Poonamchand & Others vs State Of Madhya Pradesh & Others

The petitioners have filed the present petition being aggrieved by the order dated 9.3.2016 passed by Collector, District Barwani in Case No.18A-

74/15-16.

The facts of the case, in short, are as under. According to the petitioners, they belongs to a weaker section of the society known as ""Kunbi Patil

Samaj"" (in short 'Samaj') and they are also holding the post of Sarpanch of the said ‘Samaj'. One Bonder S/o. Kalu was granted the land bearing

Survey No.184/1 area 195 Sq.mtr by the Nagar Panchayat on longterm lease.Late Bonder had executed a registered Will in respect of land in favour

of 7 persons /Panchas of the said ‘Samaj' thereafter the they constructed the Hospice (i.e.)Dhramshala over the land. According to the

petitioners, during life time of Bonder, his name was recorded in the records of Municipal Council, Rajpur in respect of ‘Dharmashala' and after his

death, the names of President and ‘Panchas' of the ‘Samaj' were mutated vide resolution dated 14.9.2009 and since then, the ‘Dharmashala' is

being managed by the responsible persons of the ‘Samaj'.

Some of the members of the ‘Samaj' made a complaint to the Collector in ‘Jan Sunwai' against the office-bearers of the ‘Samaj' alleging

misuse and mismanagement of the Hospice in question. In the said complaint, the respondent No.1, Collector got conducted an enquiry from the

subordinate revenue officer, who submitted the report. Thereafter, without issuing any show-cause notice either to the petitioners or other

officebearers of Samaj, he has passed the impugned order dated 9.3.2016 cancelling the mutation in the name of President and Panchas of the

‘Samaj' over the ‘Hospice' in question.He has declared the resolution dated 14.9.2009 as illegal and further held that the said property is a

public property. The Collector has also directed the Tehsildar to take possession of the property viz. ‘Dharmashala' in question from its office-

bearers and directed the Tehsildar to take possession of the ‘Dharmashala' constructed over the land bearing Survey No.184/1 area 195 Sq.mtr.

Being aggrieved by the said order dated 9.3.2016 and 20.12.2016, the petitioners have filed the present petition.

The petitioners have assailed the order mainly on the ground that before passing the impugned orders, no opportunity of hearing was granted them or

any members of the ‘Samaj'. The Collector has acted without jurisdiction as he has no power to interfere with the private affairs of the ‘Samaj'.

The dispute is purely of civil nature, hence the impugned orders are liable to be set aside.

After notice, the respondents have filed the return by submitting that after receipt of the complaint, the Collector has got conducted an enquiry and in

which it was found that the President and five ‘Panchas' of the ‘Samaj' are commercially using the ‘Hospice' as owners thereof. The land over

which the ‘Hospice' is constructed, is a ‘Nazul' land for which a permanent lease was issued in the name of Bondar for construction of talkies.

The ‘Samaj' is using the said land without any authority or ownership. Till 1967, the land in question was recorded as a ‘Nazul' land in the

Panchayat record. One Bonder had executed the registered Will in the name of 7 members of the ‘Samaj' and all the said 7 members have expired

now. Bonder has also died. The Nagar Panchayat while passing the resolution dated 14.9.2009 did not consider the issue of ownership, hence the

Collector has rightly passed the impugned order.

I have heard Shri A.S. Kutumbale, learned senior counsel appearing for the petitioners and Shri Pushyamitra Bhargava, learned Dy. Advocate

General, appearing for the respondents No.1 and 2 and Ms. Swati Ukhale, learned counsel appearing for respondent No.3.

