Mohammad Fareed Pasha vs The State Of Telangana
2022 Latest Caselaw 6039 Tel

     THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

                 WRIT PETITION No. 9303 OF 2022
O R D E R:

This Writ Petition is filed seeking the following relief:

" to issue a writ, order or direction more particularly one in the nature of writ of mandamus declaring the inaction of the 3rd respondent herein in not stopping the illegal construction being carried out by the 5th respondent herein under the aid and assistance of 4th respondent herein as against to the building permission granted to the petitioner herein by the 3rd respondent herein vide Application No. 136246/KOLL/00242022, dated 09.02.2022 as illegal, arbitrary and against to the principles of natural justice and contrary to the provisions of Telangana Municipalities Act, 2019 and consequently, direct the 3rd respondent herein to demolish the illegal construction already carried out by the 5th respondent herein and further direct the 4th respondent herein not to interfere in my building construction and pass such other order or orders as this Hon'ble Court may deem fit just and proper in the circumstances of the case."

2. Sri B. Arjun Rao, learned counsel for petitioner

submits that petitioner is the absolute owner and possessor of

joint plot (A) in Survey Nos. 149, 150, 152, 153, 154, 155, 156 &

166 of Varidela Revenue Shivar, Kollapur Nagar Panchayat,

Kollapur Mandal having purchased the same under a registered

sale deed dated 01.02.2022 and link document dated 01.03.2014.

Originally, the owner of the property is Sri T.V. Krishna Rao and

his sons owns an extent of Acs.9.05 guntas and during the lifetime

of the said Krishna Rao, he had partitioned the property by

executing a registered partition deed dated 01.03.2014 and

converted the same into residential open plots and out of the total

extent of Ac.9.05 guntas, only Ac.3.00 in the said survey numbers

were converted into 58 plots and also one joint plot (A) and one

joint plot (B). It is submitted that after the death of Sri Krishna

Rao, his sons alienated the property in favour of the petitioner vide

sale deed dated 01.02.2022 and a rectification deed dated

08.02.2022 was executed by rectifying the extent of plot as 61.11

square yards instead of 69.44 square yards. It is submitted that

the 5th respondent started claiming the property without having

any valid document and started construction in his plot illegally

without obtaining any permission. The petitioner has applied for

grant of building permission to the 3rd respondent on 09.02.2022

by uploading all the necessary documents as mandated under

Section 174(7) of the Telangana Municipalities Act, 2019 (for short,

'the Act'). Basing on the same, instant building permission was

granted to the petitioner on 09.02.2022, as such, he has taken

steps to construct the building. Learned counsel submits that the

5th respondent started interfering with the petitioner's

construction without having any valid title and right over the

property. On 01.02.2022, the petitioner's vendors have also

lodged a report with the 4th respondent stating that they have not

sold the said property to the unofficial respondent who is creating

hurdles to the petitioner. The vendors also gave a representation to

the 3rd respondent on 01.02.2022 stating that the property was

sold to the petitioner and no rights were transferred to the

unofficial respondent. It is submitted that the petitioner also

submitted a report on 14.02.2022 and 16.02.2022 about the

illegal constructions being carried out by the 5th respondent over

the petitioner's plot but the official respondents failed to take any

action. He submits that in respect of plot in Survey No. 156, Writ

Petition No. 14375 of 2021 was filed and the said Writ Petition was

disposed of wherein it is observed that revocation order dated

01.06.2021 as well as building permission dated 21.05.2021

issued in favour of the petitioner therein and building permission

dated 30.05.2021 issued by the 2nd respondent in favour of the 3rd

respondent therein are set aside, however, liberty is granted to the

petitioner as well as the 3rd respondent therein to approach the

competent civil Court to decide the title dispute in respect of the

subject plot No.20. He submits that the writ schedule property is

identical and similarly-situated and the vendors are also one and

same. He further submits that the 3rd respondent has failed to act

in a manner known to law and the 3rd respondent is not stopping

the illegal construction being carried out by the 5th respondent

herein under the aid and assistance of the 4th respondent.

3. A counter-affidavit is filed on behalf of the unofficial

respondent. Learned counsel Sri Avinash Desai submits that the

5th respondent is the owner and possessor of Plot Nos. 6 and 26

located in Survey No. 155 of Varidela Village of Kollaur Mandal.

Plot No. 26 is bought by the 5th respondent from one Sri T.V.

Seshagiri Rao and Plot No.6 was bought from his sons in 1987.

