Shri Krishna Janmotsav Samiti ... vs Mcd & Anr.
2011 Latest Caselaw 3667 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        W.P.(C) 2932/2011

                                                 Reserved on : 20.07.2011
                                                 Decided on : 02.08.2011
IN THE MATTER OF :

SHRI KRISHNA JANMOTSAV SAMITI PUNJABI BAGH (REGD.)
                                                      ..... Petitioner
                   Through: Mr. Harish Malhotra, Sr. Advocate
                   With Mr. Sachin Midha, Advocate

                   versus

MCD & ANR.                                             ....Respondents
                         Through: Mr. Sudhir Nandrajog, Sr. Advocate with
                         Mr. Ajay Arora and Ms. Saroj Bidawat, Advocates
                         for MCD
                         Mr. N.K. Kaul, Sr. Advocate with Mr. P.D. Gupta,
                         Mr. Kamal Gupta & Mr. Abhishek Gupta,
                         Advocates for respondent No.3.


CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may          Yes
        be allowed to see the Judgment?

     2. To be referred to the Reporter or not?         Yes

     3. Whether the judgment should be                 Yes
        reported in the Digest?


HIMA KOHLI, J.

1. The present petition is filed by the petitioner/Society praying

inter alia for quashing of the impugned order dated 19.4.2011 passed by

respondent no. 2/Deputy Director (Horticulture) MCD, cancelling the

booking made by the petitioner/Society in respect of three parks situated

in Punjabi Bagh, Delhi, for the purpose of celebrating Janmashtmi

Mahotsav from 11.7.2011 to 30.8.2011. It is further prayed that

respondent No. 1/MCD be restrained from issuing permission to any other

entity, to use the said parks for the aforesaid period.

2. The brief facts of the case are that as per its policy,

respondent No.1/MCD grants permission to parties for booking of parks

and function sites at various places in Delhi, including the lawns at

Punjabi Bagh Stadium for the purposes of holding social, cultural and

religious functions/gatherings. As per its Circular dated 7.9.2010,

respondent No.1/MCD revised the rates and some procedures for booking

the parks. One of the conditions imposed for booking of the parks was the

requirement of obtaining the consent of the area Councillor or the Mayor

of Delhi. It is the case of the petitioner/Society that on 15.11.2010, it

applied to respondent No.1/MCD for booking of three lawns at Punjabi

Bagh Stadium between 11.7.2011 to 30.8.2011, for holding celebrations

on the occasion of Shri Krishna Janmashtmi. Prior to that, on

21.10.2010, the petitioner/Society applied to the Mayor, Delhi for his

recommendation, which was granted to it on 24.10.2010. The booking

was processed by respondent No.1/MCD after obtaining the approval from

the Commissioner, MCD on 19.1.2011. Thereafter, as per the

petitioner/Society, it deposited the booking amount totaling to `61,030/-

with respondent No.1/.MCD. However, the petitioner/Society claims that

in April, 2011, it came to know from some reliable sources that

respondent No.1/MCD was proposing to cancel the said booking in its

favour and proceeding to grant the same to some other party.

Apprehending such an action on the part of respondent No. 1/MCD, the

petitioner/Society issued a legal notice dated 9.4.2011 to respondent

No.1/MCD seeking to restrain it from allotting the said parks to some

other entity. Thereafter, it received the impugned letter dated 19.4.2011

issued by respondent No.2, informing that the booking done by it for the

three parks for the period from 11.7.2011 to 30.8.2011 was cancelled,

and the booking amount of `61,030/- was being refunded. Aggrieved by

the said order of cancellation, the petitioner/Society has approached this

Court through the present petition, filed on 3.5.2011.