The petitioners are claiming the ownership over the land in question and the ‘Hospice' by virtue of Will dated 10.5.1967.Thereafter, vide resolution

dated 14.9.2009, the land and ‘Hospice' were mutated in the name of Kunbi Patil Samaj' through President and 5 ‘Panchas'. The petitioners have

not filed any document to show that ‘Samaj' is a body registered under the provisions of The Society Registration Act. Copy of the Will is also not

on record. The report was given by the Sub Divisional Officer that, Bonder had executed the Will in favour of 7 persons, who have expired. The lease

of the land in question was given for construction of talkies. The petitioners have failed to produce any documents to show as to how and when the

purpose of the lease has been changed. There is no allotment of land in favour of ""Kunbi Patil Samaj"". There is no permission by the Municipal

Corporation for construction of ‘Hospice'. Therefore, the Collector has rightly cancelled the resolution dated 14.9.2009 and directed the Tehsildar to

take the possession of the land in question. If the petitioners or ""Kunbi Patil Samaj"" want to establish their right and title over the Hospice, they may

approach the Civil Court and obtain a decree of declaration and permanent injunction on the basis of so-called Will.

That in order to get relief in a writ petition under Art. 226 of the Constitution of India the petitioners must have legal or statutory rights then only

they can claim equity from this court .The Apex Court in case of Ramesh Chandra Sankla Vs.Vikram Cement, reported in (2008) 14 SCC 58Â has

held as under:-

Now, it is well settled that jurisdiction of the High Courts under Articles 226 and 227 is discretionary and equitable. Before more than half a

century, the High Court of Allahabad in the leading case of Jodhey v. State , AIR 1952 All 788 observed: (AIR p. 792, para 10)

“10. … There are no limits, fetters or restrictions placed on this power of superintendence in this clause and the purpose of this article seems to be

to make the High Court the custodian of all justice within the territorial limits of its jurisdiction and to arm it with a weapon that could be wielded for

the purpose of seeing that justice is meted out fairly and properly by the bodies mentioned therein.â€​ (emphasis supplied)

The power of superintendence under Article 227 of the Constitution conferred on every High Court over all courts and tribunals throughout the

territories in relation to which it exercises jurisdiction is very wide and discretionary in nature. It can be exercised ex debito justitiae i.e. to meet the

ends of justice. It is equitable in nature. While exercising supervisory jurisdiction, a High Court not only acts as a court of law but also as a court of

equity. It is, therefore, power and also the duty of the Court to ensure that power of superintendence must “advance the ends of justice and uproot

injusticeâ€​.

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From the above cases, it clearly transpires that powers under Articles 226 and 227 are discretionary and equitable and are required to be exercised

in the larger interest of justice. While granting relief in favour of the applicant, the court must take into account the balancing of interests and equities.

It can mould relief considering the facts of the case. It can pass an appropriate order which justice may demand and equities may project. As

observed by this Court in Shiv Shankar Dal Mills v. State of Haryana (1980)2 SCC 437 , courts of equity should go much further both to give and

refuse relief in furtherance of public interest. Granting or withholding of relief may properly be dependent upon considerations of justice, equity and

good conscience.

The Supreme Court of India in case of Dalip Singh v. State of U.P., reported in (2010) 2 SCC 114 has held as under:-

In Prestige Lights Ltd. v. SBI (2007)8 SCC 449 , 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 (1917)1 KB 486 (CA) and observed: (Prestige

Lights Ltd. Case (2007)8 SCC 449 , 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 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.

In A.V. Papayya Sastry v. Govt. of A.P. (2007)4 SCC 221 , the Court held that Article 136 does not confer a right of appeal on any party. It

confers discretion on this Court to grant leave to appeal in appropriate cases. In other words, the Constitution has not made the Supreme Court a

regular court of appeal or a court of error. This Court only intervenes where justice, equity and good conscience require such intervention.

In Sunil Poddar v. Union Bank of India (2008)2 SCC 326, the Court held that while exercising discretionary and equitable jurisdiction under Article

136 of the Constitution, the facts and circumstances of the case should be seen in their entirety to find out if there is miscarriage of justice. If the

appellant has not come forward with clean hands, has not candidly disclosed all the facts that he is aware of and he intends to delay the proceedings,

then the Court will non-suit him on the ground of contumacious conduct.

In K.D. Sharma v. SAIL (2009)12 SCC 481, the Court held that 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. Jayashree v. Bhagwandas S. Patel (2009)3 SCC 141.

