IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8451 of 2012 For Approval and Signature:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? Yes 2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge ? No ========================================================= RADHESHYAM R SHARMA - Petitioner(s) Versus GUJARAT INDUSTRIAL DEVELOPMENT CORPORATION & 3 -
Respondent(s) ========================================================= Appearance :
MR ZUBIN F BHARDA for Petitioner(s) : 1, MR RD DAVE for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 2, MR MITUL K SHELAT for Respondent(s) : 3 - 4.
========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 04/09/2012 ORAL ORDER
1. The petitioner has taken out present petition seeking below mentioned relief/s:-
“9(A).........
(B) That this Hon'ble Court may be pleased to quash and set aside the Corrigendum Order dated 29.3.2012 issued by the Divisional Manager (S.G.), GIDC, Vapi, allotting 334.45 sq. mtrs. of land reserved for green space to the respondent Nos. 3 and 4 by holding the said allotment to be illegal, unlawful, unauthorized and contrary to allotment policy of the GIDC.
(C). .................
(D). .................
(E). ..................
(F) ”
2. The respondent Nos. 3 and 4 have filed common reply affidavit. Respondent Nos. 1 and 2 have not filed any affidavit.
3. Mr. Bharda, learned advocate has appeared for the petitioner, Mr. Dave, learned advocate has appeared for the respondent Nos. 1 and 2 and Mr. Tolia, learned advocate has appeared on behalf of Mr. Mitul K Shelat, learned advocate for respondent Nos. 3 and 4.
4. The petitioner has, by present petition, opposed allotment of about 334.45 sq. mtrs of land in favour of respondent Nos. 3 and 4 on the ground that according to the policy of respondent Nos. 1 and 2 the said land is reserved for “Green Space” and that therefore the said allotment is contrary to the policy of respondent Nos. 1 and 2 and the allotment is arbitrary.
5. Mr. Bharda, learned advocate for the petitioner has reiterated the said details and contended that the respondent Nos. 1 and 2 have, as a policy, declared certain plots in Vapi Industrial Area, as “Green Space” and that therefore the said plots / parcels of land cannot be alloted to anybody and the said plots are required to be maintained as “Open Space” or “Green Space”. However, in violation of such policy the respondents have alloted 334.45 sq. mtrs of land to respondent Nos. 3 and 4 though the said land is covered within the reserved / declared area for green space area.
6. The respondent Nos. 3 and 4 have resisted the petition and in their reply affidavit, the said respondents have raised objection against maintainability of the petition on ground of suppression of the relevant and material facts.
6.1 It is claimed that the petitioner himself is beneficiary of such allotment however, the petitioner has not disclosed the said aspect.
Of course merely because the petitioner is beneficiary of illegal or unauthorized allotment, it would not convert said respondent's unauthorised allotment into legal and proper allotment. However there are other facts also, which are relevant.
6.2 It is also alleged that the relevant documents including panchnama drawn during the proceeding before the learned trial Court are not placed on record. The said respondents have further alleged that the petitioner has mentioned only convenient details as regards the proceedings which are pending before the learned Trial Court and several relevant – material aspects connected with the said proceedings and / or arising from the said proceedings have not been disclosed by the petitioner.
7. The petition is also opposed by the said respondents on the ground that the petitioner has taken out proceedings before the learned Trial Court wherein similar reliefs have been prayed for and the petitioner is trying to prosecute two remedies simultaneously.
So as to support and justify its allegation about suppression of material facts the respondent Nos. 3 and 4 have, further submitted in the reply affidavit that:-
“2. At the outset, I state that in view of the following preliminary submissions, this Honourable Court may not entertain this petition under article 226 of the Constitution of India.
(a) I state that no fundamental and / or legal right of the petitioner has been infringed by the order dated 29.3.2012 issued by the Divisional Manger, GIDC. The present petition under article 226 of he Constitution is therefore not maintainable in law.
