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CALCUTTA HC:- Coming with unclean hands – disqualifies litigant from obtaining any relief

September 24, 2014 Leave a comment

“….the contesting respondent has come to the High Court with unclean hands and withholds a vital document in order to gain advantage on the other side. In our opinion, he would be guilty of playing fraud on the Court as well as on the opposite party. A person whose case is based on falsehood can be summarily thrown out at any stage of the litigation. We have no hesitation to say that a person whose case is based on falsehood has no right to

approach the Court and he can be summarily thrown out at any stage of the litigation…………”

Pls refer the entire Judgment below

IN THE HIGH COURT AT CALCUTTA

Criminal Revisional Jurisdiction Appellate Side

PRESENT:THE HON’BLE MR JUSTICE KALIDAS MUKHERJEE

CRR NO. 999 OF 2006

Md. Ashiruddin & Anr.
Vs.
State of West Begal & Anr.

For the Petitioner :Mr. Milon Mukherjee, Sr. Adv. Mr. Lutful Haque,Ms. Ameena Kabir

For the State : Mrs. Krishna Ghosh

HEARD ON: 18.03.2008.

JUDGMENT ON:25.03.2008

KALIDAS MUKHERJEE, J.:

1. This is an application under Section 482 read with Section 300 Cr.P.C. praying for quashing of Hanskhali P.S. Case No. 281 dated 06.12.2005 under Section 498A/34 I.P.C. pending in the Court of learned Additional Chief Judicial Magistrate, Ranaghat, District – Nadia.

2. The petitioner No. 1 is a retired Sub-Inspector of Police and the petitioner No. 2 is a Constable. The first wife of petitioner No. 1 died and thereafter he again married O.P. No. 2 Rojina Bibi on 25.06.2004 according to Muslim Shariat Laws and both of them were leading conjugal life in village Murcha, P.S. Khargram, District – Murshidabad. O.P. No. 2 was a widow at the time of her marriage with petitioner No. 1 and had a son and two daughters out of her previous marriage. The petitioner No. 1 used to reside in Krishnanagar where he was posted and the O.P. No. 2 was residing in village Morcha. There was difference of opinion between the spouses. O.P. No. 2 filed a case against the petitioner No. 1 under Section 498A/325 I.P.C. being Kotwali P.S. Case No. 95/2005 dated 06.4.2005. Charge sheet was issued on 15.4.2005 being C.S. No. 80/2005 under Section 498A I.P.C. The O.P. No. 2 complained of mental and physical torture. On 11.4.2005 O.P. No. 2 made an affidavit before the learned Sub-Divisional Judicial Magistrate, Krishnanagar stating that she had no complaint against her husband whatsoever. In the affidavit she stated that when she went to Krishnanagar, a person took her signatures on some blank sheets and taking advantage of that filed a case against her husband. She also stated that her husband never committed torture upon her physically or mentally and that they had been leading a happy conjugal life. On 9th June, 2005 the petitioner No. 1 was discharged by the learned S.D.J.M., Krishnanagar on the basis of affidavit made on 11.4.2005. Thereafter the petitioner No. 1 divorced to the O.P. No. 2 on 04.8.2005 and communicated the same by registered post with A.D. dated 13.8.2005 and 18.8.2005, but, the registered letter dated 18.8.2005 came back to the petitioner as ‘refused’ by the O.P. No. 2. O.P. No. 2 filed a case in the Court of Chief Judicial Magistrate, Krishnanagar on 29.8.2005 under Section 498A/34 I.P.C. against the petitioners, but, no effective step was taken thereof. The O.P. No. 2 also filed a case in the Court of Additional Chief Judicial Magistrate, Krishnanagar against the petitioner No. 1 under Section 125 Cr.P.C. being case No. 481 of 2004. The O.P. No. 2 also filed another case under Section 498A/34 I.P.C. (G.R. No. 1343 of 2005) Hnaskhali P.S. Case No. 281 dated 06.12.2005, in the Court of Additional Chief Judicial Magistrate, Ranaghat. The allegations raised against the petitioners are false and concocted. The continuance of proceeding under Section 498A/34 I.P.C. in Hanskhali P.S. Case NO. 281 dated 06.12.2005 is unwarranted and will be the abuse of the process of the Court. In view of the discharge of the petitioner No. 1 from earlier case being Kotwali P.S. Case No. 95 of 2005, the instant case being Hanskhali P.S. Case No. 281 dated 06.12.2005 under Section 498A/34 I.P.C. cannot proceed and the same is not maintainable. Under the circumstances, the petitioner has filed the instant application praying for quashing of the proceeding under Section 482 Cr.P.C.

3. Mr. Mukherjee appearing on behalf of the petitioners submits that the earlier case ended in discharge on 09.6.2005 passed by learned S.D.J.M., Krishnanagar in G.R. Case No. 408 of 2005, Kotwali P.S. Case No. 95 of 2005. Mr. Mukherjee submits that the divorce was effected on 04.8.2005 when the factum of divorce was communicated to O.P. No. 2 herein. Mr. Mukherjee contends that same allegation as made in the earlier complaint was raised against the petitioner No. 1 herein in the subsequent petition of complaint which was sent to P.S. under Section 156(3) Cr.P.C. on 06.12.2005 bearing Hanskhali P.S. Case No. 281 dated 06.12.2005. Mr. Mukherjee contends that there is no allegation under Section 406 I.P.C. in the instant case and, moreover, there is suppression of material facts in the subsequent complaint being Hanskhali P.S. Case No. 281 date 06.12.2005. Mr. Mukherjee contends that when the petitioner No. 1 was discharged in the earlier case which ended in his discharge on 09.6.2005, the subsequent case on the same allegations bearing Hanskhali P.S. Case No. 281 dated 06.12.2005 is not maintainable. Regarding the suppression of material facts viz. discharge of the petitioner No. 1 in the earlier case, Mr. Mukherjee has referred to and relied on the decisions reported in 2005 SCC (Cri)1322 [MCD Vs. State of Delhi and another] para 21 and (2004)7 SCC 166 [S.J.S. Business Enterprises (P) Ltd. V. State of Bihar and others] para 13.

