Calcutta High Court

Tilak Ratan Realtors Pvt. Ltd. & ... vs The Kolkata Municipal ... on 21 April, 2021

                    IN THE HIGH COURT AT CALCUTTA
                  CONSTITUTIONAL WRIT JURISDICTION
                            ORIGINAL SIDE

BEFORE:
The Hon'ble Mr. Justice Ravi Krishan Kapur



                             W.P.O. NO.579 of 2018
                       Tilak Ratan Realtors Pvt. Ltd. & Anr.

                                      -vs-

                      The Kolkata Municipal Corporation & Ors.



For the petitioners             : Mr. Arindam Banerjee,
                                  Mr. Tanay Agarwal,
                                  Ms. Pallabi Ghosh,
                                  Mr. Ishaan Saha
For the Kolkata Municipal       : Mr. Achintya Banerjee,
Corporation                       Ms. Era Ghose

For the State                   : Mrs. Chama Mookherjee,
                                  Mr. Amit Kr. Ghosh

Heard on                        : 03.02.2021, 10.03.2021, 24.03.2021

Judgment on                     : 21.04.2021

Ravi Krishan Kapur, J.:

   1. The grievance of the petitioners is directed against the refusal and

      inaction of the Kolkata Municipal Corporation (KMC) to mutate the

      name of the petitioner company as owner of premises no.15A,

      Armenian Street ("the premises"). The petitioners also pray that the

      KMC treat the premises as a non-thika premises in their records.
                                     2



2. The facts culminating in the filing of the petition are that the

  petitioner by an indenture dated 14 June, 2008 purchased the

  premises. The premises is approximately 5 cottahs 8 chittaks and

  there is land and building situated on the premises. It is alleged that

  notwithstanding there being no material in the records of the KMC,

  the KMC has unlawfully sought for a clearance from The Controller,

  Kolkata Thika Tenancy, the respondent no.5 herein. It is also alleged

that by an order dated 30 December, 2016 passed by the respondent

no.5, the petitioners had come to learn that the premises is not within

the purview of the Thika Controller. The petitioners complain that

though they have filed a copy of the order dated 30 December, 2016

with the KMC, the KMC have failed and refused to mutate the name of

the petitioner company in their records and have also refused to treat

the premises as a non-thika premises.

3. It is contended on behalf of the KMC that the petitioner has

suppressed an earlier order dated 28 January, 2011 passed in Misc.

Case No.26/2009 under the West Bengal Thika Tenancy (Acquisition

and Regulation) Act, 2001 ("the Act"). It is further alleged that the writ

petitioner and the vendor to the aforesaid conveyance were

represented throughout in the proceedings before the Thika

Controller. Insofar as the order dated 30 December, 2016 is

concerned, it is alleged that the same is an unsigned order and is

contrary to the earlier order dated 28 January, 2011 passed in Misc.

Case No.26/2009. The KMC also challenges the authenticity and

veracity of the order dated 30 December, 2016 served on them by the

petitioners. It is further contended by the KMC that notwithstanding

enquiries, the respondent no.5 was unable to verify the authenticity of

the order dated 30 December, 2016 on the ground that the file

pertaining to the premises was untraceable. It is also contended that

the premises has vested in the State in terms of the order dated 28

January, 2011 passed by the respondent no.5.

4. The respondent no.5 has also filed an affidavit and reiterated the fact

that there has been suppression on the part of the petitioners

inasmuch as the order dated 28 January, 2011 passed in Misc. Case

No.26/2009 had been deliberately suppressed in the petition.

5. In reply, it is submitted by the petitioners that the order dated 28

January, 2011 has been passed without jurisdiction and no reliance

ought to be placed on the same. It is further alleged that the registered

conveyance in favour of the petitioner company has not been set aside

by any Competent Court. Accordingly, the KMC is bound to give effect

to the conveyance and mutate the name of the petitioner company in

their records. It is further alleged that the order passed by the

respondent no.5 dated 28 January, 2011 is in excess of jurisdiction

and the Thika Controller has no power or jurisdiction to decide

whether there is a "khatal" on the premises or not. It is also submitted

that the premises does not vest in the State and the KMC be directed

to mutate the premises in the name of the petitioner company and

treat the premises to be a non-thika premises.

6. I have heard the parties. I have also considered the Notes of

Submissions filed on their behalf.

7. At the outset, I deal with the point of suppression which has been

raised both by the KMC and the respondent no.5. It is alleged on

behalf of the respondents that the petitioners are guilty of suppression

and have deliberately and intentionally chosen not to disclose the

order dated 28 January, 2011 passed by the Thika Controller in Misc.