The unofficial respondent has constructed common compound

wall covering her property and obtained land regularisation

permission for Plot No. 26 vide proceedings dated 28.02.2017. She

had also taken permission from the Municipality for construction

in Plot No. 26 and obtained electricity connection. Learned counsel

submits that the 5th respondent has been in continuous

possession and enjoyment of the property since the date of

purchase in 1987 and 1993 respectively. The vendors of the writ

petitioner i.e. sons of Sri T.V. Krishna Rao, have tried to dismantle

the compound wall built by the 5th respondent on 11.12.2021 and

disputed the title over the 5th respondent property. It is submitted

that even a suit was filed for declaration of title and perpetual

injunction vide O.S.No. 450 of 2021 on the file of the Junior Civil

Judge's Court at Kollapur with respect to Plot No. 6 against the

vendors of the petitioner and I.A.No. 889 of 2021 for grant of

temporary injunction against the vendors of the petitioner

restraining them from interfering with the possession over plot

No.6. The said suit is pending before the Junior Civil Judge at

Kollapur and the same has been posted for hearing on 23.02.2022.

It is submitted that joint plot (A) in Survey Nos. 149, 150, 152,

153, 154, 155, 156 and 166 of Varidela Village has been

intentionally modified or corrected on multiple occasions in order

to overcome various legal regulations since 2014. Learned counsel

submits that the petitioner has approached this Court with

unclean hands by suppressing certain material facts which are

being brought on record by the 5th respondent. The petitioner has

suppressed the fact that he had initially applied for building

permission and fraudulently obtained permission dated

09.12.2021 for an extent of 200 square yards misrepresenting the

5th respondent property as their own property. He had applied for

permission basing on the registered sale deed where they showed

the boundaries to be that of plot No.6 of the 5th respondent

property. It is submitted that the 5th respondent has also filed a

complaint against the petitioner. Then the official respondents

after issuing notice and considering the submissions, did not find

the Application satisfactory and revoked permission on

09.12.2021. In the said revocation order, it is mentioned that as

per the registered document and link documents provided the

measurements of the plot being claimed by the petitioner did not

tally, the boundaries to the extent submitted under the application

are not matching and the katcha plan of document was not

matching with katcha plan in the link documents. Additionally the

3rd respondent directed the petitioner not to carry out any

construction activity and warned that if any construction is

commenced, the same would be demolished without issuance of

notice under Section 174(4) of the Act and the said aspect has

been suppressed by the petitioner which has attained finality as

the same was not challenged. The unofficial respondent has made

multiple representations to the District Registrar, Mahabubnagar,

Commissioner and Inspector General of Registration and Stamps,

Hyderabad dated 20.01.2022 after noticing discrepancies in the

extent of land and boundaries provided for petitioner property in

the sale deed dated 20.11.2021. After the revocation order is

passed, another sale deed dated 01.02.2022 was registered at

Kollapur Sub-Registrar Office for an extent of only 69.44 square

yards by cancelling the earlier sale deed registered with the Sub-

Registrar Office at Kollapur. Then the 5th respondent once again

brought this to the notice of the authorities. Thereafter, the

petitioner along with his vendors entered into another rectification

deed dated 08.02.2022. It is submitted that basing on this

rectification deed, the petitioner applied for another instant TS-

bPASS approval vide Application dated 09.02.2022 without

disclosing the details of cancellation of sale deed number and

revocation of building permission made under it. He submits that

the present Petition is filed only with an intention to coerce the

unofficial respondent.

4. Learned counsel for the petitioner has relied on the

judgments in Hari Narain v. Badri Das1, Welcom Hotel v. State of

A.P2, G. Narayanaswamy Reddy v. Govt. of Karnataka3, S.P.

Chengalvaraya Naidu v. Jagannath4, MCD v. State of Delhi5, A.V.

Papayya Sastry v. Govt. of A.P.6, Prestige Lights Ltd. v. SBI7, Sunil

Poddar v. Union Bank of India8, K.D. Sharma v. SAIL9, Dalip Singh

v. State of U.P.10, Oswal Fats & Oils Ltd. v. Commr. (Admn.)11,

Ramjas Foundation v. Union of India12, Amar Singh v. Union of

India13, Shanmugam v. Ariya Kshatriya Rajakula Vamsathu

Madalaya Nandhavana Paripalanai Sangam14, Kishore Samrite v.