4. Mrs. Ghosh appearing on behalf of the State submits that the petitioner No. 1 herein was the Sub-Inspector of Police and regarding the alleged torture meted out to O.P. No. 2, there are medical reports and statements of the witnesses recorded under Section 161 Cr.P.C. It is contended that it is not clear whether there was divorce or not by way of Talaknama. As regards the allegation of torture under Section 498A I.P.C. on the same facts in the subsequent case, Mrs. Ghosh contends that the manner of alleged torture upon O.P. No. 2 in the second case was different and there is added period of alleged torture. Mrs. Ghosh contends that O.P. No. 2 was assaulted by the petitioner No. 1 as per allegation and in view of the medical reports and the statements of the witnesses recorded under Section 161 Cr.P.C., there is no ground to quash the proceedings pending in the learned Court below. Mrs. Ghosh contends that the petitioner No. 1 herein can raise such question in the Trial Court at the appropriate stage, but, not in the instant application under Section 482 Cr.P.C.

5. From the F.I.R. of Kotwali P.S. Case No. 95 of 2005 dated 06.4.2005 G.R. No. 408 of 2005 it appears that the occurrence of the alleged offence was after the marriage till the date of lodging the F.I.R. i.e. 06.4.2005. It further appears that the said case bearing No. 408 of 2005 ended in the discharge of the accused under Section 245 Cr.P.C. The learned Magistrate considered the affidavit filed by the defacto-complainant in the said case wherein it was stated that she was leading her conjugal life happily with her husband. On hearing the defacto-complaint and considering the contentions raised in the affidavit, the learned Magistrate recorded the order of discharge under Section 245 Cr.P.C. Subsequently, the instant case bearing Hanskhali P.S. Case No. 281 dated 06.12.2005 was started. The petition of complaint was sent to the P.S. under Section 156(3) Cr.P.C. and the F.I.R. was registered bearing No. 281 dated 06.12.2005. In the said petition of complaint the occurrence of the alleged offence was after marriage extending up to 24.8.2005. It is, therefore, clear that the period of alleged torture as per the subsequent complaint also includes the period of torture as raised in the earlier complaint which ended in discharge of the accused. By filing the affidavit stating that she was living happily with her husband which enabled the Court to record order of discharge, the defacto complainant put an end to the allegation of torture as raised in the earlier petition of complaint and, as such, the same allegation over the same period cannot be reopened.

6. Secondly, in the second petition of complaint there is no whisper about the contention raised in the earlier complaint and the order of discharge made therein. Mr. Mukherjee in this connection has referred to the decision reported in 2005 SCC (Cri) 1322 para 21 (Supra). The observation of the Hon’ble Apex Court made in para 21 of the aforesaid decision is quoted hereunder:-

“This apart, the respondent did not also disclose the fact in the criminal revision filed before the High Court that he has also been convicted in another Criminal Case No. 202 of 1997 by the Court of Metropolitan Magistrate, Patiala House, New Delhi. Thus, the contesting respondent has come to the High Court with unclean hands and withholds a vital document in order to gain advantage on the other side. In our opinion, he would be guilty of playing fraud on the Court as well as on the opposite party. A person whose case is based on falsehood can be summarily thrown out at any stage of the litigation. We have no hesitation to say that a person whose case is based on falsehood has no right to

approach the Court and he can be summarily thrown out at any stage of the litigation…………”

The observation of the Hon’ble Apex Court made in the decision reported in (2004)7 SCC 166 para 13 (Supra) is quoted hereunder:- “As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of Court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case…………”

7. Since in the subsequent petition of complaint there is no whisper about the earlier petition of complaint followed by the order of discharge of the accused persons, such non-disclosure amounts to suppression of material facts, inasmuch as, had it not been suppressed, it would have an effect on the merits of the case. Following the ratio of the aforesaid decisions, I find that it is a fit case for quashing of the proceedings in the exercise of the jurisdiction under Section 482 Cr.P.C. The application under Section 482 read with Section 300 Cr.P.C. is allowed. Accordingly, the proceedings of Hanskhali P.S. Case No. 281 dated 06.12.2005 under Section 498A/34 I.P.C. pending in the Court of learned Additional Chief Judicial Magistrate, Ranaghat stand quashed.

8. Let a copy of this order be sent to the learned Court below immediately.

9. Urgent Xerox certified copy of this order, if applied for, be handed over to the parties as early as possible.

( Kalidas Mukherjee, J. )

Supreme Court Of India- No one should indulge in immoral acts like perjury, prevarication and motivated falsehoods : 2 weeks Jail

October 19, 2012 Leave a comment

Supreme Court of India

 

 

Chandra Shashivs Anil Kumar Verma on 14 November, 1994
Equivalent citations: 1995 SCC (1) 421, JT 1994 (7) 459
Bench: H B.L.

PETITIONER:

CHANDRA SHASHI

Vs.

RESPONDENT:

ANIL KUMAR VERMA

DATE OF JUDGMENT14/11/1994

BENCH:

HANSARIA B.L. (J)

BENCH:

HANSARIA B.L. (J)

KULDIP SINGH (J)

CITATION:

1995 SCC (1) 421 JT 1994 (7) 459

1994 SCALE (4)944

ACT:

HEADNOTE:

JUDGMENT:

The Judgment of the Court was delivered by B.L. HANSARIA, J.- The stream of administration of justice has to remain unpolluted so that purity of court’s atmosphere may give vitality to all the organs of the State. Polluters of judicial firmament are, therefore, 424

required to be well taken care of to maintain the sublimity of court’s environment; so also to enable it to administer justice fairly and to the satisfaction of all concerned.

