Allahabad High Court
M/S Lavish Educational Services ... vs State Of U.P. And Another on 18 December, 2023
Author: Manoj Kumar Gupta
Bench: Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2023:AHC:239799-DB
Court No. - 21
Case :- WRIT - C No. - 39921 of 2023
Petitioner :- M/S Lavish Educational Services Private Ltd.
Respondent :- State of U.P. and Another
Counsel for Petitioner :- Uma Nath Pandey
Counsel for Respondent :- C.S.C.,Aditya Bhushan Singhal,Anjali Upadhya
Hon'ble Manoj Kumar Gupta,Acting Chief Justice
Hon'ble Kshitij Shailendra,J.
1. Heard Sri Uma Nath Pandey, learned counsel for the petitioner, Sri Rajiv Gupta, learned Additional Chief Standing Counsel, for the respondent no.1 and Sri M.C. Chaturvedi, learned Senior Counsel, assisted by Sri Aditya Bhushan Singhal, for the respondent no.2 and perused the record.
2. This writ petition has been filed challenging two orders. By the first order dated 06.03.2023, the Additional Chief Executive Officer of Greater Noida Industrial Development Authority has disposed of the petitioner's representation and by the second order dated 25.10.2023, the State Government has, in exercise of powers under Section 41(3) of U.P. Urban Planning and Development Act, 1973, dismissed the revision filed by the petitioner against the order dated 06.03.2023.
3. This Court passed an interim order on 30.11.2023 restraining creation of third party rights in respect of one of the plots to be advertised by the respondents. By that time, counter affidavit was not filed and it has recently been filed on 15.12.2023 by the respondent no.2 bringing on record factum of filing of Writ-C No.15336 of 2023 on 26.04.2023 by the same petitioner against the same order dated 06.03.2023, which has been challenged in the present case also. Admittedly, the said writ petition is pending and it has been pleaded in paragraph no.47 of the counter affidavit that the present writ petition, having been filed by making gross concealment of previously instituted petition, deserves dismissal with exemplary cost.
4. Today, when the matter was taken up, learned counsel for the petitioner, at the very outset and before addressing the Court on merits of the present writ petition, requested for withdrawal of the same in view of the pendency of the previous writ petition with a statement that the petitioner proposes to challenge the order dated 25.10.2023 by way of amendment in the previous writ petition.
5. The said request has been vehemently opposed by the respondents stating that the petitioner succeeded to obtain an interim order in the present case without disclosing previously instituted writ petition. It has also been argued by Sri M.C. Chaturvedi that even though previous writ petition was filed on 26.04.2023, the petitioner, in the revision filed before the State Government on 11.09.2023, did not mention a single word about the challenge made by the petitioner to the same order before this Court by filing Writ-C No.15336 of 2023.
6. We have considered the prayer for withdrawal in the light of material on record as well as the contents of counter affidavit.
7. It is apparently clear from the writ petition that it does not contain disclosure of previously instituted Writ-C No.15336 of 2023, rather in para 1, it is stated that it is the first writ petition for the reliefs claimed in the writ petition. The said writ petition was filed on 26.04.2023 and though the revision was preferred before State Government in September, 2023, the petitioner did not disclose before the State Government the challenge already made to the same order before the writ court. The order sheet of the present case reveals that the interim order was passed on 30.11.2023. Therefore, it is clear that when the petitioner could not get an interim relief in Writ-C No.15336 of 2023, he approached the State Government in September, 2023 in anticipation of some relief but could not get any relief therefrom and then the present writ petition was filed on 09.11.2023 and the petitioner, very conveniently, succeeded to obtain an interim order on 30.11.2023 restraining creation of third party rights.
8. The Court also notices that the said interim order was extended from time to time, in absence of counter affidavit on behalf of Greater NOIDA, though it was obtained by playing fraud upon this Court and the prayer for withdrawal of present writ petition has been made by the petitioner immediately after the factum of deliberate concealment has come on record in terms of counter affidavit.
9. Time and again the issue of abuse of process of law has come up before the Supreme Court as well as High Courts. The Courts have, over the centuries, frowned upon litigants, who, with intent to deceive and mislead the courts, initiated proceedings without full disclosure of facts.
