Shashi Singla vs State of Haryana and Others

G.S. Singhvi, J.—The petitioner has challenged the deemed cancellation of the plot allotted to her under the discretionary quota of the Chief Minister. She has prayed that Annexures P.5 and P.6 issued by the Estate Officer, Haryana Urban Development Authority, Faridabad, be quashed and the respondents be restrained from interferring with her possession over the plot.

Though the petitioner has not given complete facts, the record produced by Shri H.S. Chahar, shows that in the pursuance of the directions given by the then Chief Minister, Haryana, the Secretary, Town and Country Planning Department, wrote letter No. PS-CTP/87, dated 4.6.1987 to the Chief Administrator H.U.D.A. to take action for issuance of formal allotment letter in favour of the petitioner in respect of plot No. 361, Sector 21-C, Faridabad. Vide memo No. ADA-HUDA-87/18808, dated 11.6.1987, the Chief Administrator asked the Estate Officer, H.U.D.A. Faridabad to issue letter of allotment on her depositing 25% of the tentative, cost of the plot at the rate of Rs. 263.12 per square meter. On receipt of these directions, the Estate Officer wrote memo dated 23.6.1987 to the petitioner requiring her to deposit Rs. 28,540/- on or before 11.7.1987 and submit her affidavit along with 3 attested specimen signatures. However, before actual allotment could be made in favour of the petitioner, the State Government directed the cancellation of all allotments/offer of allotment made under the discretionary quota of the Chief Minister. In furtherance of this decision, the Estate Officer wrote letter dated 11.9.1987 to the petitioner conveying the cancellation of offer made to her. The demand draft sent by the petitioner was returned to her on 28.10.1987.

It is also borne out from the record that the policy decision taken by the Government to cancel the allotment made under the discretionary quota was quashed by this court in S.R. Dass v. State of Haryana (1988) 93 P.L.R. 430. After the decision of the High Court, the Estate Officer wrote letter dated 20.5.1988 to the petitioner to furnish necessary information in the prescribed proforma and to file an affidavit. This the petitioner did on 28.8.1988. After about one-and a half year, the petitioner submitted draft dated 9.3.1990. Another draft dated 21.11.1990 was submitted by her to make up 25% of the tentative price of the plot. After receiving this amount, the competent authority issued letter of allotment dated 7.3.1991 and the petitioner conveyed her acceptance and remitted demand draft of Rs. 27,500/-. The possession of the plot allotted to the petitioner was handed over to her on 28.1.1997. However, in view of the Full Bench decision in Anil Sabharwal Vs. State of Haryana and Others, , the Estate Officer wrote Annexure P-5 to the petitioner, about the deemed cancellation of the allotment made in her favour and asked her to seek refund of the amount deposited by her. Vide Annexure P-6, the Estate Officer-cum-Collector, H.U.D.A. issued notice to the petitioner u/s 18(1)(b) of the Haryana Urban Development Authority Act, 1977 and asked her to hand over the possession of the plot.

The petitioner has challenged the cancellation of her plot on the following grounds:

(a) The allotment of plot made to her in 1987 cannot be treated as cancelled because the judgment in Anil Sabharwal''s case (supra) is confined to the allotments made under the discretionary quota on or after 31.10.1989.

(b) The action of the respondents seeking to dispossess her is violative of the principles of natural justice, inasmuch as no notice or opportunity of hearing was given to her before the cancellation of the plot.

The respondents have defended their action on the ground that the plot has been allotted to her on 7.3.1991 and not on 11.6.1987, as claimed by the petitioner. Their case is that the offer of allotment made in the year 1987 cannot be equated with the actual allotment of plot and no right accrued in favour of the petitioner till the issuance of allotment letter dated 7.3.1991 (Annexure R-3/1).