2.Anyone who takes recourse to fraud, deflects the course of judicial proceedings; or if anything is done with oblique motive, the same interferes with the administration of justice. Such persons are required to be properly dealt with, not only to punish them for the wrong done, but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of justice.

3.These prefatory remarks well project the importance of the point under consideration in this suo motu contempt action taken against respondent Anil Kumar for his having filed a fabricated document to oppose the prayer of his wife seeking transfer of a matrimonial proceeding from Delhi to Unnao. It shall be first required to be seen whether Anil did file a fabricated document and then we shall address ourselves as to whether filing of a forged document with intention to defraud amounts to contempt of court, as this expression has been defined in Section 2 of the Contempt of Courts Act, 1971 (the Act).

4.Insofar as the first aspect is concerned, we entertain no doubt, as the case put by Anil contemner in his show- cause that the Experience Certificate dated 4-3-1993 purportedly from the Principal, V.S.S.M. Inter College, Moti Nagar, Unnao, had been signed by Khem Chandra, the Principal, is not acceptable on the face of the affidavit of the Principal himself, according to whom, the certificate is a “forged and fabricated document”. The averments in the show-cause filed by Anil, after issuance of contempt notice, that he had contacted one A.K. Mathur, working as Additional General Manager in Ordnance Factory at Kanpur, who in turn spoke to one V.K. Upadhyay, Manager of the Armapur Gas Agency at Kanpur, who ultimately obtained the certificate, have nothing to commend inasmuch as the contemner has not been successful, despite opportunity having been given, to produce any supporting material either from Shri Mathur or Shri Upadhyay. The further statement in the show-cause that three other teachers of the College used to sign in the name and as Khem Chandra and that Shri Khem Chandra, the Principal himself, signed in different styles has really made the matter worse. These averments made in the show- cause do not merit acceptance and we entertain no doubt that Anil had filed a forged and fabricated document to resist the prayer of his wife to get the matrimonial proceeding transferred on the ground of her poverty i.e. it was done with an oblique motive.

5.The real question is whether filing of the aforesaid forged and fabricated document amounts to contempt. According to Shri Gangull, appearing for Anil Kumar, this does not. Let it be seen whether the contention advanced by Shri Ganguli is tenable.

6.In Section 2(a) of the Act “contempt of court” has been said to mean civil contempt or criminal contempt. The latter expression has been defined in Section 2(c) to mean the publication of a matter which, inter alia, 425

interferes or tends to interfere with due course of any judicial proceeding, or interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice.

7.There being no decision of this Court (or for that matter of any High Court) to our knowledge on this point, the same is required to be examined as a matter of first principle. Contempt jurisdiction has been conferred on superior courts not only to preserve the majesty of law by taking appropriate action against one howsoever high he may be, if he violates court’s order, but also to keep the stream of justice clear and pure (which was highlighted more than two and half centuries ago by Lord Hardwicke, L.C. in St. James’s Evening Post case) so that the parties who approach the courts to receive justice do not have to wade through dirty and polluted water before entering their temples. The purpose of contempt jurisdiction was summarised as below by Lord Morris in Attorney General v. Times Newspapers Ltd.2:

.LM15

“In an ordered community courts are established for the pacific settlement of disputes and for the maintenance of law and order. In the general interests of the community it is imperative that the authority of the courts should not be imperilled and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable interference is suppressed it is not because those charged with the responsibilities of administering justice are concerned for their own dignity: it is because the very structure of ordered life is at risk if the recognised courts of the land are so flouted that their authority wanes and is supplanted.”

8. To enable the courts to ward off unjustified interference in their working, those who indulge in immoral acts like perjury, prevarication and motivated falsehoods have to be appropriately dealt with, without which it would not be possible for any court to administer justice in the true sense and to the satisfaction of those who approach it in the hope that truth would ultimately prevail. People would have faith in courts when they would find that (truth alone triumphs) is an achievable aim there; or (it is virtue which ends in victory) is not only inscribed in emblem but really happens in the portals of courts.

9. The aforesaid thoughts receive due support from the definition of criminal contempt as given in Section 2(c) of the Act, according to which an act would amount be so if, inter alia, the same interferes or tends to interfere, or obstructs or tends to obstruct the administration of justice. The word ‘interfere’, means in the context of the subject, any action which checks or hampers the functioning or hinders or tends to prevent the performance of duty, as stated at p. 255 of Words and Phrases (Permanent Edn.), Vol.

22. As per what has been stated in the aforesaid work at p. 147 of Vol. 29 obstruction of justice is to interpose obstacles or impediments, or to hinder, impede or in any manner interrupt or prevent the administration of justice. 1 (1742) 2 Atk 469: 26 ER 683

2_ 1974 AC 273, 302: (1973) 3 All ER 54, 66: (1973) 3 WLR 298

426

Now, if recourse to falsehood is taken with oblique motive, the same would definitely hinder, hamper or impede even flow of justice and would prevent the courts from performing their legal duties as they are supposed to do.

10. A reference to standard textbooks on contempt, to wit, C.J. Miller’s Contempt of Court; Oswald’s Contempt of Court; and Anthony Arlidge & David Eady’s The Law of Contempt would amply bear what has been stated above; and that if a forged and fabricated document is filed, the same may amount to interference with the administration of justice. Of course, for the act to take this colour there is required to be an element of deceit or the knowledge of the statement being forged or fabricated. This is what finds place at pages 399 to 401 (2nd Edn.); page 62 (1993 Reprint); and pages 186 and 188 (1982 Edn.) respectively of the aforesaid treatises.