3. On 4.5.2011, notice was issued in the present petition

returnable on 30.5.2011. On the same date, an interim order was passed

directing that till the next date of hearing, status quo be maintained. On

30.5.2011, an application (C.M. No.7980/2011) was filed by Shree

Krishna Janmashtmi Mahotsav Samiti (Regd.), Punjabi Bagh

(subsequently impleaded as respondent No.3), praying inter alia for

impleadment and directions. In the said application, it was averred that

the applicant had been celebrating Janmashtmi in Delhi continuously

every year for the past 34 years and for the last 16 years, the three parks

situated at Punjabi Bagh were being booked by it. It was further

submitted that as per the usual practice, on 21.3.2011, the applicant

approached the local Municipal Councillor to obtain his consent for

booking the parks in question. On 5.4.2011, the applicant was also

recommended by the Mayor of Delhi for the said booking and thereafter

on 19.4.2011, booking receipts were issued by respondent No.1/MCD in

this regard. It was averred that the petitioner/Society was fully aware of

the aforesaid facts on the date when the writ petition was instituted and it

deliberately failed to implead the applicant as a co-respondent, though it

was a necessary and proper party in the present proceedings. As a

result, an application for impleadment was filed, along with another

application (C.M.No.7981/2011) praying inter alia for dismissal of the writ

petition filed by the petitioner/Society.

4. Notice was issued in the aforesaid applications, vide order

dated 30.5.2011, returnable for the date fixed, i.e., on 13.9.2011. In the

meantime, the petitioner/Society filed yet another application (C.M.

No.9413/2011) for stay, which was listed on 7.7.2011, and notice was

issued thereon, returnable for the date fixed. On 14.7.2011, a third

application (C.M.No.9883/2011) for stay was filed by the

petitioner/Society, but in the course of submissions, an oral prayer was

made on behalf of the petitioner/Society for advancing the date of hearing

which was duly acceded to and the matter was directed to be listed on

19.7.2011 for addressing arguments. On 19.7.2011, in view of a no

objection given by the petitioner/Society to the impleadment of Shree

Krishna Janmashtmi Mahotsav Samiti (Regd.), Punjabi Bagh, the said

application was allowed and the Samiti was impleaded as respondent No.3

in the present proceedings. Both the parties also agreed that due to

paucity of time and in view of impeding Janmashtami celebrations, the

submissions made in the said application would be treated as a counter

affidavit of respondent No.3/Samiti.

5. The main contention of Mr. Harish Malhotra, learned Senior

Advocate appearing for the petitioner/Society was that the petitioner/

Society had been informed that the three parks were allotted by

respondent No.1/MCD on a first-come-first-serve basis, because of which

it had applied for the use of the parks for the purpose of Janmashtmi

celebrations well in advance. Having been granted such permission by

respondent No. 1/MCD, it could not have cancelled the booking

unilaterally without affording an opportunity of hearing to the

petitioner/Society. It was contended that by doing so, respondent

No.1/MCD had violated the principles of audi alteram partem, i.e., having

failed to give a hearing to the petitioner/Society before taking an action

which adversely affected it. Thus, the impugned letter dated 19.4.2011

issued by respondent No.1/MCD, cancelling the booking of the

petitioner/Society was sought to be set aside.

6. Counsel for respondent no.1/MCD submitted that the grant of

permission to the petitioner/Society to use the three lawns at Punjabi

Bagh, was done under a mistaken impression that the petitioner/Society

was the same society which had been conducting the Janmashtmi

celebrations in the said parks for the past 34 years. It was stated that

though the petitioner/Society got registered on 18.11.2010, it applied to

the Mayor of Delhi prior thereto on 15.11.2010, for being recommended

to book the three lawns in question to celebrate Krishna Janmashtmi in

the year 2011. On 21.3.2011, respondent No.3/Samiti made a

representation to the area Councillor to book the aforementioned lawns in

their favour for conducting the Krishna Janmashtmi Mahotsav

celebrations. Vide letter dated 5.4.2011, the area Councillor

recommended the name of respondent No.3/Samiti for booking the lawns

from 11.7.2011 to 1.9.2011. The matter was thereafter discussed by the

area Councillor with the Mayor or Delhi during which discussions, the

latter stated that the petitioner/Society had misguided him by stating that

they had been celebrating Janamshtmi in these lawns for the last many

years which was factually inaccurate and based on their

misrepresentation, he had mistakenly recommended the name of the

petitioner/Society for booking the lawns. Vide letter dated 5.4.2011, the

Mayor of Delhi admitted the aforesaid error and requested respondent

No.1/MCD to allot these lawns in the name of respondent No.3/Samiti, as

recommended by the Local Councillor, instead of the petitioner/Society.

