Amar Dev vs State Of H. P. & Ors
2023 Latest Caselaw 2002 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

CWP No. 683 of 2023

.

                                                  Reserved on: 06.03.2023





                                                  Decided on: 09.03.2023

    Amar Dev                                                                ...Petitioner





                                                  Versus
    State of H. P. & Ors.                                                   ...Respondents

    Coram:

Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Hon'ble Mr. Justice Virender Singh, Judge.

    Whether approved for reporting? 1
                             r                    No.



    For the Petitioner :                   Mr. Ashwani Kumar Sharma, Advocate.

For the Respondents : Mr. Anup Rattan, A.G. with Mr. I. N.

Mehta, Mr. Y. W. Chauhan, Sr. Addl. A.G., Mr. J. S. Guleria, Dy. A.G. and Mr. Rajat Chauhan, Law Officer, for respondents- State.

                                           Mr.   Onkar    Jairath,              Advocate,         for
                                           respondent No. 3.




    Tarlok Singh Chauhan, Judge

The instant petition has been filed for grant of the

following substantive reliefs:-

I) A writ of certiorari may kindly be issued for quashment of impugned transfer order dated 08.02.2023 issued by Deputy Commissioner, Una, whereby the present petitioner has been ordered to be transferred from his present place of posting as field Kanungo, Kanungo Circle Jalgran, Tabba, Tehsil and District Una, H.P. as office Kanungo, Tehsil Office Haroli, District Una, H.P. vice versa to private respondent No. 3 in arbitrary exercise of

Whether reporters of the local papers may be allowed to see the judgment? yes

discretionary powers, illegally and in contravention to the provisions of Comprehensive Guiding Principles dated 10 th

.

July, 2013, Column No. 3 at Serial No. 19 and further,

clarification dated 18.08.2020, given by the Principal Secretary-cum-Financial Commissioner (Revenue) to all the Deputy Commissioners, whereby complete

prohibition/restriction has been imposed on the transfer of Kanungo's in their home Tehsil/sub-Tehsil, in the interest of justice.

ii) Further, the impugned transfer order dated 08.02.2023 be declared illegal, void-ab initio and in defiance to the intent and purport of maintaining transparency, integrity and honesty of the employees while discharging their

officials duties, in the interest of justice and fair play.

Iii) Further, a writ of mandamus be issued by directing the respondent authorities to continue the services of the present petitioner at the previous place of posting as he

has completed one year and three months of services and is yet to complete his normal tenure of three years.

2. It would be noticed that the petition was prepared on

12.02.2023 and filed on 15.02.2023 and thereafter, the

petitioner obtained an ad interim order in his favour on

15.02.2023, whereby the order of transfer dated 08.02.2023

(Annexure P-1) was ordered to be stayed.

3. On being put to notice, the private respondent has

filed an application for eviction/modification of the order dated

15.02.2023, on the ground that the petitioner has not

approached this Court with clean hand and the petition suffers

from the vice of suppresio veri and suggestio falsi as the

petitioner has knowingly and willingly suppressed the material

facts from this Court.

.

4. It is further stated that pursuant to order of transfer

dated 08.02.2023, the private respondent had already joined the

transferred station after being relieved from his duties from the

office of Kanungo, Tehsil Office Haroli, District Una, H.P. on

09.02.2023 and this fact was duly in the knowledge of the

petitioner, yet he did not disclose the same in the petition.

5. On the other hand, the petitioner would claim that he

was on medical leave during the relevant time and he had no

knowledge whatsoever regarding the joining of the private

respondent.

6. We are not inclined to accept the version put-forth by

the petitioner. Firstly, even if it is assumed that the petitioner

was on medical leave during the relevant time, it would be

noticed that the instant petition has been prepared at Shimla and

attested by the Oath Commissioner at Shimla, which goes to

indicate that the petitioner even if on medical leave had been

travelling and visiting various places.

7. That apart, even if it is assumed that the petitioner

was bed-ridden even then, we are not ready to accept that there

would be a complete disconnect between the petitioner and his

office and that he was not knowing about the joining of

the private respondent in his place. After all, the petitioner is a

Kanungo under whom there would be Patwari(s) and other staff

.

working and we see no reason that such Patwari(s) of the staff

would not apprise the petitioner, who is their higher authority of

the day-to-day affairs and happening in the office.

8. In view of the above, the Court has no hesitation to

conclude that the petitioner has not approached this Court with

clean hands.

9.

The fundamental principles of equity is that a party

must come to the Court with clean hands, failing which such

party is not entitled to any relief. When a person approaches a

court of equity in exercise of its extraordinary jurisdiction, it is

expected that he will approach the Court not only with clean

hands, but with clean mind, clean heart and clean objective. He

who seeks equity must do equity.

