State Of Uttarakhand vs State Of Uttarakhand And
2021 Latest Caselaw 98 UK

              HIGH COURT OF UTTARAKHAND

                         AT NAINITAL

           ON THE 11TH DAY OF JANUARY, 2021

                                BEFORE:

     HON'BLE SHRI JUSTICE SHARAD KUMAR SHARMA


           Writ Petition No.2595 of 2020 (M/S)


BETWEEN:
      Pradeep Singh (Male) Aged About 49 Years, S/o Late Sri Prem Singh
      R/o House No.47, Main Market, Chamoli Tehsil- Chamoli, District-
      Chamoli.

                                                                 ....Petitioner

      (By Smt. Seema Sah, Advocate)



AND:
1.    State of Uttarakhand, through its Secretary, Excise, Government of
      Uttarakhand Secretariat Dehradun.

2.    Excise Commissioner, Government of Uttarakhand, Dehradun.

3.    District Magistrate/Collector, Chamoli District Chamoli.

4.    Additional District Magistrate/Collector, Chamoli District Chamoli.

                                                            .....Respondents


      (By Sri G.S. Negi, Additional Chief Standing Counsel)




                            JUDGEMENT

At times, there arises occasions for the Court, where no latitude for forgiveness, could be extended at all, for all genuine causes and reasons, which the petitioner or

his counsel might be having when it entails consideration of an act of concealment of a vital and critical fact, have a direct nexus and bearing on the case presented.

2. The facts which engages consideration, here are, that the petitioner of the present writ petition, and including the connected writ petitions also; had admittedly earlier approached the writ court by way of Writ Petition No.1289 of 2019 (M/S), Pradeep Singh vs. State of Uttarakhand and others, praying for the following reliefs:-

"i. Issue a writ of certiorari quashing the impugned orders dated 10.01.2019 and recovery citation dated 20.02.2019 passed by respondent no.3 and 5 respectively (contained as Annexure No.1 (Colly) to this writ petition) ii. Issue a writ, order or direction in the nature of mandamus commanding the respondents to permit the petitioner to deposit the entire amount in easy installments as fixed by this Hon'ble Court.

iii. Issue any other or further writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.

iv. Award the cost of the petition in favour of the petitioner."

3. It is settled law, by judicial precedents; that a recovery proceedings, which are initiated against the borrower by the financial institutions, are always governed by the terms of the loan agreement which is binding between the parties and the courts do not have any power, as such to fix installments, until and unless an exception is carved out in case if some solace or consent is shown by the counsel for the bank or any financial institution, during the course of the proceedings. This is what has been held

by the Division Bench of the Allahabad High Court; that the writ courts under Article 226 of the Constitution of India; have got no exclusive powers to fix installment on its own, by sitting over the terms of any loan agreement, which has been executed between the two contracting parties. But however in the Writ Petition No.1289 of 2019 (M/S), which was preferred by the petitioner for the above relief was disposed of by the judgment of 13.05.2019 with the following directions:-

"Learned counsel for the petitioner is directed to pay entire outstanding recovery amount along with recovery charges, if any, in 24 equal installments. The monthly installment shall be paid on or before 8th day of each month. However, it is clarified that if any default is made, respondents shall be at liberty to proceed against the petitioner in accordance with law."

Whereby, the Coordinate Bench of this Court had already fixed 24 installments which were directed to be remitted by the petitioner, in relation to the outstanding loan amount which was due to be paid by the petitioner, in pursuance to the recovery citation dated 20.02.2019, which was issued against him and was also challenged in the writ petition.