State of U.P.15, Thatipamula Naresh Kumar and Ors. Vs. The State

(1964) 2 SCR 203 : AIR 1963 SC 1558

(1983) 4 SCC 575 : 1983 SCC (Cri) 872

(1991) 3 SCC 261

(1994) 1 SCC 1

. (2005) 4 SCC 605 : 2005 SCC (Cri) 1322 : 2005 SCC OnLine SC 900

(2007) 4 SCC 221 : 2007 SCC OnLine SC 317

(2007) 8 SCC 449 : 2007 SCC OnLine SC 1026

(2008) 2 SCC 326 : (2008) 1 SCC (Civ) 558 : 2008 SCC OnLine SC 77

(2008) 12 SCC 481 : 2008 SCC OnLine SC 1025

(2010) 2 SCC 114 : (2010) 1 SCC (Civ) 324 : 2009 SCC OnLine SC 1867

(2010) 4 SCC 728 : (2010) 2 SCC (Civ) 237 : 2010 SCC OnLine SC 430

(2010) 14 SCC 38 : (2011) 4 SCC (Civ) 889 : 2010 SCC OnLine SC 1254

(2011) 7 SCC 69 : (2011) 3 SCC (Civ) 560 : 2011 SCC OnLine SC 772

. (2012) 6 SCC 430 : (2012) 3 SCC (Civ) 735 : 2012 SCC OnLine SC 384

(2013) 2 SCC 398 : (2013) 2 SCC (Cri) 655 : 2012 SCC OnLine SC 884

of Telangana and Ors16, Mohammed Saleem Vs. The State of

Telangana17 and submits that a person who has approached this

Court with unclean hands is not entitled for any relief from this

Court.

5. A counter-affidavit has been filed on behalf of the

respondent municipality. It is stated that the petitioner has

applied for building permission on 20.11.2021. Though initially,

permission was granted thereafter, it was revoked. The 5th

respondent gave an Application to the 3rd respondent for

permission to construct a house in Plot No.6 in Survey No. 155 of

Waridela Shivar by producing simple stamped sale deed dated

19.07.1993. On enquiry, no permission was granted however, the

5th respondent started construction in her plot without permission

and she also covered the roof with metal roofing sheets and

without maintaining setbacks. In the meantime, petitioner again

applied under the instant approval by producing the document

dated 01.02.2022 and rectification deed dated 08.02.2022 by

rectifying the extent of plot 61.11 square yards instead of 69.45

square yards. It is stated that the petitioner also gave a complaint

to the 3rd respondent on 14.02.2022 and 16.02.2022 with a

request to dismantle the construction made by the 5th respondent

but the 3rd respondent has informed about the said construction of

(2022) 3 ALD 710

W.P.No.11592 of 2022

the 5th respondent to the higher authority as per the Act vide letter

dated 17.02.2022 and to take action through district task force

team which is pending with the Additional Collector (ULB). It is

submitted that while granting permission, they are acting in

accordance with the provisions of the Act.

6. A reply affidavit has been file by the petitioner stating

about the earlier purchases that were made by the petitioner and

about the rectification deeds and also about the revocation of

permission. It is stated that petitioner approached his vendors who

requested for mutual cancellation of sale deed for which petitioner

and his vendors got executed a cancellation deed dated

01.02.2022. According to the petitioner, this does not amount to

suppression of facts as the earlier sale deed has become

redundant. Learned counsel submits that basing on the alleged

simple sale deed dated 19.07.1993, the 5th respondent has

obtained building permission, then the petitioner had filed

complaint with the municipality on 14.02.2022, 16.02.2022 and

17.02.2022. Basing on the complaint, the Town Planning

Supervisor enquired and recommended to revoke the building

permission of the 5th respondent which is falsely obtained for the

reason that the 5th respondent had not submitted registered sale

deeds and not maintained setbacks.

7. The remedy available to the petitioners under Article

226 of the Constitution of India is an equitable remedy and the

petitioners are expected to approach the Court with clean hands

by disclosing all the facts. It appears from the conduct that

petitioners have no respect to the rule of law.

8. An applicant who does not come with candid facts

and clean freest cannot hold a writ of the Court with 'soiled hands'

suppression or concealment of material 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.

(Kensington Income Tax Commrs18)

9. If the primary object as highlighted in Kensington

Income Tax Commissioners 1977 2 SCC 431 is kept in mind, an

applicant who does not come with candid facts and `clean breast'

(1917) 1 KB 486

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. (K.D.

Sharma v. Steel Authority of India Limited and others19).

10. For many centuries, Indian society cherished two

basic values of life i.e., `Satya' (truth) and `Ahimsa' (non-violence).