Consequently, the booking made in favour of the petitioner/Society was

cancelled and the amount deposited by it was refunded by respondent

No.1/MCD on 19.4.2011. Further, on the recommendation of the area

Councillor and the Mayor of Delhi, also supported by the recommendation

of one Member of Parliament and the MLA of the area, the booking of the

three lawns was done in favour of respondent No.3/Samiti on 19.4.2011,

with the approval of the Commissioner, MCD.

7. Mr. Neeraj Kishan Kaul, learned Senior Advocate appearing

for respondent No.3/Samiti urged this Court to dismiss the writ petition

on the ground that on the date of its institution, the same had been

rendered infructuous in view of the fact that respondent No.1/MCD had

already cancelled the allotment in favour of the petitioner/Society and

allotted the parks in question in favour of respondent No.3/Samiti, which

fact the petitioner/Society was very well aware of, but had intentionally

withheld from the Court. It was further submitted that the status quo

order passed on 4.5.2011 would have in any case meant that the parks

having been allotted to respondent No.3/Samiti on 19.04.2011, the

booking made by the latter would be maintained. It was canvassed on

behalf of respondent No.3/Samiti that apart from it being infructuous, the

writ petition also suffered from suppression of material facts. Learned

counsel for respondent No.3/Samiti contended that the petitioner/Society

had failed to reveal to this Court the factum of a round of litigation

between the parties, which took place as recently as in the year 2010,

when one Shri Bal Krishan Aggarwal, former General Secretary of

respondent No.3/Samiti filed a civil suit for injunction and declaration on

the original side of this Court, registered as CS(OS) No.1155/2010,

against the office bearers of respondent No.3/Samiti and other trustees,

claiming inter alia that he and his group of supporters and associates

were entitled to conduct the Janmashtmi celebrations on behalf of

respondent No.3/Samiti. However, the said suit ended in a compromise

duly reduced into writing (Annexure PA-1 to C.M. No.7980/2011), wherein

apart from other terms and conditions of settlement, it was agreed

between the parties, i.e., the two rival groups, identified as Group A led

by Shri Bal Krishan Aggarwal and his associates (plaintiffs in the suit) and

Group B led by Shri Amrit Singhala and his associates (defendants in the

suit), that the affairs of Janmashtmi Mahotsav Samiti would be handed

over to Group B and its office bearers, who would celebrate Janmashtmi

at the Punjabi Bagh parks without any interference or intervention from

Group A. It was further agreed that Group A would form a new

trust/society and be entitled to take over the Dharamshala plot situated

at Vrindavan which was registered in the name of respondent

No.3/Samiti. In the compromise, Group A specifically undertook not to

celebrate Janmashtmi in Punjabi Bagh for a period of two years.