We have heard Shri H.S. Gill, Senior Advocate, appearing for the petitioner, and Shri R.S. Chahar, counsel for H.U.D.A. and in our opinion, the writ petition deserves to be dismissed on account of the contumacious conduct of the petitioner and also because it is without merit. A careful reading of the averments made in the writ petition and the documents enclosed with it show that the petitioner has deliberately refrained from mentioning the fact that the draft sent by her in pursuance of memo Annexure P-1 dated 11.6.1987 was returned by the Estate Officer on 28.10.1987. She has also suppressed the fact that the allotment letter was actually issued on 7.3.1991 after 25% of the tentative price was deposited vide drafts dated 9.3.1990 and 21.11.1990. She has also conveniently refrained from mentioning that she has accepted the allotment vide letter dated 3.4.1991, In order to show that the petitioner did not produce the letter of allotment dated 7.3.1991 and the letter dated 3.4.1991 by which she conveyed her acceptance of allotment with a malafide intention of mis-leading the Court, we deem it appropriate to reproduce paragraphs 2 and 5 of the letter of allotment, Annexure Rule 3/1 and the letter dated 3.4.1991: Paragraphs 2 and 5 of the letter Annexure R-3/1.

"2. Your application has been considered and a residential plot as detailed below, has been allotted to you on free-hold basis as per following terms and conditions and subject to the provisions of the Haryana Urban Development Authority Act, 1977, (hereinafter referred to as the Act) and the rules/regulations made thereunder and as amended from time to time. The approximate area of the site/building and the tentative price of the plot given below, are subject to the adjustment in accordance with the actual measurement at the time of delivery of possession.

Sector Name of Plot No. Appr. Area m. Tentative No. Urban Area. dimension Sq. yard., price o of the plot. description 21-C Faridabad 361 500 Rs. 21,929/- Sq. yards. Rs. 438.58 per sq.yard. -------------------------------------------------------------------------------- xx xx xx

In case you accept this allotment, please send your acceptance by registered AD post along with an amount of Rs. within 30 days from the date of issue of the allotment letter which together with an amount of Rs. 54822.50 P. paid by you along with your application form as earnest money, will constitute....percent of the total tentative price".

Letter dated 3.4.1991

"To

The Estate Officer, HUDA, Faridabad.

Subject:- Allotment by sale of residential plot No. 361, Sector 21-C, at Faridabad on free-hold basis.

Ref: Your office letter no. 449, dated 7.3.1991.

In response to your letter under reference, I hereby accept this allotment. Now, I am enclosing a demand draft of New Bank of India, Chandigarh, amounting to Rs. 27500/- bearing No. 186139, dated 3.4.1991 as an instalment of the balance amount of Rs. 164467.50.

Please acknowledge its receipt.

Yours faithfully,

Sd/- Shashi Singla W/o Sh. Prem Kumar Singla, H.No. 2071, Sector 15-C, Chandigarh."

We are sure that if the petitioner had placed the letter of allotment and the letter by which she accepted the allotment, the Court would not have issued notice of motion, which it did on 11.11.1997 on the assumption that the plot had been allotment to her more than 2 years and 4 months prior to the cut off date fixed in the decision of the Full Bench i.e. 31.10.1989. The intention of the petitioner to suppress these important facts from the Court was to secure a favourable order by keeping the Court in dark about the true facts regarding the allotment of plot under the discretionary quota. This Conduct of the petitioner, in our view, dis-entitles her from getting any relief under Article 226 of the Constitution. The principle that a person who invokes writ jurisdiction of the High Court must come with clean hands and must make true and candid disclosure of all the facts and that no attempt should be made to pollute the pure fountain of justice by concealing the facts and by making an attempt to mis-lead the Court, is well settled. The Courts have time and again emphasised the need of not granting any indulgence to the petitioner whose conduct is contumacious.

In Rex v. Kensington 3 1917 (1) KB 486 Cozens Hardy M.R. made the following observations on the conduct of a party in an ex-parte application in the following words:-

On an ex-parte application unberrima fides is required, and unless that can be established if there is anything like deception practiced on the Court, the Court ought not to go into the merits of the case, but simply say we will not listen to your application because of what you have done."