The Apex Court again in case of Ritesh Tewari v. State of U.P., reported in (2010) 10 SCC 677 has held as under:-Â

The power under Article 226 of the Constitution is discretionary and supervisory in nature. It is not issued merely because it is lawful to do so. The

extraordinary power in the writ jurisdiction does not exist to set right mere errors of law which do not occasion any substantial injustice. A writ can be

issued only in case of a grave miscarriage of justice or where there has been a flagrant violation of law. The writ court has not only to protect a

person from being subjected to a violation of law but also to advance justice and not to thwart it. The Constitution does not place any fetter on the

power of the extraordinary jurisdiction but leaves it to the discretion of the court. However, being that the power is discretionary, the court has to

balance competing interests, keeping in mind that the interests of justice and public interest coalesce generally. A court of equity, when exercising its

equitable jurisdiction must act so as to prevent perpetration of a legal fraud and promote good faith and equity. An order in equity is one which is

equitable to all the parties concerned. The petition can be entertained only after being fully satisfied about the factual statements and not in a casual

and cavalier manner. (Vide Champalal Binani v. CIT (1971)3 SCC 20 ; Chimajirao Kanhojirao Shirke v. Oriental Fire and General Insurance Co. Ltd.

(2000)6 SCC 622 ; LIC v. Asha Goel (2001)2 SCC 160; Haryana Financial Corpn. v. Jagdamba Oil Mills(2002) 3 SCC 496; Chandra Singh v. State of

Rajasthan (2003) 6 SCC 545 and Punjab Roadways v. Punja Sahib Bus and Transport Co.(2010)5 SCC 235)

Where a party’s claim is not founded on valid grounds, the party cannot claim equity. A party that claims equity must come before the court

with clean hands as equities have to be properly worked out between parties to ensure that no one is allowed to have their pound of flesh visà -vis the

others unjustly. (Vide Sikkim Subba Associates v. State of Sikkim (2001)5 SCC 629.)

In A.P. State Financial Corpn. v. Gar Re-Rolling Mills (1994)2 SCC 647 , this Court observed: (SCC p. 662, para 18)

“18. … Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law.â€​

In M.P. Mittal v. State of Haryana (1984)4 SCC 371 , this Court held: (SCC p. 374, para 5)

“5. … it is open to the High Court to consider whether, in the exercise of its undoubted discretionary jurisdiction, it should decline relief to such

petitioner if the grant of relief would defeat the interests of justice. The Court always has power to refuse relief where the petitioner seeks to invoke

its writ jurisdiction in order to secure a dishonest advantage or perpetuate an unjust gain.â€​

This Court in State of Maharashtra v. Prabhu (1994)2 SCC 481 considered the scope of equity jurisdiction of the High Court under Article 226 of

the Constitution and pointed out as follows: (SCC p. 486, para 5)

“5. … It is the responsibility of the High Court as custodian of the Constitution to maintain the social balance by interfering where necessary for

sake of justice and refusing to interfere where it is against the social interest and public good.â€​

The present appeal does not present any special featurewarranting exercise of equitable discretionary jurisdiction in favour of the appellants. The

equity jurisdiction is exercised to promote honesty and not to frustrate the legitimate rights of the other parties.

It is settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development

cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the

competence of any authority to validate such an order. It would be ironical to permit a person to rely upon a law, in violation of which he has obtained

the benefits. (Vide Upen Chandra Gogoi v. State of Assam (1998)3 SCC 381; Satchidananda Misra v. State of Orissa (2004)8 SCC 499 and SBI v.

Rakesh Kumar Tewari (2006)1 SCC 530.)

In C. Albert Morris v. K. Chandrasekaran (2006)1 SCC 528 ,this Court held that a right in law exists only and only when it has a lawful origin.

In Mangal Prasad Tamoli v. Narvadeshwar Mishra (2005)3 SCC 422, this Court held that if an order at the initial stage is bad in law, then all

further proceedings consequent thereto will be non est and have to be necessarily set aside.

Accordingly, this petition is devoid of merit and substance hence deserves to be and is hereby dismissed.

No order as to costs.