(b) I state that the petitioner has suppressed a material fact that the petitioner himself is the beneficiary of corrigendum order dated 17.12.2011 whereby and where-under, 167 sq. metres of land abutting to the plot of the petitioner and forming part of green space came to be allotted in favour of the petitioner. It is therefore, evident that having obtained the benefit of verification himself, the petitioner is now seeking to object to a similar benefit being granted to the answering respondent without disclosing the material fact about the same before this Honourable Court. A copy of the said corrigendum order is annexed hereto and marked as ANNEXURE-R3/1.
(c) The petitioner has suppressed the material fact that the petitioner has encroached upon the said “green space” and has constructed toilets and servant quarters thereon. The petitioner has refused to part with the possession encroached upon by him and has approached this Honourable Court as well as the Civil Court at Vapi seeking to protect such illegal encroachment. The proceedings are clearly an abuse of the process of this Honourable Court and for the said reason, the Writ Petition is required to be dismissed with exemplary cost.
(d) The petitioner has sought to mislead this Honourable Court. The petitioner in his list of dates has suppressed the fact that the petitioner has filed Civil Suit being RCS No.25 of 2012 before the Principal Civil Judge, Vapi in respect of the very land in question. The petitioner is therefore not a fit person to be entrusted the writ of this Honourable Court.
(e) The petitioner has already instituted Civil Suit being RCS No.25 of 2012 before Principal Civil Judge, Vapi. In view thereof, the present petition under article 226 of the Constitution of India is not maintainable in law and is required to be rejected as such.
3. ...........
4. ..........
5. With reference to paragraph No.2, I state that the contents thereof are denied and disputed. I state that as is stated hereinabove, the petitioner has himself obtained allotment of land earmarked and reserved as green space. It is therefore, not permissible for the petitioner to contend that the allotment in favour of the answering respondent is contrary or in breach of any policy of the corporation. Furthermore, the petitioner is a trespasser and has encroached upon the green space land and the present proceedings are an attempt to protect the said unauthorized encroachment.
6. ........
7. With reference to para-3.2, I state that the contents thereof are not true and correct and the same are denied and disputed, save and except the fact regarding the issuance of the corrigendum order dated 29.3.2012. I state that infact the petitioner has encroached upon the land which is presently allotted to the answering respondents and has made unauthorized constructions thereon. I state that upon inquiry being made by the petitioner and upon verification, it was found that the area abutting to the plots of the petitioner was infact forming part of the plots of the petitioner. I state that in view thereof, upon payment of the price, the assignment has been made in favour of the petitioner. I state that the action is in accordance with law.
8. ....
9. .....
10. With reference to Ground (A), I state that the contents thereof are denied and disputed. I state that the additional area of 334.45 sq. metres is found to be part of the original plot of the petitioner and not of any green space. In view thereof, the same has been allotted to the petitioner upon payment of necessary consideration. It is denied that such allotment is impressible or is prohibited as alleged or for the reasons alleged.
11. .........
12. With reference to Ground (C), I state that the contents thereof are denied and disputed. I state that in respect of all cases where upon verification, there is any change in the size of the plot, the corporation has called upon the lessee to make payment towards the revised area of the plot at the prevalent rate determined by the corporation. I state that the petitioner himself has made payment in respect of the area abutting to his plot pursuant to the order dated 17.12.2011. It is evident that if on verification, additional area is forming part of any plot, the lessee would be obliged to make the payment for the additional area. The arguments canvassed by the petitioner are therefore, misconceived. I deny that the impugned order of allotment is illegal as alleged. I deny that the allotment is for extraneous consideration as alleged. I deny that the entire space between the existing plots was green space as alleged.”
