Calcutta High Court (Appellete Side)
Somnath Dutta vs Howrah Municipal Corporation & ... on 19 March, 2021
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Before:
The Hon'ble Justice Subrata Talukdar
and
The Hon'ble Justice Hiranmay Bhattacharyya
MAT 1308 of 2018
With
CAN 8612 of 2018
Somnath Dutta
Vs.
Howrah Municipal Corporation & Ors.
For the Appellant : Mr. Partha Pratim Roy
Ms. Shebatee Datta ............... advocates
For the H.M.C. : Mr. N.C. Behani
Mrs. Papiya Banerjee Behani.....advocates
For the Respondent No.6 : Ms. Rakhi Shroff ..................... advocate
Heard on : 09.03.2021
Judgment on : 19.03.2021
Hiranmay Bhattacharyya, J.:-
The instant appeal is at the instance of the writ petitioner and
is directed against an order dated September 17, 2018 passed by a
Hon'ble Single Judge in WP No. 14240 (W) of 2018.
By the order impugned the writ petition was dismissed by the
Hon'ble Single Judge upon holding that the petitioner is guilty of
suppression of material fact and also that the petitioner did not
come with clean hands.
The appellant herein claims that the respondent no. 6 is the
owner of a premises which is adjacent to the premises of the
petitioner on the western side. The appellant alleges that the
respondent no. 6 is making construction without obtaining any
sanction plan from the Howrah Municipal Corporation (for short
"the HMC") and without leaving any open space on any side. The
appellant submitted a representation dated May 24, 2018 before the
HMC but the HMC did not take any action on the said
representation. Accordingly, the instant writ petition was filed
praying for demolition of the unauthorized construction at premises
no. 4/2, Shibu Chakraborty Lane, Bally, District-Howrah allegedly
raised by the respondent no. 6 herein.
The said writ petition was dismissed by the order dated
September 17, 2018. Being aggrieved the writ petitioner preferred
the instant appeal.
Mr. Partha Pratim Roy, the learned advocate for the appellant
contended that mere non-disclosure of the fact of filing of the title
suit no. 35 of 2013 by the appellant herein as well as the fate of
such suit in the writ petition, cannot be said to be a suppression of
material facts. He contended that the title suit was filed on the
ground of actionable nuisance caused by the respondent no. 6
herein and the HMC was not a party to such suit. He further
contended that the appellant herein has disclosed about the filing of
such suit and the fate of such suit in the application for temporary
injunction filed in connection with the instant appeal. He drew the
attention of the court to the copy of the judgment and decree
passed in such suit, a copy of which has been annexed to such
interlocutory application filed in connection with the instant appeal.
By referring to the averments made in the plaint and the reliefs
prayed for in the suit, Mr. Roy, contended that the cause of action
of the suit and the instant writ petition are entirely different and
non-disclosure of such fact does not amount to a suppression of a
material fact as the decision in the title suit cannot have any
bearing in the adjudication of the instant writ petition.
Mr. Roy further drew the attention of this Court to an
inspection report of the Sub-Assistant Engineer, HMC where in it
was indicated that there is no sanction building plan in respect of
the impugned construction. Mr. Roy, thus, contended that since it
is evident on inspection that the two storied construction has been
made without any sanction building plan, a direction should be
passed to demolish the same.
Mr. Roy placed reliance upon the following judgments of the
Hon'ble Supreme Court of India in the case of: (1) S.J.S Business
Enterprises (P) Ltd. vs. State of Bihar and Ors. reported at (2004)7
SCC 166 and (2) Arunima Baruah vs. Union of India and ors.
reported at (2007)6 SCC 120 in support of his contention that mere
nondisclosure of a fact cannot be a ground for dismissal of the writ
petition unless such fact is a material one.
Mr. Bihani learned advocate for the HMC submitted that a
stop work notice under Section 177 (1) of the Howrah Municipal
Corporation Act, 1980 has already been issued directing the
respondent no. 6 and one Gouri Bera to forthwith stop the
construction work. Mr. Bihani contended that the HMC has taken
steps in accordance with law after it came to the notice of the said
authority that a construction has been made at the said premises
without any sanction plan. Mr. Bihani further contended that the
appellant herein approached the Civil Court for an identical relief
and having failed in his attempt have now approached the Writ
Court on the self same cause of action. He, thus, supported the
order of dismissal of the writ petition passed by the Hon'ble Single
Judge on the ground of suppression of material facts.
