and order situation, and peaceful traffic condition of the locality would be disturbed. It was stated that the proposed site to which Raghunath wanted to shift is the house of one Shri Surendra Mohan Patnaik, and situates in a peaceful area having official and residential quarters of the Additional District Judge. Civil Judges of Khurda Court. Khurda hospital, B.T.B. High School. Sanskrit Mahavidyalay, D.T.H.T. Practising U.G.M.E. School, Saraswati Shishu Mandir, Monalisu English Medium School, Saraswati Temple, Hingulal Temple and Satsang Vihar etc. Shifting would not be according to them, against public interest. While Basantinath has raised the point of jurisdiction to assail the permission granting shifting of the shop. Villagers of Jajarsingh have indicated public interest.
3. Stand of Raghunath on the other hand is that the place to which the shop was shifted would hardly be at a distance of 100 yards from the earlier site, and in no way would affect the business of Basaminath. The villagers have been set up by Basantinath and if they did not object to location of Busantinath''s shop which was hardly at a distance of 25 yards from the earlier site, objection to location of new shop al the new site is clearly mala fide. Learned counsel for State submitted that the Collector has exercised his discretion and there is nothing illicit in his decision to allow shifting. In any event, the matter was sent for concurrence of the Commissioner of Excise, and in hot haste writ application has been filed by Basantinath.
4. We shall first deal with the application registered as writ application filed by the villagers. We find it strange that they have objected to the shifting of the shop which is undisputedly at a very short distance from its earlier location. If serenity of the locality was to be affected by shifting, it is unfathomable as to how existance of two shops in the nearby vicinity have not done it.
5. Article 47 of the Constitution of India forms part of Chapter relating to directive Principles. It postulates that the State shall endevaour to bring about prohibition. There can be no semblance of public interest when several persons object to the shifting of location of a shop by a person, while espousing the cause of another. The writ application is certainly mala fide, and a private dispute is intended to be given a colour of public interest dispute. Factually also the correct position has not been indicated. The shop was not intended to be shifted to the house of one Shri Surendra Mohan Patnaik as alleged.
6. Before we grapple with the actual problems, we feel it necessary to keep the records straight so far as public interest aspects are concerned. Public interest litigation which has now come to occupy an important field in the administration of law should not he public interest litigation or private interest litigation. There must be real and genuine public interest involved in the litigation, and it cannot he invoked by a person or a body of persons to further his or their personal causes or satisfy him or his personal grudge and enmity. The Courts of justice should not he allowed to he polluted by unscrupulous litigants by resorting to the extraordinary jurisdiction. A person acting bona fide and having sufficient interest in the proceeding of public interest litigation wilt alone have a locus standi and can approach the Court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, hut not for personal gain or private profit or political motive or any oblique consideration. These aspects were highlighted by the Apex Court in
Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful vail of public interest any ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering social justice to the citizens. The attractive brand name of ''public interest litigation'' should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. Court must be careful to see that a member of public, who approaches the Court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The Court must not allow its process to be abused for oblique considerations. They indulge in the pasttime of meddling with the judicial process either by force of habit or from improper motives. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busy bodies deserve to be thrown out by rejection at the threshold.
7. The council for Public Interest Law set up by the Ford Foundation in U.S.A. defined the Public Interest Litigation in its report of Public Interest Law. U.S.A.. 1976 as follows :
"Public Interest Law is the name that has recently been given to efforts provide legal representation to previously unrepresented groups and interests. Such efforts have been undertaken in the recognition that ordinary market place 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, environmentalities consumers, recial and othenic minorities, and others."
The Court has to he satisfied about (a) the credentials of the applicant: (b) the prima facie correctness of nature of information given by him; (c) the intention being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike a balance between two conflicting interests : (a) Nobody should be allowed to indulge in wild and reck less allegations be smirching the character of others: and (b) avoidance of public mischief and to avoid publicly mischievous executive actions. In such cases, however, the Court cannot afford to he liberal. It has to be extremely careful to sec that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature. The Court has to act ruthlessly while dealing with impostors and busy bodies, of meddlesome interlopers impersonating as public spirited holymen. They masqucrads as crusaders of justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect.
In ''public Interest Law'' edited by Jeromy Cooper and Rajeev Chavan (Paga 56) about the jurisdiction of the Court what was said was :
"Moreover, the judiciary have fairly limited powers at common law to extend the areas of public interest generally and in legal proceedings in particular. The responsibility for such extension and expansion has become a matter of political argument and debate and has fallen on the legislative branch of government, so that what social, economic, financial or other activities should be regarded as coming within the parameters of the public interest, and if so to w hat extent and the method of their regulation, are largely matters that have to be enacted by Parliament and statutory instruments."