8. After the respondent Nos. 3 and 4 filed reply affidavit stating alleged separation of relevant material facts by the petitioner, the petitioner has after seeking adjournment, filed affidavit in rejoinder wherein it is stated, inter alia, that:-
“2. I state that the respondents in their reply affidavit have raised preliminary objections in respect to certain facts which they claimed that I have suppressed in the petition. As against that I beg to submit that I have not made any material suppression either intentionally or with a view to misguide or mislead the Hon'ble Court. I state that as regard the corrigendum order dated 17.12.2011 passed in my favour where under 167 sq. mtrs. of land abutting to my plot and forming part of green space came to be allotted in my favour is concerned,I have in paragraph No.3.2 of the petition, after the lines Annexure-B(Colly) are the copies of the extracts of the Map as well as the sketch stated as under:-
“The petitioner further states that knowing fully well that the open area situated on the eastern side of the boundary of his plots was a green space area, the petitioner with his own finance and infrastructure developed a green garden by planting vegetations and trees after filling up the entire land which was completely uneven and the petitioner has continued to nurture the garden and maintain it at his cost.”
After having stated thus, in the reply affidavit the petitioner has then stated that:-
“............ I therefore, tender my unconditional apology before this Hon'ble Court for having missed to mention the said fact and also express remorse. On the other hand, I take leave of this Hon'ble Court to submit that the order to allot me the additional area is made by the Managing Director of the G.I.D.C. in the Year 2001 and I was put in possession even before the order made in the Year 2001 on the file. It is only that in 2011, the additional amount has been charged from me. I stat that the area that is allotted is a green space area and I have not tempered with the actual purpose and have retained the area as a green space area and get the same cleaned and watered and have nurtured the vegetation as well as the plantation ”
In light of the said averments in the reply affidavit Mr. Bharda, learned advocate for the petitioner tried to submit that the petitioner has tendered unconditional apology and that therefore the petition may be entertained.
9. Mr. Bharda, learned advocate for the petitioner however submitted that it is true that the petitioner has constructed certain structure on the land allotted to him and that if the respondent corporation would so direct, the petitioner will demolish the said construction.
9.1 Learned advocate for the petitioner also contended that the allotment to the respondent Nos. 3 and 4 of land admeasuring about 334.45 sq. mtrs is arbitrary and contrary to the policy of the respondent corporation and that therefore the said allotment may be set aside.
10. Mr. Dave, learned advocate for respondent No. 1 has opposed the submission by the learned advocate for the petitioner and has relied on the circular dated 26.7.1999 wherein the respondent corporation has made clarification with regard to its policy for reserved area for “Green Space”.
10.1 Mr. Dave, learned advocate for respondent No.1 submitted that since expenses towards maintenance etc. became burden-some for the respondent corporation. Therefore at subsequent stage it was considered appropriate by the respondent corporation to properly modify the said policy and to allot the area / land reserved for “green space” to the licencee / lease holders who were ready and willing for allotment of such land on condition to maintain it as “open space” and as “green area” and to not to make any construction in such allotted area.
He also submitted that it was in light of the said circular dated 26.7.1999, that the allotment to respondent Nos. 3 and 4 has been made and that therefore there is no illegality or irregularity much less any arbitrariness in the action of respondent corporation in making allotment of the said land admeasuring 334.45 sq. mters to respondent Nos. 3 and 4.
10.2 Mr. Dave, learned advocate for respondent No.1 submitted that even the petitioner himself has been allotted land admeasuring 167 sq. mtrs under the same policy and the petitioner himself is beneficiary of such allotment and that therefore the petitioner is not justified in making any grievance with regard to the allotment in favour of respondent Nos. 3 and 4.
10.3 So as to support the said submission learned advocate for the respondent Nos. 1 and 2 relied on the corrigendum order dated 17.12.2011 which demonstrates that the petitioner has also been allotted increased area to the extent of 167 sq. mtrs. It is in connection with the said increased area allotted to the petitioner that the respondent Nos. 3 and 4 have made serious allegations against the petitioner and submitted that on the said increased area allotted to the petitioner, the petitioner has constructed servant quarters and certain other construction which is described in the panchnama and which is placed on record under Annexure- (RA-I).
It is claimed that the petitioner has committed breach of the allotment condition under which the petitioner has been allotted increased area to the extent of 167 sq. mtrs and the said fact has been very conveniently suppressed by the petitioner.