Case No.26/2009.

8. Premises no.15A, Armenian Street and Premises no.15B, Armenian

Street was carved out of the original Premises no.15, Armenian Street.

By a deed of conveyance dated 14 June, 2008 executed by and

between one Bijan Bihari Malik and the petitioner company, the

petitioner company purchased the premises.

9. It appears that in the year 2009 a proceeding was initiated under

Section 5(3) of the Act being Misc. Case No.26/2009 before the Thika

Controller. Such proceeding culminated in an order dated 28 January,

2011 being passed by the Controller. It appears from the said order

that both the petitioners and the vendors to the conveyance were

represented by Advocates. Both were eo-nomine parties to the

aforesaid proceeding and their names appear as opposite parties nos.1

and 2 respectively in the order sheet. In deciding the use of the

property, the Controller has held that the property has visages of proof

of use as a 'khatal'. It is also recorded in the order dated 28 January,

2011 that upon physical inspection of the premises being made by the

Enquiring Officer, the presence of concrete tubs for use of cattle were

found at the premises. The contention of the petitioners that the

premises was used for residential purposes and not khatal has been

considered and rejected by the Controller. Thus, the Controller

concluded that the premises has been used and occupied as a khatal

and vests in the State in terms of Section 4(b) of the Act. There is a

specific direction in the order to inform the KMC of the order dated 28

January, 2011.

10. Indisputably, there has been no challenge either by way of a

statutory appeal or otherwise against the order dated 28 January,

2011. The order dated 28 January, 2011 has attained finality and is

binding on all the parties. I am of the view that in the facts of the

instant case, where the petitioners have sought for a direction on the

respondent KMC to mutate the premises in the name of the petitioner

company and treat the same as a non-thika premises, the order dated

28 January, 2011 passed in Misc. Case No.26/2009 is a germane,

relevant and material fact. The petitioners were parties to the

proceedings before the respondent no.5. They participated at the

hearing of the said proceedings and were also duly represented by an

Advocate. Accordingly, the petitioners are deemed to have actual

knowledge of Misc. Case No.26/2009 and the order dated 10

December, 2011 and have deliberately chosen not to disclose this fact

in the petition. The petition proceeds on the basis that the petitioners

purchased the premises in 2008 and thereafter came to learn of an

order dated 30 December, 2016 passed by the respondent no.5. There

is no reference nor even a whisper of Misc. Case No.26/2009 nor of

the order dated 28 January, 2011 in the petition. The contention of

the petitioners in the reply filed by them that they were not aware of

the order dated 28 January, 2011 is also liable to be rejected. I find

this to be a plea in desperation and devoid of any substance or

bonafides. I do not find any merit in the excuse that the Manager of

the petitioner company had left the employment of the petitioner

company and there was a communication gap between the Advocate

and the then Manager of the petitioner company. Significantly, there

is no denial of the order dated 28 January, 2011 nor of the

proceedings being Misc. Case No.26/2009 by the petitioners.

11. The usage of the premises was also gone into by the Controller and it

has been conclusively found that the premises was being used as a

"khatal". Under Section 4 (b) of the Act once the property is hit by the

provisions of the Act, the premises automatically vests in the State. In

these circumstances, I am of the view that the petitioners were obliged

and it was their bounden duty to disclose the order dated 28 January,

2011 and the facts of Misc. Case No.26/2009. I also find that the

order dated 28 January, 2011 has a direct bearing on the issues

raised in these proceedings and non-disclosure of the same by the

petitioner certainly amounts to suppression of material facts.

12. The most sagacious judgments of our Courts define "fraud" as an act

of deliberate deception with the design of securing something by

taking unfair advantage of another. It is a sort of cheating intended to

gain an advantage. Any litigant who approaches Court is bound to

produce all the documents relevant, material and germane to the

litigation. Non-production or non-mentioning or withholding a vital

document in order to gain an advantage on the other side

tantamounts to playing fraud on the Court as well as the opposite

party [S.P. Chengalvaraya Naidu vs. Jagannath & Ors (1994) 1 SCC 1

(paras-1,5 & 6), A.V. Papayya Sastry & Ors. vs. Govt. of A.P. & Ors.

(2007) 4 SCC 221 (paras 21-33), K.D. Sharma vs. Steel Authority of

India & Ors. (2008) 12 SCC 481 (paras-26-28 & 34-52) and Dalip Singh

vs. State of Uttar Pradesh & Ors. (2010) 2 SCC 114 (paras 1- 9)].