8. Test litigation, representative actions. Fro Bono Publico. and like broadened forms of legal proceedings are in keeping with the current ascent on justic to common man and a necessary disincentive to those who wish to by-pass the real issues on merits by suspect reliance on peripheral, procedural shortcomings.
The writ application by the villagers (OJC No. 10871 of 1996) is frivolous and is dismissed.
9. Coming to the writ application filed by Basantinath, few facts which are relevant need to be indicated. On 17-9-1996 Rughunath filed an application for permission before the Collector. Khurda to shift his shop room as the existing shop room was badly damaged due to heavy rain. Basantinath filed an objection petition on 17-10-1996 staling that if such shilling is allowed, there will be a clash in business causing great financial loss to him. The Collector allowed the shifting under intimation to the Excise Commissioner. Accordingly, the Superintendent of Excise issued an order which is impugned in the writ application, forwarding a copy to the Excise Commissioner seeking his approval. Objection of some persons was forwarded by the Minister of Excise on 27-11-1996. It was indicated in the endorsement of the Excise minister that he had discussed the matter with residents of Khurda N.A.C. who wauled shifting not to be allowed. He desired that no final decision should be taken without discussion with him. But by that time, the Collector had already allowed the shifting. Superintendent of Excise on the basis of report of S.I. in charge noted that on 26-11-996 shilling had been done.
10. Orissa Excise Manual. Volume III contains the instructions issued by Board of Revenue (Revenue Commissioner), and deals with settlement of licences. Para 92 deals with the sites of the shops, and reads as follows :
"92. When an excise shop is settled, what is settled is the right of vend of a certain intoxicant in a certain locality. As a general rule it is not desirable that the sites of shops should be absolutely fixed in the sale proceedings, as the person who lakes settlement may find difficulty in coming to terms with the owner of specified premises. On the other hand, vagueness, which may mislead as to locality, is to be avoided. Ordinarily it will be sufficient to specify as the locality of vend, a village or certain tolas of a village, or in towns a street or certain streets. Where this is insufficient, the Collector should specify a particular distance from sonic fixed spot as the limit within which the shop may he opened or sonic particular tract, the boundaries of which should be so described as to leave no possible room for misapprehension. The locality must be fixed and notified in the sale notification published before the settlement is made. The sites of all shops are subjeet to the approval of the Collector. After the Commissioner of Excise has sanctioned settlement proposals, his approval-must be obtained before any change of site is sanctioned or required."
These instructions have been issued by the Member, Board of Revenue by exercise of powers conferred under S. 90 of the Bihar and Orissa Excise Act, 1915 (in short, ''the Act''). The Government of Orissa in Revenue and Excise Department has issued instructions vide No.1 EX-20/90 (Pt.II) 671/Ex. dt. 23-4-1990 wherein the details of sale notice have been indicated. Clause 2(vi) makes a provision for removal to any other approved site subject to approval of the Excise Commissioner.
Stand of the Stale Government is that approval of the Excise Commissioner was sought for and the matter was under consideration when the writ application came to be filed and the process of consideration came to be stalled.
11. In view of requirement of approval of the Commissioner of Excise the change of site is to be effective only with the approval of the Excise Commissioner. In the instant case, change has been permitted and a copy of office order allowing shifting was sent to the Commissioner of Excise for favour of information. Howe ever, his approval was sought for. The Commissioner has not passed final order in the matter. Before approval the shifting should not have been permitted to he effected. From the impugned office order vide Annexure 6 it appears that the Superintendent of Excise has not only directed shifting, but also has indicated that shifting was to be done under the supervision of local charge officer and compliance report was to be submitted for records so far as the actual date of shifting is concerned, The learned counsel for Raghunath submitted that in view of the order passed by the Superintendent of Excise physical shifting has been done. The situation is certainly piquant. In the peculiar circumstances, we direct the Commissioner of Excise to take a decision whether shifting is to be allowed. He shall pass necessary orders within ten days from today. In view of undisputed position that the shop has been shifted, status quo shall be maintained till disposal of the matter by the Commissioner. We make it clear that by directing maintenance of status quo we have not expressed any opinion on the merits.
The writ application (OJC No. 13341 of 1996) filed by Basantinath is disposed of accordingly. No costs.
S.N. Phukan, C.J.
12. I agree.