It is also claimed and asserted that after filing rejoinder affidavit wherein the petitioner has admitted the factum about construction made in the said increased area, however the fact about other construction is still suppressed (though it is clearly mentioned in the panchanama drawn in pursuance of the order passed by the learned trial Court).
10.4 Learned advocate for respondent Nos. 3 and 4 has relied on the decision by the Apex Court in case between Ramrameshwari Devi and others vs. Nirmala Devi and others (2011 [8] SCC 249) and in case between Shri Adarsh Sanskar Dham vs. State of Gujarat (2008 [1] GLH 777) and submitted that in view of suppression of facts by the petitioner the petition does not deserve to be entertained and petition deserves to be dismissed with cost.
11. I have considered rival submissions made by the learned advocate for the petitioner and respondent Nos. 3 and 4 and learned advocate for respondent corporation. I have also considered documents available on record.
11.1 It is noticed from the record that the petitioner has been allotted increased area to the extent of 167 sq. mtrs by the respondent corporation under allotment order / corporation order dated 17.12.2011 (annexure-R3/1).
11.2 Thus, it is a matter of fact and matter of record that the petitioner has been allotted additional / increase area under respondent corporation's modified policy.
The said area of 167 sq. mtrs allotted to the petitioner is originally part of “Green Space Area” and the said factual aspects are not in dispute.
Thus, the petitioner is beneficiary of the said modification in the policy and the said factual aspect establishes (a) that the policy regarding green space has been modified by the respondent corporation vide its office order / circular dated 26.7.1999 in fact of which such allotment is permissible; and (b) therefore, in view of change / modification in policy, such allotment, in the first instance, cannot be termed unauthorised or illegal and (c) that after having received similar benefit of allotment increased area, the petitioner has raised grievance against the allotment to the respondent, under the same modified policy.
11.3 It has also emerged from the record that the petitioner herein has taken out several proceedings in the trial Court.
11.4 During the pendency of the said proceedings Commission was appointed and panchnama was drawn. A photocopy of panchnama is placed on record wherefrom it emerges that the petitioner has constructed bathroom and on the other side of the said area certain other construction has also been made by the petitioner.
11.5 Having regard to the said panchnama it comes out that the petitioner has not disclosed said factual aspect in the petition.
11.6 Even after tendering rejoinder affidavit wherein petitioner has tendered unconditional apology for not having mentioned the details about construction of bathroom in the area allotted to him, the details about panchnama and the other construction have not been mentioned by the petitioner.
11.7 Having regard to the aforesaid aspect it comes out that the petitioner has not disclosed correct and complete facts and even after reply affidavit came to be filed by the respondent Nos.3 and 4 wherein the said respondent has brought on record the fact about suppression of relevant facts by the petitioner, the petitioner has in rejoinder affidavit also not come out with complete facts and details.
12. On conjoint reading of the panchnama, memo of petition and the affidavit filed by respondent Nos. 3 and 4 it emerges that the petitioner has either selected convenient facts or has mentioned the facts in truncated manner or the facts are encapsulated so that the real and inconvenient aspects may not be visible.
12.1 When jurisdiction of the Court under Article 226 of the Constitution of India is invoked the petitioner is not free to pick and choose the facts or to cover the facts with skillful drafting so that enough room may be available to wriggle out of the charge of suppression of facts.
12.2 The non-disclosure of relevant, connected and related facts which are within the knowledge of the petitioner or which are ordinarily expected and supposed to be within the knowledge of the petitioner will, in case of writ petition, amount to suppression and will be presumed to be willful and conscious, unless proved otherwise, to the satisfaction of the Court.
12.3 The prerogative and discretionary jurisdiction of this Court under Article 226 of the Constitution of India is conferred for granting equitable relief and doing substantial justice and that therefore complete and honest disclosure of complete set of facts is not only expected of the petitioner but is sine qua non for the person who seeks equitable relief from the Court. It is the first and fundamental obligation and primary duty of the petitioner seeking equitable relief to truthfully state and disclose all relevant, connected and related facts and any default or lapse on this count would dis- entitle the petitioner from seeking any relief from the Court, rather expose such petitioning litigant to appropriate directions, including direction to pay cost, as the facts of case may require.