4. The writ petition as detailed above was ultimately laid to rest by the said judgment of 13.05.2019.

5. The petitioner on 30.12.2020, yet again approached the Writ Court, invoking a writ jurisdiction under Article 226 of the Constitution of India whereby this time the petitioner has sought the following reliefs:-

"i. Issue a writ, order or direction in the nature of mandamus directing the respondent no.3 to consider the case of the petitioner and pass a fresh order by modifying the notice/recovery citation dated 20.02.2019. ii. Issue a writ, order or direction in the nature of mandamus directing the respondent no.3 to pass the order in the representation submitted by the petitioner.

iii. Issue any other and further order, which this Hon'ble Court may deem fit and proper in the circumstances of the case.

iv. Award the cost of the writ petition to the petitioner."

6. In fact, the tacit challenge which was yet again given by the petitioner, in the subsequent writ petition, was yet again, to consider the case of the petitioner; afresh in relation to the same recovery proceedings which was contemplated to be resorted to against him, under the recovery citation of 20.02.2019. The Court had initially not passed any orders, as such on 06.01.2021, and the matter was directed to be posted today.

7. In the subsequent writ petition, which was preferred by the petitioner, whereby the modification was sought by the petitioner in relation to the recovery citation of 20.02.2019, was a prayer made and culled out and crafted, without disclosing the fact that the petitioner, has earlier approached before this Court by way of Writ Petition No.1289 of 2019 (M/S), as against the same recovery citation dated 20.02.2019. This fact of filing of an earlier writ petition and passing of the order dated 13.05.2019, as was passed by the Coordinate Bench of this Court of fixing the 24 installments payable by the

petitioner, was a fact, which was not disclosed by the petitioner in the subsequent writ petition. As per opinion of this Court, the said fact itself will amount to be a deliberate and intentional concealment of a material fact intended to mislead the Court, with a malicious intention to procure an order of modification of the recovery citation, in relation to which the Court had already earlier interfered and had already fixed 24 installments, by the judgment of 13.05.2019.

8. In fact, nature of relief sought for by the petitioner in the subsequent writ petition, in case if, it would have been granted, it would have amounted to sitting over the earlier directions without a challenge being given before Superior Court, and judgment of 13.05.2019, even without informing the Court and without challenging the judgment dated 13.05.2019, that there was already a direction for fixing the installments to be paid by the petitioner. I am of a confirm view that no latitude could be, or should be shown by the courts, to such type of counsel or parties to the deliberate dereliction, should be done by the writ courts under Article 226 of the Constitution of India, which is an equitable jurisdiction and it is available only to those litigants, who approached the Court with clean hands.

9. There has been a consistent preposition, which has been laid down by the Hon'ble Court as well as by the different High Courts of the country, which provides that when a litigant approaches that Court and that to particularly the constitutional courts for the enforcement of his fundamental rights or a breach of fundamental right, he

is bound to approach to the courts with clean hands and it is expected that for pressing for his relief, he ought to have disclosed a full and correct facts, which may have a material bearing on the final adjudication of the case. If the gravity of concealment of a fact if it has got any effect on the finality which is likely to be rendered in a writ petition as a consequence of a fact not being brought on record before the Court no latitude is to be shown to such a litigants and a writ petition ought to be dismissed. This is what has been postulated by the judgment reported in AIR 1991 Supreme Court 1726, G. Narayanaswamy Reddy (dead) by L.Rs. and another vs. Government of Karnataka and another. Para 2 of the said judgment, which is referred to hereunder deal with the said principles:-

"2. The petitioners were the owners of certain lands which were acquired by the respondents under the provisions of Sections 17 and 19 of the Bangalore Development Act, 1976 (hereinafter referred to as "the Bangalore Act"). Under the provisions of Section 36 of the Bangalore Act, where the acquisition is otherwise than by agreement, it will be regulated by the provisions, as far they are applicable, of the Land Acquisition Act, 1894 (hereinafter referred to as "the Land Acquisition Act"). Section 11-A of the Land Acquisition Act, which section was included in the said Act in 1984 as set out hereinafter, very briefly stated, provides that the Collector must make his award within two years from the date of the publication of the declaration and that if no award is made within that period, the entire proceedings for acquisition of the land shall lapse.