11. These statements are based on some important decided cases. It would be enough for our purpose to note two such decisions, one of which is by the Privy Council and the other by a King’s Bench Division.

12. In the Privy Council case titled Moses Amado Taylor, Re3 which was on appeal from the Supreme Court of Sierra Leone, what had happened was that the appellant, a barrister, who had enrolled as solicitor of the Supreme Court of the said Colony, applied to the Acting Chief Justice for a warrant for the arrest of one Wright on the ground that he was about to leave the settlement, despite his owing some money to his client. This prayer was rejected. Subsequently, an application was made to one of the police magistrates for a warrant for the arrest of the same person upon a criminal charge of assault and a warrant was issued accordingly. As the Acting Chief Justice had earlier refused the warrant, the Supreme Court felt that the entire proceeding initiated by the appellant was an abuse to the process of justice and it was held that the appellant, by initiating the criminal proceedings, was influenced by the intention of defying the Acting Chief Justice who refused the civil warrant of arrest; and being of this view the appellant was held guilty of contempt and his name was ordered to be removed from the roll of barristers and solicitors of the Supreme Court in question, apart from being fined. On appeal being preferred to the Privy Council, it was held that as the evidence did not show any intent to defraud on the part of the appellant no contempt was committed; at the most he had committed an irregularity for which some pecuniary penalty was adequate punishment. The importance of this case for our purpose is that had the Privy Council felt satisfied about intent to defraud, the appeal would have been dismissed and the view taken by the Supreme Court of Sierra Leone that the appellant was guilty of contempt would have been upheld. What emerges from this decision is that if a person does anything to defraud the court, he commits its contempt.

13. The King’s Bench judgment was rendered in R. v. Weisz, ex p Hector MacDonald Ltd.4 Lord Goddard, C.J. (speaking for the Court) held the action of the type, which was one of recovery of money on the basis of

3 1912 AC 347: 81 LJPC 169 : 105 LT 973 : 28 TLR 204, PC 4 (1951) 2 KB 611 :(1951) 2 All ER 408

427

account stated though there was none, as an abuse of the process of the court but not per se a contempt. It was however added that if the attempt were to deceive by disguising the true nature of the claim, the same would be contempt. On the facts of the case it was found that the solicitor firm had committed contempt as it had endorsed the writ (which was for money won at betting) for a fictitious, though apparently a legal cause of action, as Parliament had ordained that courts are not to be used for realising such monies. The action was, therefore, regarded as an interference with, or distortion of, the course of justice. (A different view was, however, taken insofar as the litigant himself was concerned as he had done nothing to bring a feigned issue before the court.)

14.The legal position thus is that if the publication be with intent to deceive the court or one made with an intention to defraud, the same would be contempt, as it would interfere with administration of justice. It would, in any case, tend to interfere with the same. This would definitely be so if a fabricated document is filed with the aforesaid mens rea. In the case at hand the fabricated document was apparently to deceive the court; the intention to defraud is writ large. Anil Kumar is, therefore, guilty of contempt.

15.Before applying our mind to the question of sentence, we would advert to an offer of unconditional apology tendered by Anil Kumar in his affidavit filed on 29-10-1994. A perusal of the same shows that this was done after the deponent formed an impression, when the matter was argued in court in his presence on 24th October, 1994 (on which date the judgment was also reserved), that we were of the view that he had committed wrong. The affidavit further states that if he would be punished, his life would “get shattered”, as after his divorce proceeding was completed recently he could secure a job and has started his “life afresh”. Thus, the apology tendered is not a product of remorse or contrition, which it has to be to merit acceptance, as stated in M.B. Sanghi v. High Court of Punjab & Haryana5 in which case it was also pointed out that an apology merely to protect against rigours of law is no apology. In Major General B.M. Bhattacharjee v. Russel Estate Corpn.6 an “unconditional apology” while trying to justify the act (similar is the position here as would appear from the averments made in paragraph 5 of the aforesaid affidavit) was not accepted. Recently, in K.A. Mohammed Ali v. C.N. Prasannan7, a belated apology sought was refused.

16.Had the contemner shown real contriteness and regret for the act done, we would have perhaps accepted his apology; but as it cannot be used as a weapon of defence to get purged of the guilt, which precisely the contemner has sought to do as he desires to avoid worldly suffering which would follow if sentenced, we reject his offer and proceed to decide the question of sentence. Let it be first seen whether sentence of fine would meet the ends of justice. In our view, such a sentence would not be conducive to 5 (1991) 3 SCC 600: 1991 SCC (Cri) 897

6 (1993) 2 SCC 533

7 1994 Supp (3) SCC 509 : JT (1994) 6 SC 584 428

the larger cause of maintenance of purity in the portals of court inasmuch as if a fabricated document with oblique motive can be filed in the Apex Court, a serious view for the same has to be taken to maintain a modicum of fairness in courts below. This apart, the increasing tendency of taking recourse to objectionable means to get a favourable verdict in the courts has to be viewed gravely to deter the large number of persons approaching courts from doing so. Such a tendency is required to be curbed, which requires somewhat deterrent sentence.