10. In Chandra Shashi Vs. Anil Kumar Verma, (1995) 1 SCC 21, Apex Court held as under:
"To enable the courts to ward off unjustified interference in their working, those who indulge in immoral acts like perjury, prevarication and motivated falsehoods have to be appropriately dealt with, without which it would not be possible for any court to administer justice in the true sense and to the satisfaction of those who approach it in the hope that truth would ultimately prevail. People would have faith in courts when they would find that (truth alone triumphs) is an achievable aim there; or (it is virtue which ends in victory) is not only inscribed in emblem but really happens in the portals of courts"
11. In Buddhi Kota Subbarai (Dr.) Vs. K. Parasaran, (1996) 5 SCC 530), Apex Court held as under:
"The course adopted by the applicant is impermissible and his application is based on misconception of law and facts. No litigant has a right to unlimited drought on the court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived or frivolous petitions. After giving our careful consideration to the submissions made at the bar as well as those contained in the memorandum of the application, we are of the opinion that this application is misconceived, untenable and has no merits whatsoever. It is accordingly dismissed."
12. In Arunima Baruah Vs. Union of India (2007)6 SCC 120, Supreme Court held that it is trite law that to enable the Court to refuse to exercise its discretionary jurisdiction suppression must of material fact. Material fact would mean material for the purpose of determination of the lis. It was further held that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands.
13. In Prestige Lights Limited Vs. State Bank of India (2007)8 SCC 449, Apex Court held as under:
"It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a Writ Court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, the Court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible."
14. In K.D Sharma Vs. Steel Authority of India Limited and others, (2008)12 SCC481, Supreme Court held that no litigant can play "hide and seek" with the courts or adopt "pick and choose". To hold a writ of the court one should come with candid facts and clean breast. Suppression or concealment of material facts is forbidden to a litigant or even as a technique of advocacy. In such cases the Court is duty bound to discharge rule nisi and such applicant is required to be dealt with for contempt of Court for abusing the process of the court.
15. Supreme Court in Dalip Singh Vs. State of Uttar Pradesh and others, (2010)2 SCC 114 came down heavily on unscrupulous litigants by holding that it is now well established that a litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.
16. In Amar Singh Vs. Union of India (2011)7 SCC 69, Supreme Court held that Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the courts, initiated proceedings without full disclosure of facts. Courts held that such litigants have come with "unclean hands" and are not entitled to be heard on the merits of their case.
17. In Kishore Samrite Vs. State of U.P. and others, 2012 (10) SCALE 330, The Supreme Court held as under:
"31. It has been consistently stated by this Court that the entire journey of a Judge is to discern the truth from the pleadings, documents and arguments of the parties, as truth is the basis of the Justice Delivery System.
32. With the passage of time, it has been realized that people used to feel proud to tell the truth in the Courts, irrespective of the consequences but that practice no longer proves true, in all cases. The Court does not sit simply as an umpire in a contest between two parties and declare at the end of the combat as to who has won and who has lost but it has a legal duty of its own, independent of parties, to take active role in the proceedings and reach at the truth, which is the foundation of administration of justice. Therefore, the truth should become the ideal to inspire the courts to pursue. This can be achieved by statutorily mandating the Courts to become active seekers of truth. To enable the courts to ward off unjustified interference in their working, those who indulge in immoral acts like perjury, prevarication and motivated falsehood, must be appropriately dealt with. The parties must state forthwith sufficient factual details to the extent that it reduces the ability to put forward false and exaggerated claims and a litigant must approach the Court with clean hands. It is the bounden duty of the Court to ensure that dishonesty and any attempt to surpass the legal process must be effectively curbed and the Court must ensure that there is no wrongful, unauthorized or unjust gain to anyone as a result of abuse of the process of the Court. One way to curb this tendency is to impose realistic or punitive costs."
18. In G. Narayanaswamy Reddy v. Govt. of Karnataka's case (supra), the Court while noticing the fact regarding the stay order passed by the High Court which prevented passing of the award by the Land Acquisition Officer within the prescribed time period was concealed and in the aforesaid context, it observed that :
"2. ... Curiously enough, there is no reference in the special leave petitions to any of the stay orders and we came to know about these orders only when the respondents appeared in response to the notice and filed their counter- affidavit. In our view, the said interim orders have a direct bearing on the question raised and the non-disclosure of the same certainly amounts to suppression of material facts. On this ground alone, the special leave petitions are liable to be rejected. It is well settled in law that the relief under Article 136 of the Constitution is discretionary and a petitioner who approaches this Court for such relief must come with frank and full disclosure of facts. If he fails to do so and suppresses material facts, his application is liable to be dismissed. We accordingly dismiss the special leave petitions."