13. This fact of suppression assumes more significance in a writ

proceeding which has been instituted under Article 226 of the

Constitution. The very basis of 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. The jurisdiction of the High

Court under Article 226 of the Constitution is extraordinary, equitable

and discretionary. It is well settled that a prerogative remedy is not a

matter of course and it is thus of utmost importance that a petitioner

approaching the Writ Court must come with clean hands and put

forward all the material facts without concealment or suppression. It

there is no frank and candid disclosure of the relevant and material

facts or that the petitioner is guilty of misleading the Court and the

petition is liable to be dismissed. In fact, the Courts have gone to the

extent of saying that in such circumstances, a Court may refuse to

enter into the merits of the case. A party whose hands are soiled

cannot hold the writ of the Court. In such situations, the aid of the

Court is denied in order to maintain respect for the law; in order to

promote confidence in the administration of justice; in order to

preserve the judicial process from contamination (Miscellany-at-Law

by R.E. Megarry, 2nd Indian Reprint 2004 at page-144). The rule has

evolved in public interest to deter unscrupulous litigants from abusing

the process of Court by deceiving it. In the facts and circumstances

aforesaid and in the light of the prayers in the petition, I am of the

view that the petitioners are guilty of misleading the Court and have

deliberately, intentionally and mischievously suppressed the order

dated 28 January, 2011 passed in Misc. Case No.26/2009.

14. The main thrust of the petitioners case rests on an order which the

petitioners allege is dated 30 December, 2016. It is alleged by the

petitioners that the order dated 30 December, 2016 ("the purported

order") was passed by the respondent no.5. It records that there is no

existence of a 'khatal' at the premises and that the premises does not

come within the purview of the Act. It is alleged by the petitioners that

the petitioners were handed over a copy of this order and had come to

learn that the premises was not within the purview of the Thika

Controller. I find that the purported order relied on by the petitioners

is undated and unsigned. Moreover, the purported order is in direct

conflict and contradiction with the earlier order dated 28 January,

2011. The pleading of the petitioners is that they were handed over a

copy of this order on 9 January, 2017. It does not appear whether the

petitioner company was a party to the proceeding in which the

purported order appears to have been passed. There are no other

details provided in the petition or the affidavit-in-reply. In paragraph

10 of the affidavit-in-reply, the petitioners allege that the purported

order came to be passed in matters which appears to have engaged

the attention of the respondent no.5. There are no particulars

whatsoever as to how and in which proceeding the purported order

came to be passed. The efforts which the petitioners have undertaken

to obtain the purported order are also suspicious. It is alleged in the

petition that the petitioners had filed an application under the Right to

Information Act before the State Public Information Officer in the

office of the respondent no.5 and have also annexed a copy of the

company to add credence to the authenticity of the entire exercise

undertaken by them. There is no mention in the purported order of

the proceedings being Misc. Case No.26/2009 nor of the order dated

28 January, 2011. The purported order proceeds as if Misc. Case

No.26/2009 and the order dated 28 January, 2011 never existed. I

find substance in the contention of the respondent no.5 that there are

serious issues regarding the veracity and the authenticity of the

purported order. In view of the aforesaid, I am unable to grant any

relief to the petitioners on the basis of the purported order. I am also

of the view that the petitioners have been unable to satisfy this Court

as to the genuineness and veracity of the purported order.

Significantly, neither of the respondents have accepted the existence

of the purported order far less its binding force. In fact, even the

respondent no.5 in its affidavit-in-opposition does not admit to the

purported order being passed.

15. In response to the queries of the petitioners and the KMC, the

respondent no.5 had by letters dated 27 February, 2018 and 10

January, 2018 replied that the original case records of the premises

were not presently available with the office of the respondent no.5. It

is a matter of some concern that this plea of the records not being

available or cannot be traced is often cited in matters which come to

Court. Section 114 (e) of the Evidence Act, 1872 provides that a Court

may presume that official acts have been regularly performed. This is a

rebuttable presumption. In the facts of the instant case, this plea

inspires more than a lurking doubt in my mind. In fact, it becomes

clear that in the absence of official records there is something wholly

irregular and unofficial in what is being relied on by the petitioners.

Importantly, who does the purported order benefit? Indisputably, only

the petitioners. Relying on the purported order, the petitioners are

able to circumvent the order dated 28 January, 2011 and also by pass

the proceedings being Misc. Case No.26/2009. The title of the

premises insofar as the petitioners are concerned becomes good, valid

and perfect. The vesting order in favour of the State is also given a go-

bye. In any event, the burden of proving that the purported order

exists and is valid and binding is squarely on the petitioners. I am of

the view that the petitioners have failed to overcome this hurdle.