12.4 The duty and obligation is to give complete and true account of all relevant, connected and related facts and proceedings and to also submit the connected documents.
12.5 Selective narration and disclosure of facts and submission of documents or convenient omission of details, facts, documents and information would always be matter of, and will always meet with, disapproval by the Court and will not be viewed kindly or will not be condoned sympathetically in writ petition seeking equitable or discretionary relief. In such circumstances Court would not readily or quickly accept post facto apology or the submission that it was bonafide and unintended mistake.
12.6 In this regard it is appropriate to refer to the observations made by the Apex Court in the decision in case of K.D. Sharma vs. Steel Authority of India Limited (2008 [12] SCC 481) which read thus:-
“34. The jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. It is, therefore, of utmost necessity that the petitioner approaching the Writ Court must come with clean hands, put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim.
35. The underlying object has been succinctly stated by Scrutton, L.J., in the leading case of R. v. Kensington Income Tax Commissioners, (1917) 1 KB 486 : 86 LJ KB 257 : 116 LT 136 in the following words :
"It has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts- it says facts, not law. He must not misstate the law if he can help it; the Court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it the Court will set aside any action which it has taken on the faith of the imperfect statement".
(Emphasis supplied)
36. A prerogative remedy is not a matter of course. While exercising extraordinary power a Writ Court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the Court. If the applicant makes a false statement or suppresses material fact or attempts to mislead the Court, the Court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating "We will not listen to your application because of what you have done". The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it.
37. In Kensington Income Tax Commissioner, Viscount Reading, C.J. observed : "Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the applicant was not candid and did not fairly state the facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived. Before coming to this conclusion a careful examination will be made of the facts as they are and as they have been stated in the applicant's affidavit, and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the true facts. But if the result of this examination and hearing is to leave no doubt that this Court has been deceived, then it will refuse to hear anything further from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit".
(Emphasis supplied)
38. The above principles have been accepted in our legal system also. As per settled law, the party who invokes the extraordinary jurisdiction of this Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play 'hide and seek' or to 'pick and choose' the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of Writ Courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because, "the Court knows law but not facts".
39. If the primary object as highlighted in Kensington Income Tax Commissioners is kept in mind, an applicant who does not come with candid facts and 'clean breast' cannot hold a writ of the Court with 'soiled hands'. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, maneuvering or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the Court, the Court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the Court does not reject the petition on that ground, the Court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of Court for abusing the process of the Court.”
12.7 Having regard to the aforesaid aspect and also in view of the fact that the petitioner has suppressed relevant facts the petition does not deserve to be entertained.
12.8 Even otherwise as noticed from the submission by learned advocate for the respondent Nos. 1 and 2 under circular / office order dated 26.7.1999 the policy has been modified and it is under the said modified policy that the allotment has been made to the respondent Nos. 3 and 4 and the petitioner himself is beneficiary of such allotment and that therefore the allegation and the contention that the allotment of land admeasuring 334.45 sq. mtrs to the respondent Nos. 3 and 4 is contrary to the Corporation's policy and / or is arbitrary, is misconceived, overlooks the change in the policy (in view of which even the petitioner is also allotted additional land) cannot be sustained.
13. When this Court has reached the conclusion that the petitioner did not disclose complete facts or selectively mention the relevant, related and connected facts or did not place on record all documents, the petitioner's conduct not only tantamount to suppressio veri but is also amount to abuse of process and wastage of Court's time.
13.1 The petition, therefore, does not deserve to be entertained and Court is of the view that for the foregoing reasons petition deserves to be dismissed as not maintainable and also on ground of suppression of relevant facts, with cost which is quantified at Rs.5,000/- to be paid to Legal Aid Committee.
With the aforesaid clarification the petition stands disposed of accordingly.
Suresh* Sd/-
(K.M.THAKER,J.)