8. It was the contention of the learned counsel for respondent

No.3/Samiti that after the aforesaid agreement was signed by Group A

and Group B, it was duly acted upon, inasmuch as the pending civil suit

filed by Shri Bal Krishan Aggarwal was withdrawn and in furtherance to

the compromise, a Trust was formed by Group A in the name of Shree

Krishna Nishkaam Charitable Trust (Regd.) (hereinafter referred to as

`Nishkaam Trust'), Punjabi Bagh which got the Dharamshala plot at

Vrindavan registered in its name. Later on, with the mala fide intention

of wriggling out of the aforesaid settlement, four of the founder trustees

of the aforesaid Nishkaam Trust became office bearers of the

petitioner/Society, i.e., Shree Krishna Janmotsav Samiti, Punjabi Bagh

(Regd.), which got itself registered with the Registrar of Societies on

18.11.2010. Attention of the Court was drawn to a copy of the resolution

filed with the writ petition and typed out on the letter head of the

petitioner/Society which reveals that four of the office bearers of the

petitioner/Society, namely, Shri Ram Rishi Goel, Shri Satnarayan Mittal,

Shri Manoj Garg and Shri Vinod Bansal, are also prominent members of

the Nishkaam Trust, as is apparent from a perusal of the Brochure of the

said Trust (Annexure A-4 to C.M.No.7980/2011). It was argued that the

members of the aforesaid petitioner/Society, being also members of

Group A, knowing fully well that they were bound by the terms of the

compromise recorded in the civil suit, and that they could not have held

the Krishna Janmashtmi celebrations at the lawns at Punjabi Bagh for a

period of two years, sought to frustrate the settlement by floating the

petitioner/Society in November 2010 and further, adopted a name

deceptively similar to that of respondent No.3/Samiti, with the sole

intention of deceiving the public at large and for taking advantage of the

name and goodwill of respondent No.3/Samiti built over the past 34

years. Counsel for respondent No.3/Samiti submitted that even though

the registered office of the petitioner/Society was situated at Paschim

Vihar, Delhi, in a devious manner, it had adopted the name of "Shri

Krishna Janmotsav Samiti (Regd.)", with a suffix "Punjabi Bagh", added to

the name so as to create confusion in the public at large since the

registered office of respondent No.3/Samiti is actually situated at Punjabi

Bagh and it too has the suffix "Punjabi Bagh" after its name.

9. It was contended on behalf of respondent No.3/Samiti that by

taking advantage of its name sounding similar to that of respondent

No.3/Samiti, the petitioner/Society had successfully misrepresented itself

to be respondent No.3/Samiti before the Mayor of Delhi and had obtained

his recommendation for booking the parks in question to hold Janmashtmi

celebrations there in this devious manner. It was only in March 2011

when respondent No.3/Samiti got wind of the deliberate

misrepresentation made by the petitioner/Society that the same was

brought to the notice of the Mayor of Delhi, who withdrew his earlier

recommendation in favour of the petitioner/Society and instead

recommended cancellation of the booking done in its favour. In the

subsequent letter dated 5.4.2011 addressed by the Mayor, Delhi to

DC(West), it was stated that respondent No.3/Samiti had been

celebrating Janmashtmi in the parks in Punjabi Bagh for the last number

of years and it was by mistake that a recommendation had been issued in

favour of the petitioner/Society for booking the same park.

10. It was next submitted by the learned Senior Advocate for

respondent No.3/Samiti that the petitioner/Society was all along aware of

the fact that as on the date of filing the writ petition, i.e., on 3.5.2011,

the parks in question had already been allotted to respondent

No.3/Samiti, which fact was deliberatedly withheld from the Court. In

support of the said submission, the attention of this Court was drawn to

ground (iv) of the grounds taken in the writ petition which reads as

below:-

"(iv) Because a bare perusal of the impugned action of the respondent No.1 in revoking the permission granted to the petitioner and granting the same to the respondent No.3 who had admittedly applied much after the petitioner shows that the petitioner has been discriminated and it is clear case of bias. The same makes the impugned action of the respondents discriminatory and thus liable to be set aside by this Hon'ble Court as the same is unreasonable and amount to bias and arbitrariness." (emphasis added)

11. Counsel for respondent No.3/Samiti urged that having regard

to the fact that the petitioner/Society had initially impleaded only the MCD

as respondent No.1 in the present proceedings and there being no

respondent No.3 arrayed in the list of respondents, there was no question

of mentioning "respondent No.3" in ground (iv) and fact of the matter was

that respondent No.3/Samiti had intentionally not been made a party in

the present proceedings so as to mislead the court and deliberately

withhold certain material facts from it. Continuing in the same strain, it

was submitted that the relief framed under prayer (b) of the writ petition,

calling upon the court to restrain respondent No.1/MCD from issuing any

permission in respect of the lawns in question to any other entity, could

not have been sought on the date of institution of the writ petition unless

the petitioner/Society was aware of the fact that allotment of the parks in

question had already been made in favour of respondent No.3/Samiti.

