Allahabad High Court
Vandana Srivastava vs State Of U.P. And 6 Others on 19 September, 2017
Bench: Tarun Agarwala, Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
COURT NO.29
Civil Misc. Writ Petition No. 42158 of 2017
Vandana Srivastava
Vs
State of U.P. and others
*************
Hon'ble Tarun Agarwala, J.
Hon'ble Siddhartha Varma, J.
(Per: Tarun Agarwala, J.)
The petitioner had filed Writ Petition No.13816 of 2017 praying for the quashing of the order of the Consumer Grievances Redressal Forum dated 9.12.2016 and for a writ of mandamus commanding the Purvanchal Vidyut Vitran Nigam Ltd. and its Executive Engineer to provide electricity connection with a load of 6 KW under the rate schedule LMV-6 for running a footwear shop in the premises in question. In that writ petition the petitioner claimed himself to be a tenant of the shop. It was urged, in that writ petition, that the Consumer Grievance Redressal Forum held that electricity energy could not be given to the petitioner as there was a dispute between the petitioner and the landlord.
It transpires that the petitioner had also filed a Civil Suit No.1454 of 2015, in which a Miscellaneous Injunction Application was filed for a direction to the licensing authority to provide electrical energy in the shop in question. This temporary injunction application was rejected by the trial court by an order dated 6.3.2017 after recording a categorical finding that the plaintiff had failed to establish, prima facie, that he was a tenant in the premises in question.
The factum of filing the injunction application and the order holding that the petitioner had failed to prove that he was a tenant was concealed in the writ petition. The Court considering the aforesaid concealment found that these were material facts, which should have been disclosed in the writ petition. The Court by an order dated 9.5.2017 dismissed the writ petition on the ground of concealment of material facts.
The petitioner has now filed the second writ petition for the same relief contending that he has now disclosed all the material facts and, therefore, the writ petition should be heard on merits and should not be dismissed on the ground of resjudicata. In support of his submission the petitioner has relied upon a decision of the Supreme Court in Arunima Baruah vs. Union of India and others, 2007(6) SCC 120, wherein the Supreme Court held-
"Existence of an alternative remedy by itself, as was propounded in S.J.S. Business Enterprises (P) Ltd. (supra) may not be a relevant factor as it is one thing to say that there exists an alternative remedy and, therefore, the court would not exercise its discretionary jurisdiction but it is another thing to say that the court refuses to do so on the ground of suppression of facts.
Ubi jus ibi remedium is a well known concept. The court while refusing to grant a relief to a person who comes with a genuine grievance in an arguable case should be given a hearing. [See Bhagubhai Dhanabhai Khalasi (supra)] In this case, however, the appellant had suppressed a material fact. It is evident that the writ petition was filed only when no order of interim injunction was passed. It was obligatory on the part of the appellant to disclose the said fact.
In this case, however, suppression of filing of the suit is no longer a material fact. The learned Single Judge and the Division Bench of the High Court may be correct that, in a case of this nature, the court's jurisdiction may not be invoked but that would not mean that another writ petition would not lie. When another writ petition is filed disclosing all the facts, the appellant would be approaching the writ court with a pair of clean hands, the court at that point of time will be entitled to determine the case on merits having regard to the human right of the appellant to access to justice and keeping in view the fact that judicial review is a basic feature of the Constitution of India."
Similar view was expressed by the Supreme Court again in M/s Sardar Associate and others vs. Punjab and Sindh Bank and others, AIR 2010 SC 218.
Having heard Sri Shashi Nandan, the learned Senior Counsel assisted by Sri Udayan Nandan for the petitioner and Sri Kapil Dev Singh Rathore, the learned counsel for the Electricity Department and Sri Sujeet Kumar Tripathi, the learned counsel for the private respondents, we are of the opinion that the petitioner is not entitled for any relief.
It is settled law that the Writ Court will refuse to exercise its discretionary jurisdiction where it finds that there is a suppression of material facts. This principle is also embodied in Chapter 22 Rule 7 of the High Court Rules. It is incumbent upon the petitioner to reveal material facts in the writ petition, in the event, the petitioner wishes the Court to exercise its discretionary jurisdiction in a writ proceeding. If there is suppression of a material fact, it would disentitle the petitioner to obtain a discretionary relief.
What would be the extent of suppression of material fact would depend upon the facts and circumstances of each case. In our opinion, the material fact would mean such material, which is necessary for the purpose of determining the lis between the parties. If the fact suppressed was not material for determination of the lis between the parties, the Court may not refuse to exercise its discretionary jurisdiction, but, where the facts are necessary to decide the lis, then suppression of those facts would disentitle the petitioner from availing the discretionary jurisdiction. The Court would be justified in coming to the conclusion that the petitioner by suppression of material facts has approached the Court with a pair of dirty hands. We are of the opinion, that even if the petitioner has now disclosed the material facts in the second round of litigation, the said dirt has not been removed nor the hands have become clean.
In the instant case, we find that the petitioner has again stated in paragraph 7 of the writ petition that he was a tenant of the shop in question. The factum of tenancy is disputed and the finding of the trial court is still operating against the petitioner. We also find that against the rejection of the injunction application the petitioner has preferred Misc. Appeal No.32 of 2012 before the District Judge, Gorakhpur, which is pending consideration.
In the light of the aforesaid, we are of the opinion that second writ petition for the same cause of action is not permissible in the light of the decisions of the Supreme Court in Sarguja Transport Service vs. STAT, Gwalior and others, AIR 1987 SC 88, Ashok Kumar vs. Delhi Development Authority, 1994(6)SCC 97 and Avinash Nagra v Navodaya Vidyalaya Samiti and others, 1997(2) SCC 534 coupled with the fact that the petitioners appeal on the same issue is also pending before the District Judge.
In Bhaskar Laxman Jadhav and others vs. Karamveer Kakasaheb Wagh Education Society and others, 2013(11)SCC 531, the Supreme Court held that it is not for the litigant to decide what facts are material for adjudication of a case and what is not a material fact. What is relevant is, that it is obligatory for a litigant to disclose all the facts of the case and leave the decision making to the Court. In the instant case, there is a categorical finding that a material fact had not been disclosed by the petitioner in the earlier round of litigation. Consequently, in the facts and circumstances of the present case, the decisions cited by the learned counsel for the petitioner is distinguishable.
Consequently, for the reason aforestated, the Court is not inclined to entertain the writ petition.
The writ petition is dismissed.
Date:- 19.9.2017
AKJ
(Siddhartha Varma, J.) (Tarun Agarwala, J.)