Lord Scrutton L.J. said :-

"It has for many years the rule of the Court and one which it is of the greatest importance to maintain, that when any 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, facts not law........The applicant must state fully and fairly the facts and the penalty by which the court enforces that obligation is that it finds out that the facts have 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."

In R. v. Churchwardens of All Saints Wigan (1876) 1 AC 611 Lord Haterlay observed:-

"Upon a prerogative writ there may arise may matters of discretion which may induce the Judges to withhold the grant of it - matters connected with delay or possibly with the conduct of the parties".

In Req. v. Gerland (1870) 39 L.J.B. 86 it was held:

"Where a process is ex dbito justitiae the Court would refuse to exercise its discretion in favour of the applicant where the application is found to be wanting in bona fides."

Hari Narain Vs. Badri Das, , is a case in which the Apex � Court entertained an objection raised on behalf of the respondents that for securing leave to appeal, the appellant had made mis-statement of facts. While upholding the objection and directing the revocation of leave, the Apex Court observed :-

"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 or misleading. In dealing with applications for special leave, the Court naturally takes statements of facts 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 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 respondents is entitled to contend that the Supreme Court on the strength of what he characterises 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 the revoked."

In Welcom Hotel and Others Vs. State of Andhra Pradesh and Others, , the Supreme Court held that a party which has misled the Court in passing an order in its favour is not entitled to any consideration at the hands of the Court.

In G. Narayanaswamy Reddy (dead) by L.Rs. and another Vs. Government of Karnataka and another, , the Supreme Court declined relief to the appellant who had concealed the fact that the award was not made by the Land Acquisition Officer within the time specified in Section 11-A of the Land Acquisition Act on account of interim stay order passed in a writ petition. While rejecting the special leave petition, the Court observed :-

"Curiously enough, there is no reference in the Special Leave Petitions to any of the stay order and we come to know about these orders only when the respondents appeared in response to the notice and filed their counter affidavits. 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 SLP 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."

In S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, the Supreme Court has held that one who comes to Court must come with clean hands and where a preliminary decree was obtained by playing fraud on the Court inasmuch as a vital document was withheld in order to gain advantage on the other side, such party would be guilty of playing fraud and such party deserves to be thrown out at any stage of the litigation.

In State of Haryana and others Vs. K.N. Dutt, and Agricultural and Processed Food Products Vs. Oswal Agro Furane Ltd. and others, , the Supreme Court reiterated the principle that equitable jurisdiction of the Court should not be exercised in favour of a party which is guilty of contumacious conduct.

In Nand Lal and Ors. v. State of Jammu and Kashmir and Anr. AIR 1960 J & K 19, a learned Judge of Jammu and Kashmir High Court held that if a party does not disclose all the facts correctly and candidly, it is not entitled to be heard on the merit of the case. Following observations made in that case are quite instructive and are, therefore, reproduced below :-

"Where the petitioners under Article 226 have not stated the relevant facts correctly and candidly either in their petition, or in the affidavit in support of their petition, this is by itself sufficient to entail an outright dismissal of the writ petition without going into its merits, and even if the petitioners have a good case on merits the Court will be entitled to decline to go into the merits and dismiss their petition, because the conduct of the petitioners has been such as to mislead the Court."

In S.H. Motor Transport Co. Vs. Motilal and Others, , a Division Bench of the Bombay High court enunciated the principle regarding exercise of equity jurisdiction by the High Court in the following words :

"Petitioners who invoke the extraordinary jurisdiction of the High Court under Article 227 of the Constitution are required to exercise utmost care, inform themselves fully of every stage of the proceedings that has taken place upto the date the petition is filed, give a full and true account of those proceedings, file all the necessary documents in support of their averments and then claim relief on the basis of facts disclosed in the petition. It is not open to a petition under Article 226 or Article 227 of the Constitution to pick and choose his own facts or to determine in advance what is relevant and material, omit to mention all material facts and proceedings and orders and then claim that he has acted bona fide even though he has made untrue statements, omitted to inform the Court of all the proceedings and the orders passed at different stages in the proceedings upto date and claim indulgence."

