Sripal vs South Delhi Municipal ...
2017 Latest Caselaw 1341 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                        Date of Judgment: 10th March, 2017
+       W.P. (C) 9249/2016
        SRIPAL                                               ..... Petitioner
                            Through :    Mr.Ramesh Kumar Mishra and
                                         Mr.Rajnish Kumar Singh, Advocates

                            versus

        SOUTH DELHI MUNICIPAL CORPORATION AND ANR
                                           ..... Respondents
                            Through :    Ms.Puja Kalra, Advocate for SDMC
CORAM:
   HON'BLE MR. JUSTICE G.S.SISTANI
   HON'BLE MR. JUSTICE VINOD GOEL
G.S.SISTANI, J. (ORAL)

1. The petitioner has filed the present writ petition under Article 226 of the Constitution of India seeking a writ of mandamus or any other appropriate writ, order or direction to the respondent not to dispossess, disturb him in any manner from the vending site being Footpath, Khoka Market, Pushp Vihar, Sector-1, Saket, New Delhi.

2. The petitioner claims to be vending at the aforesaid site and in 2007, the petitioner applied for issuance of tehbazari licence. Thereafter, since his application was not considered, he approached Zonal Vending Committee by filing application no.9729. By an order dated 05.10.2010, the Zonal Vending Committee held that the petitioner was neither entitled to preferential allotment nor any direction of status quo was granted. The petitioner had relied upon receipts showing payment

of fine dated 07.07.2002, 07.07.2003, 19.12.2003 and 21.05.2004. The petitioner also filed an appeal before the Appellate Authority seeking an order of status quo relying under the provisions of National Capital Territory of Delhi Laws (Special Provisions) Second Act, 2011. The Appellate Court had then directed maintenance of status quo with regard to the aforesaid site.

3. Counsel for the respondent has entered appearance on an advance copy and filed a short affidavit. It is submitted that the writ petition is misconceived, devoid of merit and has been filed giving false and concocted facts. Ms.Kalra has urged that on account of suppression of material facts, the petitioner would not be entitled to any relief from this Court and on this ground alone, the writ petition should be dismissed with exemplary costs. Based on the record, it is submitted that the site in question was earlier allotted in the name of Sh.Sripal S/o Sujan Singh/petitioner herein vide letter dated 15.04.2002, the site was sold by the petitioner to one, Mr.Shiv Kumar S/o Sh.Nand Lal and was subsequently mutated in his name vide Mutation Letter No.2218/AC/SZ/2010-11 dated 07.02.2011 under the policy in vogue at the relevant point of time. A copy of the application and mutation letter has been placed on record. It is thus, contended by the learned counsel for the respondent that the petitioner has already transferred and conveyed the earlier allotted site to one Shiv Kumar S/o Sh. Nand Lal on consideration and thus, he is not entitled to any relief.

4. It is also contended that after having sold the site for valuable consideration, the petitioner has been approaching different forums and seeking relief based on an allotment which is not vested in him as

the right has already been sold for valuable consideration. It is contended that the claims made in the writ petition are not only false but it would amount to perjury and suitable action should be initiated against the petitioner in accordance with law.

5. Mr. Mishra, learned counsel appearing for the petitioner submits that the petitioner belongs to a weaker section of the society and thus, a lenient view be taken in the matter.

6. Original record has been produced and even otherwise, the transfer of the site is not disputed by the petitioner. We are of the view that the petitioner has not approached the Court with clean hands. The petitioner has suppressed and withheld material facts which are directly connected with the relief which is being sought in the matter.

7. In S.P. Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1, the Supreme Court, while dealing with a case where a release deed was suppressed, came down heavily upon the such tactics of litigants. It observed that the non-mentioning and non-production of the release deed amounted to "playing fraud upon the court" and concluded that:

"6. ...A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party."

8. In the case of Arunima Baruah v. Union of India, (2007) 6 SCC 120, it has been held that mere suppression of facts alone cannot be a ground for dismissal of a writ petition but the facts which may have been concealed should be direct in nature. Relevant paragraphs read as under:

"12. It is trite law that so as to enable the court to refuse to exercise its discretionary jurisdiction suppression must be of material fact. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction. It is also trite that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But even if the said dirt is removed and the hands become clean, whether the relief would still be denied is the question.