Ms. Shroff learned advocate for the respondent no. 6 seriously
disputed the contentions raised by Mr. Roy. She contended that the
appellant filed the Title Suit no. 35 of 2013 before the learned Civil
Judge (Junior Division) First Court at Howrah for declaration and
permanent injunction. Such suit was dismissed by the Learned
Civil Judge. She contended that the appellant herein filed the
instant writ petition with an oblique motive by totally suppressing
the fact of filing of a title suit and the dismissal thereof by the Civil
Court. She contended that such fact was a material fact and the
Hon'ble Single Judge was justified in dismissing the instant writ
petition on the ground of suppression of material fact. She
submitted that the instant appeal is liable to be dismissed and the
appellant herein is not entitled to any relief as he is guilty of
suppression of material facts.
We have heard the learned advocates for the respective parties
and perused the materials placed before us.
The appellant herein filed the Title Suit no. 35 of 2013 alleging
that the respondent no. 6 herein is making construction in violation
of the Municipal Building Rules and Regulations. The appellants
further alleged therein that the respondent no. 6 did not leave
adequate space on four sides as per the building rules. It was also
alleged that as a result of such illegal and unauthorised
construction the appellant is deprived of free flow of air and light
into his premises.
The specific allegation of the appellant in the writ petition is
that the respondent no. 6 is making illegal construction without
leaving any open space on any sides, in accordance with the
Howrah Municipal Corporation Building Rules. It was, further,
alleged that the said construction was being raised without any
sanction plan. It was also alleged that the illegal construction raised
by the respondent no. 6 is diminishing the passage of air and light
into the appellant's premises.
Thus, it is evident from the averments made in the plaint that
the cause of action for filing the suit is same and identical with that
of the writ petition.
The suit filed by the appellant was dismissed by a judgment
and decree dated January 15, 2018. Long thereafter the writ
petition was filed sometimes in August, 2018. In the writ petition
the appellant herein has suppressed the fact of filing of such suit
and also that the same was dismissed.
The judgment and decree passed in such suit has a material
bearing upon the adjudication of the instant writ petition.
Suppression of such fact by the appellant herein disqualifies him
from obtaining any relief in the instant writ petition as rightly
observed by the Hon'ble Single Judge in the order impugned. Such
guilt cannot be wiped off by the appellant herein merely by
producing a copy of the judgment and decree passed in such suit at
the appellate stage.
In S.J.S Business Enterprises (supra) the Hon'ble Supreme
Court held that suppression of the fact of filing of the suit cannot be
said to be a suppression of material fact as in the said reported case
the suit was withdrawn prior to the date of hearing of the writ
petition.
In Arunima Baruah (supra,) the application for withdrawal of
the suit was filed prior to the date of preliminary hearing of the writ
petition and the order permitting withdrawal of the suit was passed
immediately after direction for issuance of notice in connection with
the writ petition was passed. On such facts also the Hon'ble
Supreme Court of India while upholding the judgments of the
Learned Single Bench and the Division Bench of the High Court
held that in a case of such nature the court's jurisdiction under
Article 226 of the Constitution of India may not be invoked but in
the event a fresh writ petition is filed disclosing all the facts, the
same may be considered on its own merit.
However, in both the aforesaid decisions cited by Mr. Roy, the
suits were withdrawn prior to the hearing of the writ petition and as
such there was no adjudication on merits in the suits concerned.
In the instant case, the suit filed by the appellant herein was
dismissed on a contested hearing thereby conclusively determining
the rights of the parties in such suit. Thus, the aforesaid judgments
cited by Mr. Roy do not have any manner of application to the facts
of the instant case.
It is trite law that a court can refuse to exercise its
discretionary jurisdiction if a party is guilty of suppression of
material facts. This Court is of the considered opinion that the filing
of a Title Suit and its decision are material facts for the purpose of
adjudication of the instant writ petition. A person invoking the
discretionary jurisdiction of the Court cannot be allowed to
approach it with a pair of dirty hands.
For the reasons as aforesaid this court is of the view that the
impugned order does not suffer from any infirmity. MAT 1308 of
2018 thus stands dismissed. CAN 8612 of 2018 also stands
disposed of accordingly. There shall, however, be no order as to
costs. It is, however, clarified that the dismissal of the instant
appeal shall not preclude the parties including the Howrah
Municipal Corporation from taking further steps in accordance with
law with regard to the impugned construction at premises no. 4/2,
Shibu Chakraborty Lane, Bally, Dist- Howrah 711 201.
All parties shall act in terms of the copy of the order
downloaded from the official website of this Court.
Urgent photostat certified copies, if applied for, be supplied to
the parties upon compliance of all formalities.
I agree.
(Subrata Talukdar, J.) (Hiranmay Bhattacharyya, J.)