Moreover, in view of the fact that the respondent no.5 in its affidavit

does not admit to the existence of the purported order, I am unable to

place any reliance on the same.

16. The other contentions of the petitioners are also liable to be rejected.

I find no merit in the contention that on the facts of this case the KMC

were statutorily obliged to automatically mutate the premises in the

name of the petitioner company. On the contrary, I am of the view that

in the light of the order dated 28 January, 2011 the KMC was fully

justified in seeking a clarification from the respondent no.5 before

taking any steps to mutate the premises in favour of the petitioner

company. I also reject the challenge made by the petitioners to the

order dated 28 January, 2011. Admittedly, the petitioners chose not

to avail of the statutory remedy available to them under Section 12 of

the Act. I find no force in the submission that the order dated 28

January, 2011 is void or non est in the eye of law. I also find no

jurisdictional error committed by the respondent no.5 in passing the

order dated 28 January, 2011. I am also of the view that not having

challenged the order dated 28 January, 2011 in the petition, the

petitioners ought not to be heard on the basis of a new case pleaded

in the affidavit-in-reply and not in the petition. In any event, I find

that any challenge to the order dated 28 January, 2011 is ex facie

barred by limitation. I also find the authorities cited by the petitioners

to be distinguishable and inapposite to the facts of this case.

Accordingly, I do not find a shred of merit in the case of the

petitioners.

17. Courts of law are meant for imparting justice between the parties.

One who comes to court must come with clean hands. Unfortunately,

there is a section of society whether property grabbers, tax evaders,

bank dodgers or other unscrupulous litigants from all walks of life

who have little respect for the law. Such persons find the process of

law as a convenient tool to pursue their ill designs. They have little or

practically no interest in the truth. They shamelessly resort to

falsehood and unethical means for achieving their goals. They are

neither interested in ecclesiastical or temporal acts (Chief Justice

Edward Coke) nor are they interested in "satya (truth) or "ahimsa"

(non-violence) [Dalip Singh vs. State of Uttar Pradesh & Ors. (2010) 2

SCC 114]. They only seek personal gain and self aggrandizement at

any cost. Such is their quest for their private gain that they do not

hesitate to resort to falsehood, misrepresentation, deceit, deception

and suppression in Court proceedings. No litigant is entitled to obtain

the aid of the law to protect him in carrying out a fraudulent act.

Fraud, of course invalidates all. As was said by Lord Mansfield C.J.

"Nothing is so silly as cunning".

18. In Sesa International Limited vs. Avani Projects and Infrastructure

Limited & Others (2017) 4 Cal.LT 524 a Division Bench of this Court

had held as follows:

40. It is with considerable regret and diffidence that it needs to be observed that the filter that was traditionally in place before a matter reached the court may have been considerably eroded in value and diluted in its moral content. The judiciary is not a system of a judges alone; the object of the exercise in a court is not to obtain an unworthy order or defeat a worthy cause - the pursuit is of justice. Even disregarding the utopian concept of justice, the fairness in the approach or procedure or outcome cannot be compromised or seen to be compromised so that the institution does not lose it relevance or pride of place in a constitutional democracy governed by the rule of law. Even though justice cannot be pursued in the adversarial system by ensuring the removal of injustice, the shared responsibility to prevent unjust causes being espoused in court cannot be shrugged off at the Bar. The judiciary cannot stand, far less remain upright, if either pillar of the Bench or the Bar falters.

42. There comes a time when a system must assert itself, if only to survive against the vicious onslaught of such unscrupulous litigants and their advisors as the present plaintiff. If dockets are not to be clogged with unworthy claims and false defences, litigants who carry vexatious causes must be appropriately dealt with in the award of costs.

19. In any event, it results in destruction of the Rule of Law if

punishment is not actually meted out where punishment is due. The

conduct of the petitioners is abhorrent, detestable and offensive. A

message must be sent to such litigants and their advisors. As Bowen

L.J. had observed "I have found in my experience that there is one

panacea which heals every sore litigation, and that is costs" (Cooper

vs. Smith (1884) 26 Ch.D 700 at 711, in a dissenting judgment). In

view of the deliberate act of suppression and non-disclosure of the

order dated 28 January, 2011 and the fraud practiced on this Court

costs are imposed at Rs.25 lacs (Twenty five lacs) to be paid by the

petitioners to the West Bengal State Legal Services Authority, Kolkata

within a month from the date of passing this order to be utilized for