Jammu & Kashmir High Court - Srinagar Bench
Dr. Manzoor Ahmad Banday (Aged 65 Yrs) vs Ut Of Jammu & Kashmir Through on 28 August, 2024
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
Sr. No.
IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPAOW No. 81/2024 in WP(C) No. 148/2023
Reserved on: 09.08.2024.
Pronounced on: 28.08.2024.
Dr. Manzoor Ahmad Banday (aged 65 yrs) ...Appellant(s)
S/o Late Nazir Ahmad Banday
R/o Lal Bazar, Near Masjid Rahmat, Srinagar.
Through: Mr Altaf Haqani, Sr.Advocate with
Mr. Shakir Haqani, Advocate.
Vs.
1. UT of Jammu & Kashmir Through Respondent(s)
Commissioner/Secy to Govt Specified Waqf
and Waqf properties Civil Secretariat,
Srinagar/Jammu
2. Chief Executive Officer, J&K Muslim Waqf
Board, Auqaf Board Auqaf Building Zero
Bridge, Srinagar
3. Abdul Haq Banday
S/o Ghulam Hassan Banday
R/o Nallibal Nowshera, Srinagar
4. Abdul Wahid Banday
S/o Ghulam Hassan Banday
R/o Bagh-i-Mehtab, Srinagar-Kashmir
Through: Mr. M. Sultan, Advocate.
Mr. Saqib, Advocate vice
Mr. Nisar Ahmad, Advocate.
Mr. Ruaani Ahmad Baba, Advocate.
CORAM:
HON'BLE MR. JUSTICE ATUL SREEDHARAN, JUDGE
HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
JUDGEMENT
Per Per Javed Iqbal J'
1. The instant intra court appeal is filed under clause 12 of the Letters
Patent Rules against the judgement and order dated 12.02.2024 passed
in WP(C) No. 148/2023, filed by respondent 3 and 4 herein against
respondents 1 and 2 herein and the appellant herein.
2. Facts giving rise to the filing of instant appeal emerging from the
record reveals that the respondents 3 and 4 herein maintained the
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aforesaid petition WP(C) 148/2023 before the writ court seeking
therein the following reliefs: -
a. Writ of Certiorari be issued in favour of the petitioners and against the
respondent, quashing of the impugned order dated 29.09.2022 passed by the
Respondent No. 2-Chief Executive Officer J & K Waqf Board Srinagar.
b. Writ of Mandamus, commanding the respondents to disburse the amount
withhold accumulated Nishan Dihan to the petitioners and also further Nazra-
Niaz due to the petitioners.
3. The aforesaid reliefs came to be prayed by the writ petitioners
respondents 3 and 4 herein on the premise that the respondent 2 herein
issued order dated 29.09.2022 by virtue of which the claim of the writ
petitioners respondents 3 and 4 herein to the share of Nazrana of the
Asari Sharif Hazratbal came to be rejected despite their entitlement
being the decedents of a Nishan Dihan namely Gh. Mohammad
Banday having been succeeded by their father namely Gh. Hassan
Banday as the said successor in interest Gh. Mohammad Banday had
died issue less.
It had further been averred in the said petition that the said
claim of the writ petitioners had been even got settled in a suit for
mandatory injunction filed besides others against the father of the
appellant herein in which suit an ex-parte judgement and decree came
to be passed in their favour on 23.05.1991.
It had further been stated in the petition supra by the writ
petitioners respondents 3 and 4 herein that the impugned order dated
29.09.2022 came to be issued by respondent 2 herein pursuant to an
order passed by this Court dated 19.05.2022 in WP (C ) No. 655/2021
titled "Abdul Haq Banday v UT of Jammu and Kashmir and Anr."
4. The writ Court upon considering the writ petition supra whereunder
the instant appeal has arisen allowed the same in terms of impugned
judgement and order dated 12.02.2024 and consequently quashed the
impugned order dated 29.09.2022 issued by respondent No. 2 herein
upholding the claim of the writ petitioners respondents 3 and 4 herein.