17.Keeping in view the above, we award sentence of two weeks’ imprisonment to the contemner. We would have indeed awarded a longer period of incarceration because of the gravity of contumacious act fabrication of document to defeat just cause of an adversary and thereby seriously affecting the purity of courts’ proceeding but we have refrained from doing so as this is the first occasion in free India when this Court (for that matter may be any court of the country) has felt called upon to send a person like the contemner behind iron bars in exercise of contempt jurisdiction. We have restricted the period of imprisonment to two weeks in the hope that the incarceration of this contemner will work- as eye-opener and no court will henceforth feel constrained and to do so in any other case. We have traversed the untreaded path guardedly, because the assumption of contempt jurisdiction by a court requires zealous and careful movement as the affected party faces a summary trial and the prosecutor himself acts as a judge.

18. The proceeding stands disposed of accordingly. 433

Madras HC- CrPC 340 Prejury Citation

October 13, 2012 Leave a comment

Madras High Court

Advocates … vs Dr. A.S. Anand, Hon. The Cji And Anr on 14 February, 2001
Author: Thomas
Bench: K Thomas, R Sethi, B Agrawal.

CASE NO.:

Writ Petition (civil) 77 of 2001

PETITIONER:

MADRAS HIGH COURT ADVOCATES ASSOCIATION

Vs.

RESPONDENT:

DR. A.S. ANAND, HON. THE CJI AND ANR.

DATE OF JUDGMENT: 14/02/2001

BENCH:

K.T. Thomas, R.P. Sethi & B.N. Agrawal.

JUDGMENT:

L…I…T…….T…….T…….T…….T…….T…….T..J

Thomas, J.

Heard the petitioner Mr. Karuppan who argued in person.

This writ petition is filed under Article 32 of the Constitution of India to determine the age of the present Chief Justice of India Dr. Justice A.S. Anand by declaring that he was born on 1.11.1934, and then to declare that he had attained the age of superannuation on 31.10.1999 and consequently to issue a writ of quo warranto against him.

The petitioner is described as the Madras High Court Advocates Association. The writ petition is filed by R. Karuppan as petitioner-in-person who has also sworn to an affidavit stating that the facts contained in the writ petition are true to his knowledge and that no part of it is false and nothing material is concealed therefrom.

In the meanwhile, the Registry of this Court received a petition from some persons describing themselves to be the members of the Madras High Court Advocates Association which is signed by 76 persons who claim to be members of the said Association. In that petition it is stated that Madras High Court Advocates Association had not taken any decision to file any Writ Petition or to initiate any other proceedings against the Chief Justice of India. It is requested therein that the Supreme Court shall not entertain any petition filed by Sri R.Karuppan either on behalf of the Madras High Court Advocates Association or using his name as President of the said Association.

We do not propose to take any heed to the said petition, as the same has not been properly filed in this Court. We proceed to consider the Writ petition, as we may assume that this Writ Petition was filed by Sri R.Karuppan on behalf of the said Association. Even otherwise since Sri R.Karuppan is entitled to file a Writ Petition on his own in his individual capacity as well, we are bound to consider it judicially.

After reading the averments and the reliefs prayed for in the writ petition and after hearing the arguments made at length by Mr. Karuppan in support of them, we have no hesitation to say that this writ petition is an abuse of the process of the court. Apart from the non-disclosure of what fundamental right of the petitioner has been infringed or to be enforced through this writ petition, it is a reckless action to malign and scandalise the highest judicial institution of this country.

The writ petition contains many statements which are ex facie false. Petitioner knows very well that the President of India has determined the dispute in 1991 concerning the age of Dr. Justice A. S. Anand even when he was judge of a High Court. We asked Mr. Karuppan to show us the document which he came across for making the demand that the date of birth of Dr. Justice A.S. Anand should be declared as 1st November, 1934. In spite of repeatedly putting the question he was not able to point out even one paper in which the date of birth of the first respondent is shown as 1st November, 1934. On the other hand, we invited the attention of the petitioner to a document which he produced as the true copy of the matriculation certificate issued by the Registrar of the University of Jammu and Kashmir on 1.9.1951. That certificate has shown without the slightest ambiguity that the date of birth of first respondent is 1.11.1936. We pointed out to the petitioner that he has affirmed in his own affidavit sworn to by him that the said document is the true copy of its original. To the query the petitioner had nothing to answer. We were anguished at the temerity by which he has chosen to approach this Court for seeking a declaration that a high Constitutional functionary like the CJI was born on 1st November, 1934, about which he has no knowledge, nor even a scrap of paper. Then why did he file this writ petition?

When the same R. Karuppan, Advocate, argued in this Court in defence of a contemnor S.K. Sundaram (against whom contempt proceedings were initiated pursuant to his sending a telegram asking the Chief Justice of India to step down from office on the ground that he had already attained the age of 65, and then his filing a criminal complaint against the CJI) this Court by its Judgment dated 15.12.2000 pronounced in unmistakable terms thus:

Once the age of Dr. Justice A.S. Anand was so determined by the President of India in exercise of his constitutional authority, in whom alone is the power reposed to determine the question of the age of a judge of the High Court, it was not open to this contemnor to raise this question over again and again. When this contemnor once again raised the question of the age of Dr. Justice A.S. Anand, in the year 1999, the Government of India issued a press communication which, after referring to the earlier proceedings adopted by the President of India, has stated thus: This plea was again rejected on the ground that there was no basis for reopening the matter. The decision of the President is final under Article 217 of the Constitution.

Now Mr. Karuppan made averments in the present writ petition that the petitioner submits that the dispute which has arisen as early as in 1991, undetermined by the President and the operation of Article 217 is still operative and within the jurisdiction of the President. He further averred that the petitioner submits that the conduct of the President of India, ever since the controversy arose till date only proves that the dispute has never been determined by him or his predecessor. He further averred that the press note released by the Government of India to the Press Information Bureau on 23rd October, 2000, reached the notice of the petitioner only after 23.11.2000. In the context of this statement he concealed the fact that copy of the said press note was included in the files of the contempt proceedings initiated against S.K. Sundaram as early as 7.11.2000. Mr. Karuppan admitted before us that he himself appeared in this Court as Advocate for S.K. Sundaram on 20.11.2000.