Under the Explanation to the first proviso to Section 11-A, "the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded". It was, inter alia contended by the petitioners that as the awards in these cases has not been made within two years of the notification making the declaration under Section

4 of the Land Acquisition Act, the entire acquisition proceedings had lapsed. That contention was repelled along with certain other contentions in the judgment of the High Court which is sought to be impugned before us. The relevant dates which have to be borne in mind in this connection, are as follows:

The notification making the declaration under Section 4 of the Land Acquisition Act in respect of the lands in question was made on September 20, 1977. On September 20, 1984 Section 11-A which introduced into the Land Acquisition Act by the Land Acquisition (Amendment) Act, 1984, was brought into force. Under the first proviso to Section 11-A it was prescribed that where the said declaration (under Section 4 of the Land Acquisition Act) has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award must be made within a period of two years from such commencement. Thus, the award should have been made within two years from September 20, 1984. On September 11, 1985, the petitioners obtained an interim order from this Court directing status quo with regard to the possession of the lands in question in Special Leave Petition No. 294 of 1985 preferred against the order of the Karnataka High Court dated August 14, 1984, with which we are not directly concerned here. The said Special Leave Petition No. 294 of 1985 was dismissed on April 29, 1987. On December 16-17, 1987, two writ petitions were filed by the respective petitioners in the Karnataka High Court challenging the acquisition on the ground that the awards were not made within the stipulated time. In these two writ petitions, the Karnataka High Court granted interim stay of further proceedings in respect of the acquisition of the said lands. These petitions were dismissed by a learned Single Judge of that High Court on November 29, 1988. Appeals against the decision of a learned Single Judge were dismissed by the Karnataka High Court on October 6, 1989, by a Division Bench of that

High Court. The petitioners preferred these Special Leave Petitions, namely S.L.P. Nos. 823 and 824 of 1990 against the decision of the Division Bench of that High Court, and obtained an interim stay of dispossession therein. Whatever the ultimate effect of the stay orders, in view of the provisions of Section 11-A of the Land Acquisition Act, to which we have already referred earlier, it is beyond dispute that the fact of the stay orders was highly material in the determination of these Special Leave Petitions. Curiously enough, there is no reference in the Special Leave Petitions to any to the stay orders and we came to know about these orders only when the respondents appeared in response to the notice and filed their counter affidavit. In our view, the said interim orders have a direct bearing on the question raised and the non- disclosure of the same certainly amounts to suppression of material facts. On this ground alone, the Special Leave Petitions are liable to be rejected. It is well-settled in law that the relief under Article 136 of the Constitution is discretionary and a petitioner who approaches this Court for such relief must come with frank and full disclosure of facts. If he fails to do so and suppresses material facts, his application is liable to be dismissed. We accordingly dismiss the Special Leave Petitions."

10. Dealing with yet another judgment, almost laying down the same principle as already precisely discussed above, yet another judgment of the Hon'ble Apex Court reported in AIR 1993 Supreme Court 852, The Ramjas Foundation and others vs. Union of India and others has also laid down, almost an identical principle in para 7 of the said judgment which has provided that a person invoking an equitable jurisdiction of the Court is bound to approach the Court with clean hands and should not conceal