The fact that on the date of filing of the writ petition, the

petitioner/Society was quite aware that allotment of the said parks had

already been made in favour of respondent No.3/Samiti would mean that

the writ petition itself had been rendered infructuous on the very date of

filing.

12. In rebuttal, counsel for the petitioner/Society vehemently

denied that the petitioner/Society had deliberately suppressed material

information from the court or that the writ petition was infructuous on the

date of its institution. It was urged that as per the guidelines of the MCD,

the petitioner/Society was only required to file an application with

respondent No.1/MCD with the recommendation of the Mayor/Municipal

Councillor of the area, which it did, and that merely because on the date

of submitting an application to the Mayor of Delhi for his

recommendation, i.e., on 15.11.2010, the petitioner/Society was not

registered as a society, would not be a sufficient ground to disqualify it

from being allotted the park in question. It was further submitted that by

the date when the recommendation was given by the Mayor, i.e., by

24.11.2010, the petitioner/Society had already been registered on

18.11.2010. It was reiterated that once the allotment had been made by

respondent No.1/MCD in favour of the petitioner/Society, the same could

not have been withdrawn without affording an opportunity of hearing to

it. The petitioner/Society asserted that it was not set up by the Bal

Krishan Aggarwal Group and in any event, the civil litigation between the

said Group and respondent No.3/Samiti was not before the MCD when it

cancelled the allotment, hence it would be inconsequential for the present

proceedings. In the course of arguments, learned Senior Advocate for

the petitioner/Society also handed over a list of 40 members of "Group

A", as described in the written compromise agreement enclosed with the

application filed by Shri Bal Krishan Aggarwal for withdrawing the civil

suit, to contend that that the names of about 12-13 members of the said

Group find mention in the invitation cards got printed by respondent

No.3/Samiti for holding the Janmashtmi Celebrations at Punjabi Bagh and

as a matter of fact, they now form a part of respondent No.3/Samiti,

which also amounts to violating the compromise arrived at between the

two groups. He submitted that the compromise agreement between

Sh.Bal Krishan Aggarwal and respondent No.3/Samiti was only a bogey

raised by respondent No.3/Samiti to mislead this Court and the status

quo order dated 4.5.2011 could not be interpreted against the

petitioner/Society. The mention of respondent No.3 in Ground (iv) of the

grounds taken in the writ petition, was sought to be shrugged of as

insignificant and as a mere typographical error.

13. This Court has heard the counsels for the parties and has

perused the documents placed on record. The two fold submission on the

part of respondent No.3/Samiti is that the present writ petition is liable to

be dismissed on the ground that the same had been rendered infructuous

on the date of its institution and secondly, on the ground that the

petitioner/Society had deliberately suppressed and concealed material

facts from this Court, including the factum of the recent civil litigation

between the parties, which itself would be a disqualification for it to

invoke the extraordinary jurisdiction of this Court under Article 226 of the

Constitution of India.

14. It is a settled law that when a party approaches the High

Court and seeks the invocation of its jurisdiction under Article 226 of the

Constitution of India, it must place on record all the relevant facts before

the Court without any reservation. In exercising its discretionary powers

and extraordinary jurisdiction under Article 226 of the Constitution of

India, the High Court not only acts as a court of law, but also as a court of

equity. Therefore, in case there is a deliberate concealment or

suppression of material facts on the part of the petitioner or it transpires

that the facts have been so twisted and placed before the Court, so as to

amount to concealment, the writ court is entitled to refuse to entertain

the petition and dismiss it without entering into the merits of the matter

[Refer: Prestige Lights Ltd. vs. State Bank of India (2007) 8 SCC 449].

The judgment of the Kings Bench in the case of R. vs. Kensington Income

Tax Commrs. reported as (1917) 1 KB 486 highlighted the object

underlying the aforesaid principles in the following manner:-

"[I]t 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 - 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."