Here it is profitable to refer to certain precedents on

the subject.

10. In Udyami Evam Khadi Gramodyog Welfare

Sanstha v. State of Uttar Pradesh, (2008) 1 SCC 560, the

Hon'ble Supreme Court has held as under:-

16. A writ remedy is an equitable one. A person approaching a superior court must come with a pair of clean hands. It not only should not suppress any material fact, but also should not take recourse to the legal

proceedings over and over again which amounts to abuse of the process of law.

.

11. In K.D. Sharma v. Steel Authority of India

Limited, (2008) 12 SCC 481, the Hon'ble Supreme Court has

held as under: -

33. The learned counsel for SAIL is also right in urging that the appellant has not approached the Court with

clean hands by disclosing all facts. An impression is sought to be created as if no notice was ever given to him nor was he informed about the consideration of cases of eligible and qualified bidders in pursuance of the

order passed by the High Court in review and confirmed

by this Court. The true R.P.No.161/2015 (Central Ware House & Anr. v. Union of India & Ano.) facts, however, were just contrary to what was sought to be placed

before the Court. A notice was issued by SAIL to the appellant, he received the notice, intimated in writing to SAIL that he had authorised Ramesh of Rithwik Projects

to appear on his behalf. Ramesh duly appeared at the time of consideration of bids. Bid of Respondent 2 was

found to be lowest and was accepted and the contract was given to him (under Tender Notice 4). The said

contract had nothing to do with Tender Notice 5 and the contract thereunder had been given to the appellant herein and he had completed the work. Thus, it is clear that the appellant had not placed all the facts before the Court clearly, candidly and frankly.

34. The jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing

substantial justice. 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.

35. The underlying object has been succinctly stated by

Scrutton, L.J., in the leading case of R. v. Kensington Income Tax Commrs in the following words: "... 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--it says 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 Udyami Evam Khadi Gramodyog Welfare Sanstha v.

State of Uttar Pradesh, (2008) 1 SCC 5by 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 R.P.No.161/2015 (Central Ware House & Ano. v. Union of India & Anr.) any action which it has taken on the faith of the imperfect statement." (emphasis supplied)

36. A prerogative remedy is not a matter of course. While exercising extraordinary power a writ court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the court. If the applicant makes a false statement or suppresses material fact or

attempts to mislead the court, the court may dismiss the action on that ground alone and may refuse to enter into

.

the merits of the case by stating, "We will not listen to

your application because of what you have done." The rule has been evolved in the larger public interest to deter unscrupulous litigants from abusing the process of

court by deceiving it.

37. In Kensington Income Tax Commrs. Viscount Reading, C.J. observed "... Where an ex parte application has been

made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not

fairly state the facts, but stated them in such a way as to

mislead the Court as to the true facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the

Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been

deceived. Before coming to this conclusion a careful examination will be made of the facts as they are and as

they have been stated in the applicant's affidavit, and everything will be heard that can be urged to influence

the view of the Court when it reads the affidavit and knows the true facts. But if the result of this examination and hearing is to leave no doubt that the Court has been deceived, then it will refuse to hear anything further from Udyami Evam Khadi Gramodyog Welfare Sanstha v. State of Uttar Pradesh, (2008) 1 SCC 5he applicant in a proceeding which has only been set in R.P.No.161/2015 (Central Ware House & Ano. v. Union of India & Ano.) motion by means of a misleading affidavit." (emphasis supplied)

38. The above principles have been accepted in our legal system also. As per settled law, the party who invokes

.

the extraordinary jurisdiction of this Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must

disclose all material facts without any reservation even if they are against him. He cannot be allowed to play "hide and seek" or to "pick and choose" the facts he likes to disclose and to suppress (keep back) or not to disclose

(conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or

distorted, the very functioning of writ courts and exercise

would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because "the court knows law but not facts".

39. If the primary object as highlighted in Kensington Income Tax Commrs. is kept in mind, an applicant who

does not come with candid facts and "clean breast"

cannot hold a writ of the court with "soiled hands". Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or

misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the court does not reject the petition on that ground, the court would be failing in its duty. In fact,

such an applicant requires to be dealt with for contempt of court for abusing the process of the court."

.