The above averments are ex facie false and they are stated in the writ petition by R. Karuppan knowing them to be false.

We dismiss this writ petition in limine.

In our view the deponent Mr. R. Karuppan had made the above false statement in the writ petition intentionally for the purpose of being used in the judicial proceeding. We, therefore, require him to show cause why prosecution proceedings shall not be initiated against him for offence under Section 193 of the Indian Penal Code. If his explanation does not reach this Court before 28.2.2001, we would treat that he has no explanation to offer in the matter. Further action on this will be decided after 28.2.2001.

( K.T. Thomas )

( R.P. Sethi )

( B.N. Agrawal )

New Delhi;

February 14, 2001.

All that he could point out was a letter purported to have been written by one S. Behr to a solicitors firm Sohal & Co. in which a mention is made that Adarsh Sein Anand was enrolled as a student member of Inner Temple on 4.1.1962 and at that time he gave his year of birth as 1934. At the same time the petitioner produced a letter written by the Chairman of the Bar of England and Wales dated 2.11.2000 in which the said Chairman has written in unambiguous language that Inner Temple records show that the date of birth of Adarsh Sein Anand is 1st November, 1936, which was the date given by A.S. Anand in a form in his own hand writing bearing his signature.

Supreme Court- Parties coming with unclean hands to face appropriate Legal Action

October 13, 2012 Leave a comment

Since the appellant has not approached the quasi judicial and judicial forums i.e., the Additional Commissioner, the High Court and this Court with clean hands and succeeded in securing interim orders, it is ordained to pay costs, which is quantified at Rs.2 lacs.

 

 

Supreme Court of India

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7982 OF 2002

Oswal Fats and Oils Limited ……..Appellant

Versus

Additional Commissioner (Administration),

Bareilly Division, Bareilly and others …….Respondents

JUDGMENT

G.S. Singhvi, J.

1. Feeling aggrieved by refusal of the learned Single Judge of Allahabad

High Court to quash orders dated 24.5.1993 and 30.5.2001 passed by

Collector, Pilibhit (for short, `the Collector’) and Additional Commissioner

(Administration), Bareilly (for short, `the Additional Commissioner’)

respectively under the U.P. Zamindari Abolition and Land Reforms Act,

1950 (for short, `the Act’), declaring that 27.95 acres land purchased by the

appellant in Shahi and Khamaria Pul villages of District Pilibhit shall vest in

the State Government, the appellant has filed this appeal. 2

2. The appellant is a company incorporated under Section 149(3) of the

Companies Act, 1956. In 1991, the appellant decided to set up agro based

paper projects in the State of U.P. By resolution dated 14.10.1991, the

Board of Directors of the appellant authorised Shri Kamal Oswal (Director),

Shri T.R. Sharma (General Manager) and Shri Jai Prakash Kaushal

(Authorised Signatory) to negotiate and finalise purchase of land in the State

of Uttar Pradesh and/or other States and Union Territories, to sign sale deeds

etc. for effective acquisition/transfer of land. Paragraphs (e) and (f) of that

resolution read as under:

"To sign for and on behalf of the company all sales deeds conveyance deeds, Intkals, Mutations and other documents necessary for the effective acquisition/transfer of the land in the name of the company and for this purpose to appear for and on behalf of the company before any court of law, Tehsildar, Naib Tehsildar, Patwari, Registrar, Sub Registrar of any other land transferring authority.

And to do all other acts, things and deeds for and on behalf of the company which any of the above noted persons in the discharge of their lawful duties consider proper and in the best interest of the company."

3. Soon thereafter, an application dated 24.10.1991 was submitted on

behalf of the appellant to Joint Director of Industries, Bareilly Zone, Bareilly

for grant of permission under Section 154(2) of the Act for purchase of land 3

in excess of 12.5 acres. The relevant portions of that application are

extracted below:

"Our Company is proposing to set up a 100 TPD (Gross) Agro based paper project in area adjoining villages of Shahi Kamariapul, Adhkata Nazrana. For this project we require about 200 Acres of land out of which about 50 Acres shall be in Pilibhit District and about 150 Acres in Nawabganj Tehsil of Bareilly District.

The proposed paper project shall utilise Agricultural wastes such as wheat Straw, Rice Straw and Bagasse etc. as the main raw materials. The project shall generate direct employment opportunities for about 750 persons and for many more indirectly. The project shall be of special benefit to the people living in the areas near the site.

We through this letter are applying to your office for the permission under section 154 of ZALR Act for purchase of land in excess of 12.5 Acres for industrial purpose. We are enclosing two additional copies of this letter. We are also enclosing the site plan, recommendations of Technical Consultants for your ready reference.

We shall be pleased to furnish any other information required by you in this connection. We wish to bring to your kind notice that we plan to start the purchase of land for this project from next month i.e. Nov. 1991."

4. However without waiting for response of the concerned authority, the

appellant purchased 40.45 acres land in Shahi and Khamaria Pul villages,

Pargana Jahanabad, Tehsil and District Pilibhit through different sale deeds

executed between January and April, 1992.