13. In Moody v. Cox [(1917) 2 Ch 71 : (1916-17) All ER Rep 548 (CA)] it was held: (All ER pp. 555 I-556 D) It is contended that the fact that Moody has given those bribes prevents him from getting any relief in a court of equity. The first consequence of his having offered the bribes is that the vendors could have rescinded the contract. But they were not bound to do so. They had the right to say "no, we are well satisfied with the contract; it is a very good one for us; we affirm it". The proposition put forward by counsel for the defendants is: "It does not matter that the contract has been affirmed; you still can claim no relief of any equitable character in regard to that contract because you gave a bribe in respect of it. If there is a mistake in the contract, you cannot rectify it, if you desire to rescind the contract, you cannot rescind it, for that is equitable relief." With some doubt they said: "We do not think you can get an injunction to have the contract performed, though the other side have affirmed it, because an injunction may be an equitable remedy." When one asks on what principle this is supposed to be based, one receives in answer the maxim that anyone coming to equity must come with clean hands. I think the

expression "clean hands" is used more often in the textbooks than it is in the judgments, though it is occasionally used in the judgments, but I was very much surprised to hear that when a contract, obtained by the giving of a bribe, had been affirmed by the person who had a primary right to affirm it, not being an illegal contract, the courts of equity could be so scrupulous that they would refuse any relief not connected at all with the bribe. I was glad to find that it was not the case, because I think it is quite clear that the passage in Dering v. Earl of Winchelsea [(1787) 1 Cox Eq Cas 318 : 2 Bos & P 270] which has been referred to, shows that equity will not apply the principle about clean hands unless the depravity, the dirt in question on the hand, has an immediate and necessary relation to the equity sued for. In this case the bribe has no immediate relation to rectification, if rectification were asked, or to rescission in connection with a matter not in any way connected with the bribe. Therefore that point, which was argued with great strenuousness by counsel for the defendant, Hatt, appears to me to fail, and we have to consider the merits of the case.

14. In Halsbury's Laws of England, 4th Edn., Vol. 16, pp. 874- 76, the law is stated in the following terms:

"1303. He who seeks equity must do equity.--In granting relief peculiar to its own jurisdiction a court of equity acts upon the rule that he who seeks equity must do equity. By this it is not meant that the court can impose arbitrary conditions upon a plaintiff simply because he stands in that position on the record. The rule means that a man who comes to seek the aid of a court of equity to enforce a claim must be prepared to submit in such proceedings to any directions which the known principles of a court of equity may make it proper to give; he must do justice as to the matters in respect of which the assistance of equity is asked. In a court of law it is otherwise: when the plaintiff is found to be entitled to

judgment, the law must take its course; no terms can be imposed.

*** 1305. He who comes into equity must come with clean hands.--A court of equity refuses relief to a plaintiff whose conduct in regard to the subject-matter of the litigation has been improper. This was formerly expressed by the maxim „he who has committed iniquity shall not have equity‟, and relief was refused where a transaction was based on the plaintiff's fraud or misrepresentation, or where the plaintiff sought to enforce a security improperly obtained, or where he claimed a remedy for a breach of trust which he had himself procured and whereby he had obtained money. Later it was said that the plaintiff in equity must come with perfect propriety of conduct, or with clean hands. In application of the principle a person will not be allowed to assert his title to property which he has dealt with so as to defeat his creditors or evade tax, for he may not maintain an action by setting up his own fraudulent design.

The maxim does not, however, mean that equity strikes at depravity in a general way; the cleanliness required is to be judged in relation to the relief sought, and the conduct complained of must have an immediate and necessary relation to the equity sued for; it must be depravity in a legal as well as in a moral sense. Thus, fraud on the part of a minor deprives him of his right to equitable relief notwithstanding his disability. Where the transaction is itself unlawful it is not necessary to have recourse to this principle. In equity, just as at law, no suit lies in general in respect of an illegal transaction, but this is on the ground of its illegality, not by reason of the plaintiff's demerits."