5. Aggrieved of the impugned judgement and order dated 12.02.2024,
the respondent 3 in the writ petition supra being appellant herein has
maintained the instant appeal inter-alia on the following grounds:
For impugned judgement and order passed by the Hon'ble
singly judge is bad in the eye of law being against the facts
of the case.
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For, the impugned judgement and order passed by the
learned single is against invalid in that the same has lead to
serious mis-carriage of justice. As stated above, by virtue of
notice dated 21.11.2023 Annexure-L-IV supra all that the
appellant was notified was to cause his appearance before
the Hon'ble court to show cause as to why the writ petition
be not admitted to hearing. It is stated that the said notice did
not at all notify upon the appellant that in the event of his
failure to appear before the court, the writ petition filed by
the respondents 3 and 4 shall be finally decided. Obviously,
by virtue of the order impugned the Hon'ble writ court has
fallen in grave error in deciding the writ petition finally,
contrary to notice issued to the appellant. The order
impugned is infested by a serious error of improper exercise
of jurisdiction which has worked to the serious miscarriage
of justice against the appellant. The order impugned is
liable to be set aside on this ground alone.
For, the order impugned is again bad in the eye of law
inasmuch as the same has been obtained by the respondents
3 and 4 by perpetrating fraud on the Hon'ble court by
concealing the material facts which were germane to the
controversy. It is proper to stated that the inter-se rights of
the respondents 3 and 4 vis-à-vis the appellant are controlled
by the compromise judgement and decree dated 04.11.1963
passed in suit No. 107/numberi titled "Ghulam Mohd
Banday v/s Ghulam-ud-Din Banday and Otheres" declaring
the Grand Father of the appellant (i.e. defendant No. 1 in the
suit) and his legal heirs to be entitled to display the holy relic
of Prophet Mohammad (PBH) after the death of the then
Nishan Dehand ( i.e., plaintiff in the suit). The inter-se
rights of the parties are also controlled by the final order
dated 21.04.2000 passed by this Hon'ble Court in civil
region No. 18/84, arising out of a civil suit titled " Ghulam
Hassan Banday vs. Nazir Ahmad Banday and another",
wherein the respondents 2 and 4 had been impleaded as legal
heirs of their father namely Ghulam Hassan Banday. It is
important predecessor in interest of the respondents 3 and 4
(i.e., Late Ghulam Hassan Banday) had sought for his
entitlement to display the Holy relic during his life time for
setting aside the above compromise judgement and decree.
In terms of the above order dated 21.04.2000, this Hon'ble
Court was pleased to hold the claim of the respondents 3
and 3 as having abated with the death of their father. It is
stated that the respondents 3 and 4 had obviously
approached the court with unclean hands suppressing the
above facts and obtain the relief to which they were not
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entitled. The appellant appends herewith the copy of the
decree sheet dated 04.11.1963 and the same is marked as
Annexure-V. Copies of the civil suti titled " Ghulam Hassan
Banday vs. Nazir Ahmad Banday and Anr." as also the
order dated 21.04.2000as annexed herewith and collectively
marked as Annexure-VI.
For, the impugned judgement is also liable to be set aside
inasmuch as the same is again based on concealment of the
material facts in the nature of an order bearing no. 29 of
2017 dated 13.11.2017, in terms whereof the appellant was
substituted as beneficiary at S.No. 3 of group A of order
No. 597 of 2007 and entitled to disbursement of the Nazar-
u-Niaz. It is relevant to state that the said order dated
13.11.2017 continues to remain in force having not been
challenged till date. A copy of the said order dated
13.11.2017 is annexed herewith and marked as Annexure-
VII.
For, the order impugned is also legally invalid inasmuch as
the Hon'ble single judge has fallen in grave error in
appreciating the claim of the respondents 3 and 4 that they
are the co-sharers in the sub-group known by the name of
Nazir Ahmad Banday. This has been done by the learned
single judge on the premises of the judgement and decree
passed on 23.05.1991 in a civil suit between the parties. The
Hon'ble single judge has failed to appreciate that in terms
of said judgement, the learned civil court had passed the
direction by way mandatory direction with regard to Nazar-
u-Niaz as had allegedly accumulated till the date of
institution of the suit and that the same did not pertain to
the amount of Nazar-u-Niaz as had fallen due to the Nishan
Dehand at the time of passing of the order dated 2703.2007.