15. After taking note of the aforesaid judgment in the case of

Prestige Lights Ltd. (supra), the Supreme Court held as below:-

"35. 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. (emphasis supplied)"

16. In the case of K.D. Sharma vs. SAIL reported as (2008) 12

SCC 481, it was observed that the jurisdiction of the Supreme Court

under Article 32 and of the High Court under Article 226 of the

Constitution of India is extraordinary, equitable and discretionary. 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.

17. Taking note of the aforesaid judgment and a number of

judgments on the same lines, the opening lines in a recent decision of the

Supreme Court in the case of Dalip Singh vs. State of Uttar Pradesh &

Ors. reported as (2010) 2 SCC 114 read as below:-

"1. For many centuries Indian society cherished two basic values of life i.e. "satya" (truth) "ahinsa" (non-violence). Mahavir, Gautam Budha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences.

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.

2. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and 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. (emphasis supplied)"

18. In the case at hand, on a perusal of the pleadings of the

parties and submissions made by both sides, this Court finds that several

material facts which were well within its knowledge, have been

suppressed by the petitioner/Society. In the first instance, the

petitioner/Society did not disclose to this Court the factum of the recent

litigation between certain members of respondent No.3/Samiti led by Shri

Bal Krishan Aggarwal (Group A) and the respondent No.3/Samiti itself,

which was pending adjudication on the original side of this Court and was

settled through a compromise as recently as last year. It is not denied

that out of the seven office bearers mentioned on the letterhead of the

petitioner/Society, enclosed as Annexure A-15 to the writ petition, four of

the members namely, Shri Satyanarayan Goyal (Up-Pradhan), Shri

Ramrishi Goyal (Mahamantri), Shri Vinod Bansal (Koshadhyaksha) and

Shri Manoj Garg (Sadasya) are trustees of Nishkaam Trust floated by the

same Group A, after it entered into the compromise in CS(OS)

1155/2010 entitled Shri Krishna Janmashtami Mahotsav Samiti vs.

Amrit Singla & Ors., wherein Group A undertook not to hold a separate

Janmashtmi Celebrations in Punjabi Bagh for a period of two years, while

conceding therein that Group B (respondent No.3/Samiti herein) would

take over the affairs of the Samiti and the office bearers of the said group

would celebrate Janmashtmi in Punjabi Bagh without any interference

from Group A.

19. Secondly, the petitioner/Society did not reveal to the Court

the fact that on the date of institution of the present writ petition, i.e., on

03.05.2011, it was conscious of the fact that the three parks in Punjabi

Bagh had already been allotted by respondent No.1/MCD to respondent

No.3/Samiti. The argument of the counsel for respondent No.3/Samiti is

well founded that there is no justification for the petitioner/Society to

have mentioned "respondent No.3" in ground (iv) of the grounds taken in

the writ petition if it had been unaware of the allotment of the park in

favour of respondent No.3/Samiti, particularly, when originally only two

respondents were arrayed in the Memo of Parties, while excluding

respondent No.3/Samiti. For the petitioner/Society to seek to casually

brush away the mention of "respondent No.3" in ground (iv) as a

typographical error is untenable and unacceptable for the reason that

ground (iv) makes a mention of "respondent No.3" in the context of

revocation of permission granted to the petitioner/Society by respondent

No.1 and grant of the same to "respondent No.3" and further elucidates

that the said respondent No.3 had "admittedly applied much after the

petitioner". This Court is inclined to agree with the submission of learned

counsel for respondent No.3/Samiti that in the course of finalizing the

petition, the petitioner/Society slipped up by maintaining ground (iv) as it

was while overlooking the fact that there was no mention of respondent

No.3 in the body of the petition and prayer clause (b) was carefully

drafted in an ambiguous manner by seeking to restrain respondent No.1

from issuing any permission in respect of the three lawns for the period

from 11.07.2011 to 30.08.2011 "in favour of any other entity", instead of

"respondent No.3."