the material facts. Para 7 of the said judgment is referred to hereunder:-

"7. As regards the objection of the violation of the mandatory provisions of Section 5A of the Act in not affording an opportunity of personal hearing while deciding such objections, we granted an opportunity to the learned Additional Solicitor General to place material after examining the original record. We granted this opportunity to the respondents on account of the reason that the writ petition had been dismissed by the High Court in limine without issuing notice to the respondents and as such the respondents had not been given any opportunity before the High Court to place any material to refute the allegations made by the appellants in this regard. The Additional Solicitor General during the course of the hearing of the matter placed an order of the Land Acquisition Collector, Delhi dated February 23, 1968 which has been taken on record and for the purposes of identification has been marked as Annexure 'X'. A copy of the said Annexure 'X' was also given to the learned Counsel for the appellants. A perusal of the aforesaid order dated March 22, 1968 clearly shows that the Ramjas Foundation Society was represented through Shri Ratan Lal Gupta, Advocate who was given a personal hearing. From a perusal of the aforesaid document Annexure 'X' dated February 23, 1968 it is clear that full opportunity of hearing through counsel was afforded to the Ramjas Foundation. It has been further mentioned in this order that the Ramjas Foundation Society was also allowed to file fresh objections if so desired, but Shri Ratan Lal Gupta, learned Advocate for the petitioner Society declined and stated that there was nothing more to add in the previous objection petition. After bringing the said document Annexure 'X' to the notice of the learned Counsel for the appellants, no satisfactory explanation or argument came forward on behalf of the appellants. The conduct of the appellants in raising the plea that no opportunity of personal hearing was given to the appellants in respect of the objections filed under Section 5A of the Act was totally baseless and factually incorrect and

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such conduct is reprehensible. It is well settled that a person invoking an equitable extraordinary jurisdiction of the Court under Article 226 of the Constitution is required to come with clean hands and should not conceal the material facts. The objection regarding not affording an opportunity of personal hearing in respect of objections filed under Section 5A of the Act was one of the main planks of the grounds raised in the writ petition as well as in the special leave petition filed before this Court and ought we know if such ground had not been taken this Court would have entertained this appeal or not. The appellants have taken the advantage of obtaining the stay order also from this Court which is continuing for the last 14 years as the special leave petition was filed in 1978 itself."

11. Concealment itself would be sufficient enough ground to dismiss the writ petition.

12. However, the counsel for the petitioner faced with such a situation had prayed that:-

i. To permit her to file a supplementary affidavit, in the subsequent writ petition in order to enable her, to bring the fact on record of the filing of the earlier writ petition and the orders passed on it. At this stage, this Court is of the view that filling of a supplementary affidavit in a writ petition, is not granted as of a right and that too in the light and the circumstances of the present case; where the fact which was concealed was intended to be brought on record, was a fact which was well within the knowledge of the petitioner, when the second writ petition itself was filed on 29.12.2020, as he himself was the petitioner and signatory of the earlier writ

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petition. Hence, in order to overcome an intent of deliberate concealment of fact to mislead the Court, made in the subsequent writ petition, cannot be permitted to be rectified by granting permission to file supplementary affidavit. Hence, the same is denied.

ii. The counsel for the petitioner had subsequently prayed that she may be permitted to withdraw the writ petition. Permitting to withdraw the writ petition, would yet again be a prayer, which is not available to the petitioner for the reason being that this Court is of the view that once the writ petition has been filed in the Registry; it becomes the property of the Court, and it cannot be permitted to be withdrawn at the wisdom or wanting of a party, or the choice of the counsel for the petitioner and that too particularly when it intends to overcome an act of concealment and not approaching the Court with clean hands, as has been made by the petitioner because the petitioner was to face the consequences of concealment made by him by filing the second writ petition without disclosing the fact of filing an earlier writ petition and procurement of an earlier judgment.

iii. Thirdly, learned counsel for the petitioner had submitted that the subsequent writ petition, was seeking the relief for the modification of the recovery citation of 20.02.2019. The prayer for modification taken as a pretext for filing a second writ petition, I am of the view is yet again a plea, which is not available, once where a challenge of recovery citation of 20.02.2019, was already crystallized and concluded on merits by an order of 13.05.2019, by fixing installments by this Court, there could not be a

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subsequent modification by way of a grant of writ of mandamus, in relation to the recovery citation, which was the subject matter of challenge in the earlier writ petition.

13. In that view of the matter itself the prayer as sought for, is declined. The writ petition is dismissed on the ground of concealment of material fact having direct bearing, and not coming with clean hands, subject to payment of cost of Rs.10,000/- to be deposited in the High Court Bar Association Advocates Welfare Fund.

(Sharad Kumar Sharma, J.)

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