In this behalf, it is apposite to submit that the claim based on
the said judgement was again tainted with suppression and
concealment of material facts in that judgement in question
had been held by this Hon'ble court as incapable of
execution vide an order dated 01.06.2005 passed in CR No.
40/2004 copy whereof is annexed herewith and marked as
Annexure-VIII. The Hon'ble single judge has also failed to
appreciate that the judgement dated 23.05.1991 was
pertaining to the entitlement in the Nazar-u-Niaz of the
Khadims of Hazratbal Shrine and not the entitlement of the
Nishan Dehands. On this ground as well the judgment and
order impugned are liable to be set aside.
For, the impugned judgment and order is also liable to be set
aside inasmuch as the learned single judge has fallen in
grave legal error by directing respondent no. 1 to appoint
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the new representative of the subgroup in the place of the
appellant. The said directions passed by the Hon'ble single
judge are beyond the scope of the relief claimed by the
respondents 3 and 4.
For, the impugned judgement and order are again liable to
be set-aside in that the learned single judge has treated the
respondents 3 and 4 as co-sharers of the appellant without
any material being on record to that effect. The impugned
judgement is not supported by any evidence. In this behalf,
if may be pertinent to state that right to hold the office of
Nishan Dehand of Holy Relic is a propriety right of the
appellant as held by the civil court vide judgment and
decree dated 04.11.1963, in consequence whereof the
appellant was admitted by respondent no. 1 as Nishan
Dehand after the demise of his father.
For, the impugned judgement and order is also liable to be
set aside inasmuch as the learned single judge without
hearing the version of facts on the part of the appellant has
been pleased to pass the order impugned to his prejudice. It
may be pertinent to mention that admittedly the appellant
had declined to receive the amount of the Nazar-u-Niaz
passed in his favour vide order dated 27.03.2007 with a
paramount objective that the same may be utilized for
setting up of material facility at Hazratbal Shrine.
Heard counsel for the parties and perused the record.
6. Mr. Haqani, Sr. Advocate, appearing counsel for the appellant
herein while making his submissions would vehemently contend
that the writ petitioners respondents 3 and 4 herein have
deliberately and intentionally suppressed and concealed the
material facts in the writ petition supra that the ex-parte judgement
and decree dated 23.05.1991 referred to and relied upon therein the
petition for the purposes of seeking reliefs in the writ petition have
had been held in-executable by the executing court which had
dismissed the execution petition filed thereof and which dismissal
of execution petition as well came to be upheld by this Court vide
order dated 01.06.2005 passed in Civil Revision no. 40/2004 filed
by the writ petitioners respondents 3 and 4 herein against the said
order of dismissal of the execution petition.
Mr. Haqani would thus, insist that in view of the said
concealment and suppression of said material facts by the writ
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petitioners respondents 3 and 4 herein disentitled them to the grant
of any reliefs much less those prayed in the writ petition before the
writ court as had the said material facts been brought into the notice
of the writ court, result of the said writ petition would have been
different.
7. Having regard to the aforesaid submissions of Mr. Haqani, it is
deemed appropriate to advert to the said submissions in the first
instance, more so, in view of the settled position of law that the writ
jurisdiction under Article 226 of the Constitution though being
extraordinary in nature is discretionary in character and although no
limit can be placed upon the said discretion, yet, the same has to be
exercised along recognized lines and subject to certain self imposed
limitation.
8. Before proceeding further in the matter a reference to the following
judgements of the Apex Court in regard to the aforesaid
submissions of Mr. Haqani would be advantageous being relevant
herein.
The Apex court in case titled as "Prestige Lights Ltd Vs.
State Bank of India", reported in 2007 (8) SCC 449 at paras 33,
34 and 35 has held as under: -
33........... 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 Commissioners, in the following
words:
"[I] 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 made 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".
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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.
In case titled as "K. D. Sharma Vs. Steel Authority of
India Limited and Ors". reported in 2008 (12) SCC 481, the
Apex Court at paras 34, 35 and 36 has held as under: -
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: (KB
P.514):
"......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 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".