19. In Moti Lal Songara Vs. Prem Prakash @ Pappu and another (2013) 9 SCC 199, Hon'ble the Supreme Court, considering the issue regarding concealment of facts before the Court, while observing that "court is not a laboratory where children come to play", opined as under:
"19. The second limb of the submission is whether in the obtaining factual matrix, the order passed by the High Court discharging the accused-respondent is justified in law. We have clearly stated that though the respondent was fully aware about the fact that charges had been framed against him by the learned trial Judge, yet he did not bring the same to the notice of the revisional court hearing the revision against the order taking cognizance. It is a clear case of suppression. It was within the special knowledge of the accused. Any one who takes recourse to method of suppression in a court of law, is, in actuality, playing fraud with the court, and the maxim supressio veri, expression faisi , i.e., suppression of the truth is equivalent to the expression of falsehood, gets attracted. We are compelled to say so as there has been a calculated concealment of the fact before the revisional court. It can be stated with certitude that the accused- respondent tried to gain advantage by such factual suppression. The fraudulent intention is writ large. In fact, he has shown his courage of ignorance and tried to play possum.
20. The High Court, as we have seen, applied the principle "when infrastructure collapses, the superstructure is bound to collapse". However, as the order has been obtained by practising fraud and suppressing material fact before a court of law to gain advantage, the said order cannot be allowed to stand."
(emphasis supplied)
20. In ABCD Vs. Union of India and others (2020) 2 SCC 52, Hon'ble Supreme Court in the matter where material facts had been concealed, while issuing notice to the petitioner therein, exercising its suo-motu contempt power, observed as under :
"15. Making a false statement on oath is an offence punishable under Section 181 of the IPC while furnishing false information with intent to cause public servant to use his lawful power to the injury of another person is punishable under Section 182 of the IPC. These offences by virtue of Section 195(1)(a)(i) of the Code can be taken cognizance of by any court only upon a proper complaint in writing as stated in said Section. In respect of matters coming under Section 195(1)(b)(i) of the Code, in Pushpadevi M. Jatia v. M.L. Wadhawan etc., (1987) 3 SCC 367 prosecution was directed to be launched after prima facie satisfaction was recorded by this Court.
16. It has also been laid down by this Court in Chandra Shashi v. Anil Kumar Verma (1995) 1 SCC 421 that a person who makes an attempt to deceive the court, interferes with the administration of justice and can be held guilty of contempt of court. In that case a husband who had filed a fabricated document to oppose the prayer of his wife seeking transfer of matrimonial proceedings was found guilty of contempt of court and sentenced to two weeks imprisonment.
21. In Dhananjay Sharma Vs. State of Haryana and others (1995) 3 SCC 757 it has been observed that filing of a false affidavit was the basis for initiation of action in contempt jurisdiction and the concerned persons were punished.
22. It has been held in the judgments referred to above that one of the two cherished basic values by Indian society for centuries is "satya" (truth) and the same has been put under the carpet. Truth constituted an integral part of the justice-delivery system in the pre- Independence era, however, post-Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. In the last 40 years, the values have gone down and now a litigants can go to any extent to mislead the court. They have no respect for the truth. The principle has been evolved to meet the challenge posed by this new breed of litigants. Now it is well settled that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final. Suppression of material facts from the court of law, is actually playing fraud with the court. The maxim supressio veri, expression faisi, i.e. suppression of the truth is equivalent to the expression of falsehood, gets attracted.
23. Having heard learned counsel for parties and having perused the record of proceedings, as discussed in the initial paragraphs of the present order, this Court is of the considered view that the petitioner is guilty of committing abuse of the process of law and it obtained an interim order by suppressing of facts and in view of the authorities referred to herein above, the writ petition deserves dismissal with cost.
27. The writ petition is dismissed with cost of Rs.50,000/- (Rupees fifty thousand only).
28. The Registrar General of this Court is directed to send a copy of this order to the District Magistrate, Gautam Budh Nagar, who shall recover the amount of cost from the petitioner as arrears of land revenue within a period of one month from the date of receipt of order and shall remit the amount recovered to this Court along with a compliance report.
29. On receipt of aforesaid amount, Registrar General of this Court shall credit the same to the account of Rajkiya Bal Greh Shishu, Allahabad being Account No. 3785336735, State Bank of India, Khuldabad Branch, Prayagraj, IFSC Code SBI N0002560, Micro Code 211002015, after due verification of the particulars of the said account in consultation with the Head/ Incharge of the said Rajkiya Bal Greh Shishu, Allahabad. The amount so remitted shall be used for the welfare of the children.
Order Date :- 18.12.2023
AKShukla/-
(Kshitij Shailendra, J.) (Manoj Kumar Gupta, A.C.J.)
