SPA/462/2022
2023 Latest Caselaw 150 UK

             IN THE HIGH COURT OF UTTARAKHAND
                                  AT NAINITAL
                   HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
                                          AND
                     HON'BLE SRI JUSTICE MANOJ KUMAR TIWARI

                    SPECIAL APPEAL NO. 462 OF 2022
                            10TH JANUARY, 2023
BETWEEN:
Kamal Katiyar                                                  .....Appellant.
And

Commissioner, Kumaon Mandal Nainital & another

                                                                ....Respondents.

Counsel for the Appellant : Mr. Rajendra Arya and Mr. Pankaj Kumar, learned counsels.

Counsel for the Respondent No.1 : Mr. S.S. Chaudhary, learned Brief Holder.

Counsel for the Respondent No.2 : Mr. Akshay Joshi, proxy counsel for Mr. Sandeep Kothari, learned counsel.

The Court made the following:

JUDGMENT:(per Hon'ble The Chief Justice Sri Vipin Sanghi)

Issue notice. Learned counsels appear and accept

notice on behalf of the respondents.

2. We have heard learned counsels and proceed to

dispose of this special appeal at this stage.

3. The appellant has assailed the order dated

18.11.2022, passed by the learned Single Judge, in Writ

Petition (M/S) No.2570 of 2022. The impugned order reads as

follows:-

"Mr. Pankaj Kumar, the learned counsel for the petitioner.

Mr. Yogesh Pandey, the learned Addl. C.S.C. for the State.

Mr. Akshay Joshi, the learned counsel holding brief of Mr. Sandeep Kothari, the learned counsel for the respondent no. 2.

Heard.

The petitioner has filed this petition by suppressing the material facts. Earlier, the petitioner has already approached this Court by filing Writ Petition No. 1085 of 2022 (M/S) which was disposed of by the Co-ordinate Bench on 20.05.2022 giving direction to the Commissioner Kumaon to decided the petitioner's application within three weeks from the date of production of certified copy of this order and in the interim order of status quo qua the construction raised by the petitioner shall be maintained.

The writ petition should be dismissed because of the suppression of the material fact.

Hence, the writ petition is dismissed with a cost of Rs. 10,000/- to be paid by the petitioner to the High Court Bar Association, Nainital within ten days' hence, failing which same shall be recovered as arrear of land revenue."

4. The appellant earlier preferred a writ petition being

Writ Petition No.1085 of 2022 (M/S), which was disposed of

by the learned Single Judge on 20.05.2022. The order passed

by the Court was that the representation/ application of the

appellant-writ petitioner be decided by the Commissioner,

Kumaon. In pursuance of that order, the Commissioner,

Kumaon decided the representation/ application made by the

appellant, on 08.08.2022,. This order dated 08.08.2022 was

put to challenge in the writ petition in question, i.e. Writ

Petition (M/S) No.2570 of 2022. The learned Single Judge

dismissed the said writ petition on the ground that the

appellant-writ petitioner has suppressed from the Court the

fact that he had earlier preferred a writ petition being Writ

Petition No.1085 of 2022 (M/S), which was disposed of on

20.05.2022. The appellant is aggrieved by the dismissal of

the writ petition on the ground of suppression of material

facts and imposition of costs on the appellant.

5. We have heard learned counsels. We have also

perused the order dated 08.08.2022, passed by the

Commissioner, Kumaon, in pursuance of the order dated

20.05.2022, passed in Writ Petition (M/S) No.1085 of 2022.

6. We cannot agree with the finding returned by the

learned Single Judge to the effect that the appellant made

any suppression of any material fact, while filing the writ

petition, which, if disclosed, would have had a bearing on the

outcome of the writ petition.

7. The factum of the appellant having preferred an

earlier writ petition, which was disposed of on 20.05.2022

with the direction to the Commissioner, Kumaon, to decide

the appellant's representation/ application, was itself noticed

in the order dated 08.08.2022, impugned in the writ petition.

Therefore, a perusal of the impugned order dated

08.08.2022, in respect whereof, writ petition was preferred,

would have disclosed to the Court that the appellant had

preferred an earlier writ petition, which was disposed of on

20.05.2022 with a direction to the Commissioner, Kumaon to

decide the appellant's representation/ application.

8. The aspect of suppression of facts becomes

relevant, if, firstly, those facts are material to determine the

lis between the parties, and suppression or misstatement of

those facts would have a bearing on the ultimate result of the

lis.

9. In the present case, neither of these aspects are

present. Firstly, there is factually no suppression by the

appellant. Secondly, filing and disposal of the earlier writ

petition with a direction to the Commissioner, Kumaon to

decide the appellant's representation/ application, on the

basis of which, the impugned order came to be passed, is not

a material fact. Thirdly non-disclosure of the earlier

proceedings expressly in the writ petition, had no bearing on

the decision in the writ petition, since the fact allegedly not

disclosed was history, and it was the order dated 08.08.2022,

passed by the Commissioner, Kumaon, which was put under

challenge.

10. We, therefore, allow the present special appeal,

and set-aside the impugned order, and remand back the writ

petition to the learned Single Judge for hearing on its merits.

The writ petition be listed before the learned Single Judge on

15.02.2023.

11. Pending application, if any, also stands disposed of.

(VIPIN SANGHI, C.J.)

(MANOJ KUMAR TIWARI, J.) Dated: 10th January, 2023 NISHANT