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 larger public interest to deter unscrupulous litigants
from abusing the process of Court by deceiving it.
In case titled as "Manohar Lal (dead) by LRs versus
Ugrasen (dead) by LRs and Ors". reported in 2010 (11) SCC
557, the Apex Court at paras 48, 49, 50 and 51, has held as under:-
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48............When a person approaches a court of equity in exercise of its
extraordinary jurisdiction under Article 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 appreciation 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 The Ramjas Foundation Vs. Union of India & Ors, K.P. Srinivas Vs.
R.M. Premchand & ors. and Nooruddin Vs. (Dr.) K.L. Anand.
49. Similarly, in Ramniklal N. Bhutta Vs. State of Maharashtra, this Court observed
as under:-
"10..........The power under Article 226 is discretionary. It will be
exercised only in furtherance of interest of justice and not merely on the
making out of a legal point.....the interest of justice and the public interest
coalesce. They are very often one and the same. ..... The Courts have to
weigh the public interest vis-a-vis the private interest while
exercising....any of their discretionary powers.
50. In Tilokchand Motichand Vs. H.B. Munshi, State of Haryana Vs. Karnal
Distillery, and Sabia Khan & Ors. Vs. State of U.P. & Ors. this Court held that filing
totally misconceived petition amounts to abuse of the process of the Court. Such a
litigant is not required to be dealt with lightly, as petition containing misleading and
inaccurate statement, if filed, to achieve an ulterior purpose amounts to abuse of
the process of the Court. A litigant is bound to make "full and true disclosure of
facts."
51. In Abdul Rahman Vs. Prasony Bai, S.J.S. Business Enterprises (P) Ltd. Vs.
State of Bihar and Oswal Fats & Oils Ltd. Vs. Addl. Commr. (Admn), this Court
held that whenever the Court comes to the conclusion that the process of the
Court is being abused, the Court would be justified in refusing to proceed further
and refuse relief to the party. This rule has been evolved out of need of the Courts
to deter a litigant from abusing the process of the Court by deceiving it.
9. Having regard to the aforesaid submissions of Mr. Haqani, and
keeping in mind the aforesaid position and principles of law,
perusal of the record of the writ petition became imperative, a
deeper and closer examination of which would manifestly tend to
demonstrate that the writ petitioners respondents 3 and 4 herein
have indeed concealed and suppressed the material facts that the
ex-parte judgement and decree dated 23.05.1991 referred to and
relied upon by them in the writ petition in question for the purposes
of seeking reliefs therein the petition were held to be in-executable
by the executing court as also by this court in terms of order dated
01.06.2005 passed in Civil Revision No. 40/2004 supra.
10. In view of the aforesaid undisputed and uncontroverted factual
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position obtaining in the matter, the only irrefutable conclusion that
could be drawn is that had the said facts been disclosed and brought
into the notice of the writ court probably the writ court would not
have passed the impugned judgement and order, in that, the said
disclosure certainly and definitely would have had an effect on the
merits of the case setup by the writ petitioners respondents 3 and 4
before the writ court. The writ petitioners respondents 3 and 4
herein under these circumstances thus, can be said to have got
themselves disentitled to the grant of any relief in the matter much
less those prayed in the writ petition supra and we are of the
considered opinion that the writ petition filed by the writ petitioners
respondents 3 and 4 herein whereunder the instant appeal has arisen
is liable to be dismissed with costs.
11. Resultantly the instant appeal succeeds and the impugned
judgement and order 12.02.2024 is set-aside and consequently the
writ petition being WP(C)148/2023 shall stand dismissed with costs
to the tune of Rs.20,000/- to be payable by the writ petitioners
respondents 3 and 4 herein and deposited with the Registrar
Judicial of this court within a period of four weeks time whereupon
such deposit shall be credited by the Registry in Account No.
0372040100020529 maintained in the name of "Yateem Khaanah,
Bemina, Srinagar".
(JAVED IQBAL WANI) (ATUL SREEDHARAN)
JUDGE JUDGE
Srinagar
28.08.2024
Ishaq
Whether the judgement is speaking? Yes/No
Whether the judgement is reportable ? Yes/No
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