(See also Snell's Equity, 13th Edn., pp. 30-32 and Jai Narain Parasrampuria v. Pushpa Devi Saraf [(2006) 7 SCC 756] .)

15. In Spry on Equitable Remedies, 4th Edn., p. 5, referring to Moody v. Cox [(1917) 2 Ch 71 : (1916-17) All ER Rep 548 (CA)] and Meyers v. Casey[(1913) 17 CLR 90] it is stated:

"... that the absence of clean hands is of no account „unless the depravity, the dirt in question on the hand, has an immediate and necessary relation to the equity sued for‟. When such exceptions or qualifications are examined it becomes clear that the maxim that predicates a requirement of clean hands cannot properly be regarded as setting out a rule that is either precise or capable of satisfactory operation."

Although the aforementioned statement of law was made in connection with a suit for specific performance of contract, the same may have a bearing in determining a case of this nature also.

16. In the said treatise, it was also stated at pp. 170-71:

"In these cases, however, it is necessary that the failure to disclose the matters in question, and the consequent error or misapprehension of the defendant, should be such that performance of his obligations would bring about substantial hardship or unfairness that outweighs matters tending in favour of specific performance. Thus, the failure of the plaintiff to explain a matter of fact, or even, in some circumstances, to correct a misunderstanding of law, may incline the court to take a somewhat altered view of considerations of hardship, and this will be the case, especially where it appears that at the relevant times the plaintiff knew of the ignorance or misapprehension of the defendant but nonetheless did not take steps to provide information or to correct the material error, or a fortiori, where he put the defendant off his guard or hurried him into making a decision without proper enquiry.""

(Emphasis Supplied)

9. We may note the following observations of the Supreme Court in Prestige Lights Ltd. v. SBI, (2007) 8 SCC 449:

"33. It is thus clear that though the appellant Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a court of law is also a court of equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the writ court may refuse to entertain the petition and dismiss it without entering into merits of the matter.

34. The object underlying the above principle has been succinctly stated by Scrutton, L.J., in R. v. Kensington Income Tax Commrs. [(1917) 1 KB 486 : 86 LJKB 257 : 116 LT 136 (CA)] , in the following words:

"[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."

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)

10. The Apex Court in Oswal Fats & Oils Ltd. v. Additional Commr.

(Admn.), Bareilly Division, Bareilly and Ors., (2010) 4 SCC 728 has held that the court is duty bound to deny relief to persons mischievously approaching it with unclean hands. The relevant portion reads as under:

"20. It is settled law that a person who approaches the court for grant of relief, equitable or otherwise, is under a solemn obligation to candidly disclose all the material/important facts which have bearing on the adjudication of the issues raised in the case. In other words, he owes a duty to the court to bring out all the facts and refrain from concealing/suppressing any material fact within his knowledge or which he could have known by exercising diligence expected of a person of ordinary prudence. If he is found guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the court not only has the right but a duty to deny relief to such person."

11. From the aforegoing discussion, it is clear that whenever a person approaches this Court seeking invocation of its discretionary and extraordinary jurisdiction under Article 226 of the Constitution, he/she is duty-bound to disclose all facts candidly without any reservations. Any suppression is to be viewed seriously by the Court. At the same time, such suppression may be of a material fact or otherwise. All facts have a bearing upon the lis between the parties are material facts

and must be disclosed. Failure to disclose material facts makes it incumbent upon the Court to deny relief to such person. On the other hand, if the concealed fact is not material, the Court may or may not refuse to exercise its extraordinary jurisdiction.

12. In the present case, the petitioner has inter alia concealed the fact that the site in question was sold by him to Sh.Shiv Kumar and that the mutation has already been granted. Such mutation alienates the very basis of the right of the petitioner in the site in question and consequently, has a strong bearing on the present lis. Accordingly, the facts which have been concealed are clearly material and direct in nature.

13. The writ petition is, therefore, dismissed with cost of Rs.10,000/- to be paid to the Delhi High Court Legal Services Committee.

CM.APPL 37349/2016

14. Application stands disposed of in view of above.

G. S. SISTANI, J.

VINOD GOEL, J.

MARCH 10, 2017 // pst