4

5. The State of Uttar Pradesh challenged transfer of various parcels of

land in favour of the appellant by filing identical suits under Sections 154,

167, 168A and 194 of the Act. The transferors, who were impleaded as

parties in all the suits did not contest the same. However, the appellant filed

identical written statements in all the cases. In first paragraph of the written

statement filed in Suit No.133 of 1993, the appellant admitted all the

paragraphs of the suit. In the additional statement, the appellant virtually

conceded that the land was purchased in contravention of the Act and stated

that it may be allowed to retain 12.5 acres out of the disputed land. This is

evinced from English translation of paragraphs 2 to 4 of the written

statement which are reproduced below:

"2. That all the lands of both the village had been purchased for establishment of Industry after making the payment to the farmers. But I had the knowledge of law in Punjab and was not well conversant with the provisions of U.P. Zamindari Abolition Act therefore, I purchased the land in question which is more than 12 acres. We had given an application dated 24.10.1991 to the State Government for the permission of establishment of Industry and only thereafter we started purchasing the land without waiting for the permission from the Government because we had the belief that permission will be granted to us for establishment of Industry.

3. That we filed application for mutation of whole of the land under the sale and all of them had been accepted and we continued the purchasing of land because we had the belief that we are not violating any provision of Zamindari Abolition Act. 5

4. That the details of land which we want to keep for the establishment of factory, measuring twelve and a half acres out of the disputed land, are being given in the succeeding paras and we have no objection for any legal action with regard to the remaining land."

The particulars of the land suit sought to be retained by the appellant

were given in the affidavit of Shri T.R. Sharma. A sketch map showing

those khasra numbers were also filed with the written statement.

6. By an order dated 24.5.1993, the Collector declared that the purchase

made by the appellant in excess of 12.50 acres is against the provisions of

Sections 154/167 of the Act and that it will be entitled to retain only 12.50

acres and the remaining land measuring 27.95 acres would vest in the State

Government. The relevant portion of the order passed by the Collector is

extracted below:

"I have heard the arguments of Government Counsel (Revenue) for State and the learned counsel for M/s. Oswal Fats and Oil Limited and perused the records. After hearing the arguments of both the parties and the perusal of records, I have reached on the conclusion that the defendants M/s. Oswal Fats and Oil Limited, New Delhi have purchased the total land measuring 40.45 Acres in Village Shahi and Khamaria Pul, Pargana Jahanabad, Tehsil and District Pilibhit, as detailed above. However as per the provisions of Section 154/167 of Jamindari Abolition and Land Management Act, they can possess only 12.50 Acres land. Therefore, the transfer of remaining land measuring 27.95 Acres, which is in excess than 12.50 Acres, is against the provisions of Section 154/167 of Z.A. Act. The 6

defendant Company Oswal Fats and Oil Limited has also given the option for 12.50 Acres land, in their affidavit. Therefore, the remaining land except the 12.50 Acres land mentioned in the Affidavit dated 19.05.93 is liable to be merged into the State."

7. The appellant questioned the order of the Collector by filing revision

under Section 333 of the Act. In the memo of revision, it was claimed that

excess land was purchased under the belief that the State Government would

grant permission under Section 154(2). It was then urged that although the

Board of Directors had given power to Shri T.R. Sharma to appear before

any court of law on behalf of the appellant, he was not authorized to enter

into a compromise or give consent for retaining the particular land. Another

plea taken by the appellant was that the company consists of 8 directors and

if each Director is entitled to have a share of 12.5 acres, the purchase made

by the appellant will not exceed the prescribed limit. However, at the

hearing of the revision petition, the plea that Shri T.R. Sharma had filed

written statement and affidavit beyond the scope of his authority appears to

have been given up and it was submitted that the general manager had been

authorised to pursue the case but he did not do it properly. The Additional

Commissioner dismissed the revision of the appellant and confirmed the

order of the Collector by recording following reasons: 7

"It is clear from the perusal of records that the defendants themselves have admitted in their objections filed before the court below that the land in question had been purchased for establishment of Industry and purchased the land more than 12.50 acres intentionally. They have also given the details of land which they want to keep with them and agree for merging of remaining land into the State. Revisionist has stated that they had given an application for obtaining the permission and it has also been admitted that they had purchased the land in excess than 12.50 acres without waiting for the permission. In these circumstances, the court below has correctly passed an order for merging of 27.95 Acre land into the State, which is in excess than the 12.50 acres land and this order does not require any intervention. Therefore, the Revision, being devoid of merits, is liable to be dismissed."

8. The appellant challenged the orders of the Collector and the

Additional Commissioner in Writ Petition No.25819/2001 by taking up the

position that Shri T.R. Sharma was not authorised to enter into a

compromise or to make a statement relinquishing the land in favour of the

State Government. It was also pleaded that the appellant was entitled to

purchase land in excess of 12.50 acres because its case is covered by the

explanation appearing below Section 154(1) of the Act.

9. The learned Single Judge rejected the argument on the issue of lack of

authority of Shri T.R. Sharma to indirectly admit violation of Section 154(1)

of the Act and to agree to surrender excess land by making the following

observations:

8

"It is apparent on face of record that petitioner Company has no authorization either general or special to hold land in excess of 12.50 acres by State Government. Indisputably the petitioner Company is not a Co-operative Society registered under the Co- operative Societies Act nor petitioner Company is established for charitable purposes. Nothing is brought to my notice that the present Company is established in the interest of general public. Contrary to it, there are overwhelming materials on record and also from attending circumstances it is inferable that the petitioner Company is an establishment established with profit orientation for its shareholders. It is pertinent to mention here that the petitioner Company has not produced its certificate of registration under the Companies Act. During the course of argument articles of association of Nuskar Enterprises Ltd. is produced by the learned counsel for the petitioner. It is not understandable as to why the certificate of registration under the Companies Act is not produced before the Court. It is also not understandable as to how the Articles of Association of Nuskar Enterprises Ltd. has nexus with the petitioner Company. I am of the view that even if the affidavit dated 19.5.1993 (Annexure-7 to the writ petition) of the General Manager of the petitioner Company giving consent to relinquish the land in excess of 12.50 acres in favour of State Government is ignored even then the findings of respondents No.1 and 2 are sustainable for the reasons given hereinabove."

