Hazi Rais v. State Of U.P Through Secretary, Home Affairs, Lucknow And Others

Dr. B.S Chauhan, J.:— This writ petition has been filed seeking a direction to the respondent-State authorities to provide a gunner to the petitioner for his security.

2. Petitioner claims that he is an Editor of the newspaper “Khozi Hui Khabrein” and for that purpose, he travels and collects news from various places in Kanpur region. Due to outstanding activities of the petitioner's newspaper, several criminal midned persons are behind him and may hatch a plan to kill his entire family because the petitioner has always published the correct news against them. As the petitioner has been receiving continuous threats to his life and the lives of his family members as well as his property, he made an application to the State Government for providing a gunner for safety and security. Considering his need bona fide, in March, 2005, he was given a gunner at the cost of 25 percent, who continued with him from 24.3.2005 to 23.4.2005, i.e only for a period of one month. Again, the respondent-State authority asked the petitioner for deposit of a sum of Rs. 3,512/- for the future period and the security guard was given to him for further period of one month. However, it had been withdrawn in May, 2005. Since then, the petitioner has been making representations for the security and there has been reports by the State authorities, particularly the review committee at the district level that the petitioner may be provided a gunner at 100 percent cost but he has not been provided the gunner. The petitioner is entitled for a gunner free of cost as his life is in danger and he has been making representations for receiving continuous threat from anti-social elements and political persons against whom the petitioner had published news in his weekly newspaper and he is apprehending danger to his life as well as the lives of other family members. Hence, the present petition for providing a gunner at the cost of the State exchequer.

3. Learned Counsel for the petitioner has submitted that it is the responsibility of the State secure life of every citizen and when there is a threat perception to the petitioner and his family members, non-action on the part of the respondents is arbitrary, unreasonable and in contravention of the statutory provisions, therefore, the petition deserves to be allowed and the petitioner be provided security at the cost of public exchequer.

4. Shri C.K Rai, learned Standing Counsel appearing for the respondents has opposed the writ petition contending that till today, the petitioner has not lodged any F.I.R against any criminal or politician, nor he has made any statement in the petition as on what date he received the threat and who was the person who had threatened him and his family members. No incident has been reported or mentioned in the petition. Petitioner wants a gunner as a status symbol. Had there been any threat perception to him or to any of his family members, he could have definitely filed F.I.R against those persons. Therefore, petition does not require any interference and is liable to be dismissed.

5. We have considered the rival submissions made by learned Counsel for the parties and have perused the material on record.

6. This issue involved herein is no more res intergra as it has been considered by the Courts time and again. While entertaining Civil Misc. Application No. 63023 of 1998 and Civil Misc. Application No. 65460 of 1998 filed in Writ Petition No. 15440 of 1998, Pramod Tewari v. State of U.P, this Court passed a detailed interim order on 18.11.1998, wherein the following observations were made:—

“Undoubtedly, the need to provide security to every individual/citizen by the State is imperative. The State is under obligation to protect the life, liberty and property of its citizens and any apathy in the matter is to be ridiculed………

One cannot deny the stark reality that presently there is a threat environment in our country. Terrorism and violence has become the menace to sub serve political and narrow partisan objectives. The danger to the life and liberty of certain highly placed protected persons is sudden and grave. The present system of security arrangements for the protected persons has been supplemented by area security scheme by an efficient back up of a communication and transport system. The guidelines for security arrangements were prepared by the Central Government in December, 1985. These guidelines are being followed in the State of U.P Security to the protected persons is classified and provided under these guidelines. In order to ensure the optimum use of the available resources the individuals to be protected have been classified on the basis of threat perceptions………

Unhappy reality is that the demand for security is not as much for the personal security, but has ripened into a status symbol. It is enjoyed not as cathedral but as casino. Therefore, an onerous duty is cast on the high powered committed to review the security arrangements…………… in a most objective, bona fide and honest manner.”

7. The Court further observed that the security should be provided commensurate to the threat perception of the applicant.

8. The Government has issued various orders from time to time in this regard. The Government Order dated 25.4.2001 provides inter alia that ordinarily in place of a uniformed gunner, only a trained shadow armed with revolver/pistol will be provided. A uniformed gunner may only be provided to high officials, viz. Hon'ble Ministers, High Court Judges, M.Ps and M.L.As for special reasons.

