Jatinder Sardana & Anr. vs Delhi Development Authority & ...
2014 Latest Caselaw 585 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

            W.P.(C) 258/2014 & CM No.507/2014


                                                     Decided on : 30.01.2014

IN THE MATTER OF
JATINDER SARDANA & ANR.                                   ..... Petitioners
                              Through : Mr. Sanjeev Sindhwani,
                              Sr. Advocate with
                              Mr. Praveen Chauhan, Advocate

                        versus

DELHI DEVELOPMENT AUTHORITY & ANR.                   ..... Respondents
                       Through : Mr. Arjun Pant, Advocate for R-1.
                       Mr. P.C. Dhingra, Advocate for R-2.

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (ORAL)

1. The present petition has been filed by the petitioners praying inter alia

for cancellation of a Conveyance Deed dated 12.8.2013 issued by the

respondent No.1/DDA in favour of the respondent No.2.

2. On the last date of hearing, counsel for the petitioners was asked to

address the Court on the maintainability of the present petition as it was

observed that disputed question of facts have been raised therein that

cannot be determined in writ proceedings. Mr. Praveen Chauhan, learned

counsel for the petitioners had sought an adjournment to enable him to

examine the said issue and seek instructions from his clients. At his

request, the matter was adjourned for today.

3. Today, Mr. Sanjeev Sindhwani, Senior Advocate appears for the

petitioners and states that he has instructions to argue the present petition

which he states is very much maintainable.

4. On the other hand, learned counsel enters appearance for the

respondent No.2 states that the petitioners have withheld material

information and deliberately failed to inform the court that much prior to

filing the present petition, they along with Smt. Sushila Arora, their sister,

had entered into an Agreement to Sell with one Mr. Murari Mirchandani in

respect of the subject premises on 11.4.2012 for a total sale consideration of

`14.25 lacs against which amount, they had received earnest money to the

tune of `60.00 lacs. He hands over a set of documents, including copy of

an Agreement to Sell dated 11.4.2012, executed by the petitioners in favour

of one Mr. Murari Mirchandani in respect of the subject premises bearing

No.S-94, Panchsheela Park, New Delhi. The documents handed over by the

counsel for the respondent No.2, with an advance copy to the other side, are

taken on record.

5. On enquiry from Mr. Sanjeev Sindhwani, Senior Advocate appearing

for the petitioners, as to whether the petitioners have made any averment

in the writ petition in respect of the aforesaid document executed by them

for selling the subject premises by describing themselves as the legal heirs

of late Shri Surinder Sardana and owners of the subject premises when,

respondent No.2 remains the recorded owner of the subject premises till

date, he concedes that there is no such averment made in the writ petition.

6. On a perusal of the list of dates and events enclosed with the petition,

that runs into 10 pages starting from the date, 8.12.1967 and concluding on

3.1.2014, when the present petition came to be filed, it is apparent that the

petitioners have conveniently skipped over the date, 11.4.2012, when they

had executed the aforesaid Agreement to Sell in respect of the subject

premises.

7. The significant dates that had occurred in the year 2012 and have

been mentioned by the petitioners in the list of dates and events includes

6.2.2012, when Smt. Sangeeta Bhambani, niece of the petitioners had

instituted a civil suit against them for partition of the subject property

claiming 1/7th share therein. While skipping over the month of April, 2012,

the next relevant date mentioned by the petitioners in the list of dates is

25.5.2012, when it is stated that the respondent No.1/DDA had given a final

opportunity to them to file a reply to its letter dated 18.11.2011, calling

upon them to furnish the original documents of the subject premises.

Thereafter, the petitioners go on to refer to various other events that they

consider relevant for adjudication of the present petition which fell in the

months of June, August and December, 2012.

8. What emerges from the above is that the petitioners have withheld the

factum of having executed an Agreement to Sell dated 11.4.2012 in respect

of the subject premises in favour of a third party, without even a whisper

thereof made by them either in the body of the petition, or in the list of

dates and events or even by filing the said document on record, more so

when the paper book of the petition runs into 243 pages comprising of 32

annexures. This itself speaks volume about the bonafides of the petitioners.

9. It is settled law that when a party approaches the High Court and

seeks 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, if it is

found that there is a deliberate concealment or suppression of material facts

on the part of the petitioner, or it transpires that the facts stated have been

so twisted and placed before the Court, that it would amount to

concealment, the writ court is well entitled to refuse to entertain the petition

and dismiss it without even entering into the merits of the matter [Refer:

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

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

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

object underlying the aforesaid principles in the following manner:-

"It 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."

11. After taking note of the aforesaid decision in the case of Prestige

Lights Ltd. (supra), the Supreme Court had 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)"

12. 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 that of the High Court under Article 226 of the Constitution of India is

extraordinary, equitable and discretionary and it is, therefore, of utmost

necessity that while approaching the writ court, the petitioner must come

with clean hands, put forward all the facts before the Court without

concealing or suppressing anything. If there is no candid disclosure of the

relevant and material facts or the petitioner is guilty of misleading the Court,

then his petition is liable to be dismissed at the threshold itself, without

considering the merits of the claim.

13. Taking note of the aforesaid decision and a catena of decisions on the

same lines, the following opening lines in the case of Dalip Singh vs. State of

Uttar Pradesh & Ors. reported as (2010) 2 SCC 114 is a telling comment

on the new creed of litigants, who do not have any qualms in twisting the

facts, or stating half truths to achieve their devious objectives:-

"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)"

14. In the case at hand, on a perusal of the petition including the list of

dates and events and the enclosed annexures, there is no doubt that the

petitioners have deliberately concealed the material fact of having executed

an Agreement to Sell on 11.4.2012, in respect of the subject property and of

having received a substantial amount of Rs.60 lacs as earnest money. The

relief sought by the petitioners in this petition is for cancellation of the

Conveyance Deed dated 12.8.2013, executed by the DDA in favour of the

respondent No.2 in respect of the subject premises and in the light of the

aforesaid relief, it is absolutely unacceptable for the learned counsel for the

petitioners to try and explain that execution of the aforesaid Agreement to

Sell would not be of any relevance and would not have any bearing on the

present petition.

15. Having regard to the aforesaid conduct of the petitioners, this Court is

of the opinion that they have made a deliberate attempt to withhold material

information in order to mislead the Court. In view of the above facts and

circumstances, this Court refuses to entertain the present petition on the

ground that the petitioners have not approached this Court with clean hands

and have failed to candidly disclose all the facts pertaining to the subject

premises, which were in their knowledge and were quite material.

Resultantly, the petition is dismissed without going into the merits of the

claim of the petitioners, while mulcting them with costs of `50,000/-. Out of

the aforesaid amount, a sum of `25,000/- shall be paid to the respondent

No.2 and the remaining sum of `25,000/- shall be deposited by the

petitioners with the Delhi High Court Legal Services Committee within a

period of two weeks from today. Proof of receipt/deposit shall be placed on

record within two weeks thereafter.

16. In the event of non-compliance of the present order by the petitioners

within the time stipulated, the matter shall be brought to the notice of the

Court.

(HIMA KOHLI) JUDGE JANUARY 30, 2014 sk/rkb/mk