Mahavir, Gautam Buddha and Mahatma Gandhi guided the

people to ingrain these values in their daily life. Truth constituted

an integral part of justice delivery system which was in vogue in

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 over-shadowed the old ethos and the

(2008) 12 SCC 481

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

others20.

11. It is of utmost importance that in making material

statements and setting forth grounds in applications for special

leave made under Article 136 of the Constitution, care must be

taken not to make any statements which are inaccurate, untrue

and misleading. In dealing with applications for special leave, the

Court naturally takes statements of fact and grounds of fact

contained in the petitions at their face value and it would be unfair

to betray the confidence of the Court by making statements which

are untrue and misleading. Thus, if at the hearing of the appeal

(2010) 2 SCC 114

the Supreme Court is satisfied that the material statements made

by the appellant in his application for special leave are inaccurate

and misleading, and the respondent is entitled to contend that the

appellant may have obtained special leave from the Supreme Court

on the strength of what he characterizes as misrepresentations of

facts contained in the petition for special leave, the Supreme Court

may come to the conclusion that in such a case special leave

granted to the appellant ought to be revoked (Hari Narain v. Badri

Das21).

12. 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 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

AIR 1963 SC 1558

functioning of the writ courts would become impossible (Prestige

Lights Ltd. V. SBI22).

13. 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 and it is imperative that

the petitioner approaching the Writ Court must come with clean

hands and 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. The same rule was reiterated in G. Jayshree and others v.

Bhagwandas S. Patel and others (2009) 3 SCC 141. (K.D. Sharma

v. SAIL23).

14. This Court in Prestige Lights Ltd. V. State Bank of

India has held that a prerogative remedy is not available as a

matter of course. In exercising extraordinary power, a writ court

would indeed bear in mind the conduct of the party which is

invoking such jurisdiction. If the applicant does not disclose full

facts or suppresses relevant materials or is otherwise guilty of

(2007) 8 SCC 449

(2008) 12 SCC 481

misleading the court, the court may dismiss the action without

adjudicating the matter. It was held thus:

"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."

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

Limited and Others, it was held thus:

"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. (K.Jayaram and others v. Bangalore Development Authority and others24)

16. The discretion exercised by the Court under Article

226 of the Constitution of India is extraordinary, equitable and

2021 SCC online SC 1194

discretionary. While exercising the extraordinary power, the Court

shall necessarily bear in mind the conduct of the parties. A litigant

is bound to disclose all relevant facts. If he holds some material

facts to gain advantage, he is guilty of placing fraud on the Court

as well as on the other side. The conduct of the petitioner in this

case is nothing but playing fraud on the Court as well on the other

side. If these kind of litigants are not eradicated, the result would

be that the citizen will lose faith in the justice delivery system and

also would ruin the rule of law.

17. The relief that is sought by the petitioner in this Writ

Petition is that the unofficial respondent is making illegal

construction and the 3rd respondent is not stopping the said illegal

construction being carried out by the unofficial respondent. Even

as per the counter of the official and unofficial respondent, when

the unofficial respondent want to go ahead with the construction

basing on a simple sale deed and also based on a complaint of the

petitioner, the official respondents are taking steps for demolition.

When it comes to the case of the petitioner, the petitioner has not

stated about any of the facts with regard to the earlier permission

granted, rectification deed, revocation of permission and

cancellation of earlier sale deed etcetera. According to the

petitioner, as the earlier sale deed has become redundant, he has

not mentioned the same. The contention of the learned counsel,

this Court is not able to appreciate. It is not about the sale

transaction becoming redundant. Revocation of building

permission is a very crucial factor. On the face of it, the petitioner

with an intention to obtain orders from this Court has suppressed

the material facts. When the counter is filed on behalf of the

official and unofficial respondent, the petitioner has come up with

all these facts. The issue of the 5th respondent is concerned, it is

already stated that the official respondents are taking steps to

demolish the illegal structures made by her. As far as the

petitioner is concerned, he has approached this Court with

unclean hands hence, he is not entitled for any relief from this

Court.

18. The Writ Petition is accordingly, dismissed with costs

of Rs.15,000/- (Rupees fifteen thousand only) to be payable to the

High Court Legal Services Authority within 6 weeks. No order as to

costs.

19. Consequently, the miscellaneous Applications, if any

shall stand closed.

-----------------------------------

LALITHA KANNEGANTI, J 22nd November 2022

Issue CC forthwith.

ksld