9. For estimating the appropriateness and the risk to life for provision of a gunner/shadow, a committee headed by the District Magistrate wherein the S.S.P/S.P, Dy. S.P/Inspector L.I.U were to be members, was required to be constituted.

10. M.Ps and M.L.As are to be provided with one security personnel free of cost and when considered appropriate by the committee, an additional plain clothes security person may be provided on 25 percent payment. Retired M.Ps, M.L.As could be provided one security person at 10 percent cost when considered appropriate. State Chairpersons of Public Corporations, Chairpersons of Zila Panchayats, Nagar Pramukhs and Vice Chancellors may be provided with one security person each at 10 percent cost. (However, so far as Chairpersons of Zila Panchayats were concerned, the requirement for 10 percent cost for a security person has been done away with by a G.O dated 16.6.2004

11. For other persons according to need, on the recommendation of the district level committee, one security person could be provided at 100 percent costs. In cases of heinous crimes, pairokars and witnesses may be provided security subject to the approval and control of the committee. On the recommendation of the district level committee, the S.S.P/S.P may provide security for one month and the period can be further extended in one month blocks for a total period of three months. For any further extension of the period, the recommendation of the district level committee needs the approval of the State Government.

12. There has to be a monthly review by the District Magistrate and S.S.P/S.P and a three monthly review by the D.I.G of the region of the security provided to persons other than M.Ps, M.L.As, Ministers and High Court Judges and classified V.I.Ps The reports have to be submitted through the Director General of Police to the State Government.

13. A Division of this Court in M.A Khan Chaman v. State of U.P, decided on 1.4.2004, observed as under:

“There is no right of the petitioner to enjoy this privilege ad infinitum, it is regrettable that on flimsily grounds people exercise undue influence and manage to secure gunners and security at State expenses and at tax payers cost. In fact acquisition of a gunner has begun to be treated as a status symbol. This practice must be brought to an end.”

14. While deciding the Writ Petition No. 5520 of 2006, Gayur Hasan v. The State of U.P, vide judgment and order 25.5.2006, a Division Bench of this Court issued several directions including to review the policy of providing the gunner. In response to the said directions, a draft policy has been framed by the State authorities and published in newspapers amending the policy substantially. However, the final policy is yet to be framed.

15. In view of the above, the law can be summarized that security can be provided to an individual provided its need in fact and there is a threat perception to the life of the applicant or any of his family members. However, it should be decided objectively by the authority taking into account all pros and cons of the case and security should not be provided merely to enhance the status of the applicant. More so, the privilege cannot be enjoyed ad infinitum. The authority may review the threat perceptions from time to time. More so, as to whether the applicant is to pay the expenses of the gunner or not, would depend upon the recommendation of the Assessing/Reviewing Committee.

16. The instant case is required to be examined in view of the aforesaid judicial pronouncements made by this Court and the Government Orders issued from time to time. A person is entitled to get a security as per the said Government Orders, proportionate to threat perception. Threat perception is to be assessed on the basis of the information furnished by the applicant. In the instant case, very vague averments have been made. No specific incident has been mentioned on the basis of which it can be assumed that the petitioner had any threat to his life, whatsoever. Had there been any threat to his life or to any other member of his family from any person, he, definitely ought to have lodged an F.I.R against the said person, in any police station. Not a single person has been named who has hurled any threat to him or of his family members. If he had earlier been provided the security guard by mistake or by virtue of his connections in the State administration, that cannot be a presumption that he was having any threat perception.

17. It is settled proposition of law that it is the solemn duty of a party to plead the case and produce/adduce sufficient evidence to substantiate his submissions made in the petition and in case the pleadings are not complete, the Court is under no obligation to entertain the pleas. (Vide Bharat Singh v. State of Haryana;1 Larsen & Toubro Ltd. v. State of Gujarat;2 National Building Construction Corporation v. S. Raghunathan;3 Ram Narain Arora v. Asha Rani;4 Smt. Chitra Kumari v. Union of India;5 and State of U.P v. Chandra Prakash Pandey).6

18. In Atul Castings Ltd. v. Bawa Gurvachan Singh Singh,7 the Hon'ble Apex Court observed as under:—

“The findings in the absence of necessary pleadings and supporting evidence cannot be sustained in law.”