In Abdul Gafoor Vs. State of M.P. and Another, a Division Bench of the Madhya Pradesh High Court invoked this principle for denying relief to a person whose conduct with reference to the subject matter of the petition was found to be inequitable and unfair.

In G. Appukkuttan Pillai Vs. Government of India and Others, a Full Bench of the Kerala High Court held that where a Government servant has not made full and true disclosure of facts but has in order to put forward that case of violation of the principles of natural justice chosen to suppress his representation and the adverse order thereon, is not entitled to hearing on the merits of the case.

In Om Parkash and Ors. v. State of Rajasthan AIR 1978 Raj 52 a learned Single Judge of that High Court reiterated the principles of law on the subject in the following words :-

"The position of law is well established that the party who seeks to invoke extraordjnary jurisdiction of the High Court must come with all bona fides, must make true, full and candid disclosure of all the relevant facts and further should not be wanting in bonafides in its conduct. By bona fides'' what is meant is that the party is to collect all material facts with due care and attention and it will be not sufficient on the part of the party seeking to invoke extraordinary jurisdiction to say that the facts were not within the knowledge after taking due care and efforts to find them out. If it does not do so and suppresses any material/act and thereby obtains a rule nisi or stay order the court will not grant any relief to it on merits."

This court has also taken a serious view of the contumacious conduct of a party and has declined relief in a large number of cases. In Smt. Bhupinderpal Kaur v. The Financial Commissioner (Revenue), Punjab (1968) 70 P.L.R. 169 a learned Single Judgji held that if the High Court comes to the conclusion that affidavit in support of the application for grant of a writ was not candid and did not fully state the facts but either suppressed the material facts or stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent an abuse of its process, refuse to proceed any further with the examination of the merits and where there is such a conduct which is calculated to deceive the Court into granting the order of rule nisi, the petition should on that short ground be dismissed.

In Chiranji Lal and Ors. v. Financial Commissioner, Haryana and Ors. (1978) 80 P.L.R. 582 a Full Bench approved the observations made in Bhupinderpal Kaur''s case (supra) and held that where there has been a mala fide and calculated suppressions of material facts which, if disclosed, would have disentitled the petitioners to the extraordinary remedy under the writ jurisdiction or in any case would have materially affected the merits on both the interview and ultimate relief claimed, the writ petition should not be entertained.

In Harbhajan Kaur v. State of Punjab and Ors. 1994 P.L.J. 287 a Division Bench held as under :-

"The writ petitioners have tried to approach the Court. They did not bring the correct facts to the notice of the Court and obtained an order from us by concealing material facts and without impleading vitally affected party to the writ petition. They have been fighting litigation against the Punjab Wakf Board since 1986 as is revealed from a perusal of the order passed in petition No. 363 of 1986 (Sham Singh and Anr. v. Punjab Wakf Board). They did not disclose that their applications for transfer of land were dismissed by the Tehsildar (Sales) and on appeal, the orders were affirmed by the Sales Commissioner and that the appeals against the orders of the Sales Commissioner were pending before the Chief Sales Commissioner; that the Punjab Wakf Board had been contesting their claim and in those proceedings it had been held that the Punjab Wakf Board was the owner of the disputed land and that in judicial proceedings. Smt. Kuldip Kaur and her husband had made admission that the Punjab Wakf Board was the owner of the disputed land."

The Court further held that this conduct of the petitioners amount to contempt of Court and, therefore, issued a notice of contempt of Court.

In Jai Bhagwan Jain v. Haryana State Electricity Board, Panchkula, C.W.P. No. 15448 of 1993, Anr. Division Bench of this Court considered various precedents and then held as under :-

"It is the duty of the party seeking relief under Article 226 and 136 of the Constitution of India to make full and candid disclosure of all the facts and leave it to the Court to determine whether relief deserves to be given to the petitioner or not. The petitioner is also under a duty to make all efforts to find out all facts of the case before filing the petition and he cannot be heard to say that he is not aware of the facts concerning him. The petitioners has to demonstrate his bona fides, before seeking relief from the Court in exercise of its equitable jurisdiction. It is not for the petitioner to decide as to which of the facts are relevant and which are not relevant. The petitioner cannot become a Judge on the question of relevancy of facts. Non-disclosure of all the facts in a candid and straight forward manner will necessarily warrant dismissal of a petition."