20. Lastly, in the course of addressing arguments on 19.07.2011,

learned counsel for respondent No.3/Samiti had particularly drawn the

attention of this Court to an individual sitting in the second row of the

Court who was instructing the counsel for the petitioner/Society as also

the Senior Advocate engaged by the petitioner/Society and had been

identified as one Mr. Pawan Garg, who, it was submitted, was a part of

the list of Group A members. The identity of the said person was not

denied by the counsel for the petitioner/Society. The question which has

remained unanswered is that if the petitioner/society had no connection

with the aforesaid Group A members, as claimed by it, then why would

the aforesaid gentleman be present in Court to instruct the counsels

engaged by the petitioner/society. Pertinently, the name of Shri Pawan

Garg finds mention at Sr.No.7 as one of the signatories to the compromise

recorded in the civil proceedings initiated by Shri Bal Krishan Aggarwal(Annexure

A-3). His name also features at Sr.No.28 of the list of Group A members

handed over by the counsel for the petitioner/Society the very next day,

i.e., on 20.07.2011. At the relevant time, the said Shri Pawan Garg was

holding the post of Treasurer of respondent No.3/Samiti.

21. All the above is a pointer to the fact that the petitioner/Society is

actually a front for Group A led by Sh.Bal Krishan Aggarwal and once the

veil is pierced, then it becomes clear that the petitioner/society is only an

alter ego of the same Group A. The attempt on the part of the

petitioner/Society to counter the above by submitting that the names of

12-13 persons mentioned in the list of Group A members, also find

mention in the invitation card recently printed by respondent No.3/Samiti

itself, cannot take its case any further for the reason that as per the

petitioner/society, the two entities are entirely different from each other.

If at all anybody can have a grievance in that regard, it is the same Group

A and not the petitioner/Society herein, which has taken a stand that it

has no connection with Group A or with the previous litigation between

the parties. This is the third material fact, which has also weighed with

this Court in its decision to decline to exercise its discretion under Article

226 of the Constitution of India in favour of the petitioner/Society.

22. When all the aforesaid fragments of events are gathered and

assembled on the factual canvas, the picture that emerges, leaves this

Court with a clear impression that in order to wriggle out of the

compromise arrived at between the two rival groups, who were a part of

respondent No.3/Samiti earlier and who had become signatories to the

settlement recorded in CS(OS) 1155/2010, wherein there was a specific

condition imposed on Group A that it would not hold a separate

Janmashtmi celebration in Punjabi Bagh for a period of two years and that

Group B alone would be entitled to celebrate Janmashtmi in Punjabi Bagh,

the petitioner/Society was got registered in a span of less than four

months from the date on which the suit was withdrawn by Shri Bal

Krishan Aggarwal, for it to lay a claim on the same three lawns at Punjabi

Bagh, where respondent No.3/Samiti has admittedly been celebrating Shri

Krishna Janmotsav for the past over 16 years. Curiously enough, there is

not a whisper of all the aforesaid events in the writ petition and had

respondent No.3/Samiti not entered appearance and sought impleadment

in the present proceedings, this Court would never have got the wind of

it. The submission made on behalf of the petitioner/society that the

aforesaid facts were not before the respondent/MCD when it canceled the

allotment of the three parks made in favour of the petitioner/society is

contrary to the stand taken by the respondent/MCD in its reply, where the

circumstances under which the parks being initially booked in favour of

the petitioner/society and then cancelled, have been spelt out in detail.

23. It is well settled law that relief under Article 226 of the

Constitution of India is discretionary in nature and a petitioner, who

approaches the Court for such a relief must freely, frankly and fully

disclose all material facts and if she/he fails to do so and conceals the

same, her/his petition is liable to be dismissed. In view of the above facts

and circumstances, this Court refuses to entertain the present petition.

As the petitioner/Society has not approached this Court with clean hands

and has failed to candidly disclose all the facts, which were in its

knowledge and were quite material, the petition is dismissed without

going into the merits of the claim of the petitioner, while quantifying the

costs as `10,000/- payable in equal shares to respondent No.1/MCD and

respondent No.3/Samiti.

                                                             (HIMA KOHLI)
AUGUST 02, 2011                                                  JUDGE
mk/pm/rkb