19. Similar view has been reiterated in Vithal N. Shetti v. Prakash N. Rudrakar.8

20. More so, the gunner had been withdrawn more than a year ago, and it has not been pointed out anywhere in the petition that after the withdrawal of the gunner, the petitioner has been assaulted by anybody or any threat has been given to him. Petition does not lie on such a vague averments.

21. In view of the above, we do not find any force in the petition and the petition is liable to be dismissed.

22. At this juncture, Shri R.D Singh, learned Counsel for the petitioner has submitted that he has not come before this Court to get the relief of providing a gunner rather his case was limited only to issuance of direction to decide his representation by the statutory authority.

23. A Division Bench of this Court, to which one of us (Dr. B.S Chauhan, J.) was a member, in Writ Petition No. 8642 of 2003, Rajendra Singh v. State of U.P, decided on 30.7.2003 has also held that without considering the merit of the case, the Court should not issue a direction to decide representation to any of the authorities for the reason that under the garb of getting the representation decided, the party may succeed in getting adjudicated a time barred claim, may be by an authority having no competence or by deciding the representation an order may be reviewed though remedy of review is not provided under the statute. In the said case, under the garb of getting the representation decided, the party wanted the authority under the U.P Motor Vehicles Taxation Act, 1997 to review its assessment.

24. In this connection reference may also be made to the decision of the Supreme Court in A.P.S.R.T.C v. G. Srinivas Reddy,9 in which strong comments were made against issuance of direction to the authorities to decide the representations as under the garb of deciding the representations, time barred claims were entertained by the authorities. The relevant portion of the judgment is as under:—

“We may also note that sometimes the High Courts dispose of matter merely with a direction to the authority to ‘consider’ the matter without examining the issue raised even though the facts necessary to decide the correctness of the order are available. Neither pressure of work nor the complexity of the issue can be a reason for the Court, to avoid deciding the issue which requires to be decided, and disposing of the matter with a direction to ‘consider’ the matter afresh. Be that as it may.

There are also several instances where unscrupulous petitioners with the connivance of ‘pliable’ authorities have misused the direction ‘to consider’ issued by Court. We may illustrate by an example. A claim, which is stale, time-barred or untenable, is put forth in the form of a representation. On the ground that the authority has not disposed of the representation within a reasonable time, the person making the representation approaches the High Court with an innocuous prayer to direct the authority to ‘consider’ and dispose of the representation. When the Court disposes of the petition with a direction to ‘consider’ the authority grants the relief, taking shelter under the order of the Court directing him to ‘consider’ the grant of relief. Instances are also not wanting where authorities, unfamiliar with the process and practice relating to writ proceedings and the nuances of judicial review, have interpreted or understood the order ‘to consider’ as directing grant of relief sought in the representation and consequently granting reliefs which otherwise could not have been granted. Thus, action of the authorities granting undeserving relief, in pursuance of orders to ‘consider’, may be on account of ignorance, or on account of bona fide belief that they should grant relief in view of Court's direction to ‘consider’ the claim, or on account of collusion/connivance between the person making the representation and the authority deciding it. Representations of daily wagers seeking regularization/absorption into regular service is a species of cases, where there has been a large scale misuse of the orders ‘to consider’.”

25. In Employees State Insurance Corporation v. All India I.T.D.C Employees Union,10 wherein it has been observed as under:—

“We may also note that sometimes the High Courts dispose of matter merely with a direction to the authority to ‘consider’ the matter without examining the issue raised even though the facts necessary to decide the correctness of the order are available. Neither pressure of work nor the complexity of the issue can be a reason for the Court, to avoid deciding the issue which requires to be decided, and disposing of the matter with a direction to ‘consider’ the matter afresh.”

26. In view of the above, we are of the considered opinion that the petition is totally misconceived and the petitioner has miserably failed to substantiate the averments regarding threat perception to him as well as his family members. The Court should not lose sight of the fact that demand for security by ineligible and unscrupulous persons create dearth of manpower for performing police duties in the State and ultimately the public suffers.

27. Thus, petition is devoid of any merit and is accordingly dismissed.

Petition Dismissed.