In the same very case, the Division Bench further held :

"We may further add that a petitioner will not be entitled to be heard on the merits of the case where he is found guilty of concealment of facts or of making misstatement before the Court only on the ground that no stay order has been passed by the Court. It is to be remembered that the Court considers a petition with the assumption that the averments made in the petition are true and correct. In a given situation, the court may finally decide a petition, ex parte where the non-petitioner does not appear despite service of notice. If a party suppresses facts from the Courts, such ex-parte decision may be rendered on the basis of incorrect or incomplete facts. Therefore, it is no answer to the charges of suppression of facts or misstatement of facts before the Court to say that no interim relief has been given to the petitioner or that he has not derived any benefit. In our opinion, the very issue of a notice on a petition is a benefit derived . by the petitioner. If subsequently it is found that the petitioner has misled the Court or persuaded it in issuing notice by concealment of true facts of the case there will be ample jurisdiction for dismissing the petition."

In Pawan Kumar v. State of Haryana and Anr. 1994 (5) S.L.R. 73, Anr. Division Bench of this Court held that a party who seeks relief from the High Court in the exercise of its equitable jurisdiction under Article 226 of the Constitution, must come with all bona fides, must make true, candid and full disclosure of all the relevant facts. Its conduct must be above board and there should be no attempt by a party to mislead the Court.

In Kaka Ram Pars Ram and Others Vs. State of Punjab and Others, the Court refused to hear the petition on merits on the ground that the petitioners have deliberately withheld the facts and succeeded in misleading the Court to pass interim order in their favour despite the fact that a similar order was vacated by a Co-ordinate Bench. This judgment has been indirectly approved by the Apex Court in Chint Ram Ram Chand and Others Vs. State of Punjab and Others, .

Applying the ratio of the above mentioned decisions to the facts of this case,-we hold that the petitioner, who is guilty of suppressing the facts from the Court and deliberately withholding important documents, is not entitled to any relief.

Even on merits, we do not find any substance in the grievance made by the petitioner against the deemed cancellation of the plot allotted to her under the discretionary quota. The memo Annexure P-1 dated 11.6.1987, is not the letter of allotment. Rather, it is a communication by the Chief Administrator, HUDA to the Estate Officer, HUDA Faridabad to make allotment on receipt of 25% of the tentative cost of the plot. However, before the actual allotment could be made, the ; government cancelled the allotments already made as well as the offer of allotment. No doubt, in S.R. Das''s case, the High court invalidated the policy decision of the Government but the effect of that decision qua the petitioner was no more than to '' revive the offer of allotment. As per her own admission, the petitioner deposited the two drafts in March and November, 1990 representing 25% of the tentative cost. The allotment was actually made vide Annexure Rule 3/1 dated 7.3.1991 which she accepted on 3.4.1991. Therefore, the case of the petitioner is squarely covered by the judgment of the Full Bench in Anil Sabharwal''s case which stands affirmed by the Supreme Court with the dismissal of SLP No. CC 4325 of 1997, decided on 7.5.1997.

The petitioner''s grievance that she was condemned unheard is misconceived because before deciding the issues raised in Anil Sabharwal''s case (supra) the Court had issued general notice to all the affected parties and given them opportunity to represent their cases before the Court. It was open to the petitioner to appear and submit her reply to the Court. However, the petitioner did not appear to contest the notice. Therefore, she cannot be heard to say that she has been deprived of her right to retain possession of the plot allotted to her on 7.3.1991 without notice and opportunity of hearing.

For the reasons mentioned above, the writ petition is dismissed.