12. It has been held that suppression or concealment of

material facts is not even an advocacy. After taking note of

various judgments on the subject, the Hon'ble Supreme Court

has opined as under:-

"51. Yet in another case in Vijay Syal v. State of R.P.No.161/2015 (Central Ware House & Ano. v. Union of India & Ano.) Punjab, this Court stated: (SCC p. 420, para 24)

"24. In order to sustain and maintain the sanctity and

solemnity of the proceedings in law courts it is necessary that parties should not make false or knowingly, inaccurate statements or misrepresentation and/or should not conceal material facts with a design to gain some

advantage or benefit at the hands of the court, when a court is considered as a place where truth and justice are the solemn pursuits. If any party attempts to pollute such

a place by adopting recourse to make misrepresentation

and is concealing material facts it does so at its risk and cost. Such party must be ready to take the consequences that follow on account of its own making. At times lenient

or liberal or generous treatment by courts in dealing with such matters is either mistaken or lightly taken instead of learning a proper lesson. Hence there is a compelling need to take a serious view in such matters to ensure expected purity and grace in the administration of justice."

13. In Dalip Singh v. State of Uttar Pradesh and

others, (2010) 2 SCC 114, the Hon'ble Supreme Court has

.

held as under:-

"7. In Prestige Lights Ltd. v. SBI5 it was held that in

exercising power under Article 226 of the Constitution of India the High Court is not just a court of law, but is also a court of equity and a person who invokes the High Court's jurisdiction under Article 226 of the Constitution is duty-

bound to place all the facts before the Court without any reservation. If there is suppression of material facts or twisted facts have been placed before the High Court

then it will be fully justified in refusing to entertain a petition filed under Article 226 of the Constitution. This

Court referred to the judgment of Scrutton, L.J. in R. v. Kensington Income Tax Commissioners, and observed: (Prestige Lights Ltd. case, SCC p. 462, para 35) In

exercising jurisdiction under Article 226 of the Constitution, the High Court will always keep 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 R.P.No.161/2015 (Central Ware House & Anr. v. Union of India & Anr.) court, then the Court may dismiss the action

without adjudicating the matter on merits. 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."

14. In Manohar Lal (Dead) By Lrs. v. Ugrasen,

(2010) 11 SCC 557, the Hon'ble Supreme Court has held as

.

under: -

"48. The present appellants had also not disclosed that

land allotted to them falls in commercial area. When a person approaches a court of equity in exercise of its extraordinary jurisdiction under Articles 226/227 of the Constitution, he should approach the court not only with

clean hands but also with clean mind, clean heart and clean objective. "Equally, the judicial process should never become an instrument of oppression or abuse or a means

in the process of the court to subvert justice." Who seeks equity must do equity. The legal maxim "Jure naturae

aequum est neminem cum alterius detrimento et injuria fieri locupletiorem", means that it is a law of nature that one should not be enriched by the loss or injury to

another. (Vide Ramjas Foundation v. Union of India, K.R. Srinivas v. R.M. Premchand and Noorduddin v. Dr. K.L. Anand at SCC p. 249, para 9.)

15. In paragraph 53 of this judgment, the Hon'ble

Supreme Court has held that in this kind of case, the proceedings

for criminal contempt can be initiated.

16. In State of Madhya Pradesh v. Narmada Bachao

Andolan and another, (2011) 7 SCC 639, the Hon'ble

Supreme Court has held that it is a settled proposition of law that

a false statement made in the Court or in the pleadings

intentionally to mislead the Court and obtains favourable order

amounts to criminal contempt.

17. On the basis of aforesaid judgments of the Hon'ble

Supreme Court, following principles may be culled out:-

.

1. A writ remedy is an equitable one. While exercising extraordinary power a Writ Court certainly bear in mind

the conduct of the party who invokes the jurisdiction of the Court.

2. Litigant before the Writ Court must come with clean hands, clean heart, clean mind and clean objective. He

should disclose all facts without suppressing anything. Litigant cannot be allowed to play "hide and seek" or to "pick and choose" the facts he likes to disclose and to

suppress (keep back)/ conceal other facts.

3. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, maneuvering or mis representation which has no place in equitable and prerogative jurisdiction.

4. If litigant does not disclose all the material facts fairly and truly or states them in a distorted manner and

misleads the Court, the Court has inherent R.P.No.161/2015 (Central Ware House & Anr. v. Union of

India & Anr.) power to refuse to proceed further with the examination of the case on merits. If Court does not reject the petition on that ground, the Court would be failing in

its duty.

5. Such a litigant requires to be dealt with for Contempt of Court for abusing the process of the Court.

6. There is a compelling need to take a serious view in such matters to ensure purity and grace in the administration of justice.

7. The litigation in the Court of law is not a game of chess. The Court is bound to see the conduct of party who is invoking such jurisdiction.

18. Since the petitioner has concealed and suppressed

.

material facts and has not approached this Court with clean

hands, the merits of the case need not be gone into and the

instant petition is accordingly dismissed at the threshold, leaving

the parties to bear their own costs.

                                             (Tarlok Singh Chauhan)





                                                       Judge



                                                  (Virender Singh)
    9th March, 2023
                          r                             Judge

          (sanjeev)