The learned Single Judge then referred to the provisions of Sections

152, 154, 166 and 167 of the Act and held that the purchase made by the

appellant in excess of 12.50 acres was illegal per se and its case does not fall

within the ambit of the exceptions carved out in sub-section (2) of Section

154. The learned Single Judge rejected the appellant’s plea that surrender

made by Shri T.R. Sharma was unauthorized and held that the Collector did 9

not commit any illegality by declaring that excess land will vest in the State

Government. Simultaneously, he gave a direction to the Chief Secretary to

ensure that possession of the excess land is taken by the Government free

from all encumbrances without any delay.

10. At this stage, we may mention that during the pendency of the suits

filed by the State Government before the Collector, the appellant instituted

Suit No.25/1992-93 under Section 143 of the Act, which was disposed of by

Pargana Adhikari, Pilibhit vide her order dated 12.7.1993 by declaring that

7.97 acres land purchased by the appellant in Tehsil and District Pilibhit was

non-agricultural land.

11. Shri Manoj Swarup, learned counsel for the appellant argued that the

order passed by the Collector was vitiated due to violation of the basics of

natural justice inasmuch as the concerned officer did not give reasonable

opportunity to the appellant to defend its case on the issue of alleged

violation of Section 154 of the Act and the Additional Commissioner and the

learned Single Judge gravely erred in confirming/upholding the order of the

Collector. The learned counsel further argued that Shri T.R. Sharma, who

was holding the post of General Manager was not authorised to make any 10

concession on behalf of the appellant or give consent for surrendering 27.95

acres land on the ground that the purchase of land was made in violation of

mandate of Section 154 and the Collector was not at all justified in acting

upon the concession made by Shri T.R. Sharma. Learned counsel then

referred to Section 154 of the Act and submitted that the embargo contained

in that section is not applicable to the appellant’s case because purchase

made by a company does not fall within the ambit of that section. The

learned counsel reiterated the plea that if each director of the company is

held entitled to purchase 12.50 acres of land, the purchase of 40.45 acres

land by the appellant cannot be treated as violation of Section 154(1). He

lastly argued that even if transfer of land in favour of the appellant is held to

be contrary to the mandate of Section 154(1), the Court may direct the State

Government to accord post facto sanction in terms of sub-section (3) of

Section 154 which was inserted by an amendment dated 24.3.2005.

Learned counsel also criticized the direction given by the High Court to the

Chief Secretary to take possession of the excess land and submitted that

while deciding the writ petition filed by the appellant against the orders of

the Collector and the Additional Commissioner, the learned Single Judge

was not justified in treating the case as a public interest litigation. 11

12. Shri T.N. Singh, learned counsel appearing for the respondents

supported the impugned order and argued that the Collector did not commit

any error by declaring that the excess land will vest in the State Government

because the purchase was made by the appellant without obtaining

permission in terms of Section 154 of the Act. Learned counsel relied upon

the averments contained in the written statement filed on behalf of the

appellant in Suit No. 133/1993 and argued that after having indirectly

admitted contravention of Section 154(1) of the Act, the appellant did not

have the locus to challenge the orders of the Collector and the Additional

Commissioner on the ground that Shri T.R. Sharma was not authorized to

give option for retaining the particular parcels of land and the learned Single

Judge rightly held that the transfers made in violation of Section 154 were

null and void.

13. Before dealing with the respective arguments/submissions, we

consider it appropriate to note that after one year and five months of passing

of order by the Collector, the appellant and the State Government entered

into a lease agreement dated 15.10.1994 whereby the latter agreed to give

excess land measuring 27.95 acres, the details of which were given in

Schedule `A’ appended to the agreement, to the appellant on lease for a 12

period of 30 years at an yearly rent of Rs.281.05. The lease agreement was

signed on behalf of the appellant by Shri Kamal Oswal, Director and Shri

J.P. Kaushal, General Manager (Liaison). In the lease agreement, a copy of

which has been annexed as Annexure CA-1 with the counter affidavit filed

on behalf of the respondents in this Court, the lessee i.e., the appellant

candidly admitted that transfers made in its favour by the Bhumidhars were

contrary to Section 154 of the Act and were void and, as such, land vested in

the State Government under Section 167. This is evinced from the

following paragraphs of the lease agreement:

"AND WHEREAS the transfers as aforesaid made by the Bhumidhars in favour of the Lessee in respect of the land described in Schedule `A’ hereto being in contravention of Section 154 of the Uttar Pradesh Jamindari Abolition and Land Reforms Act, 1950 (hereinafter called "the said Act") were void under Section 166 of the said Act and consequently the said land vested in the Government of Uttar Pradesh (hereinafter called "the State Government") under Section 167 of the said Act, free from all encumbrances with effect from the date of their transfer.

AND WHEREAS the lessor at the request of the Lessee has agree to demise and land vested in the State Government as aforementioned subject to the rights and restrictions and the several convenants hereinafter expressed for the purposes of the said project."

(emphasis supplied)

13

14. It is quite intriguing and surprising that the lease agreement was not

brought to the notice of the Additional Commissioner and the learned Single

Judge of the High Court and neither of them was apprised of the fact that the

appellant had taken 27.95 acres land on lease from the Government by

unequivocally conceding that it had purchased excess land in violation of

Section 154(1) of the Act and the same vested in the State Government. In

the list of dates and the memo of special leave petition filed in this Court

also there is no mention of lease agreement dated 15.10.1994. This shows

that the appellant has not approached the Court with clean hands. The

withholding of the lease agreement from the Additional Commissioner, the

High Court and this Court appears to be a part of the strategy adopted by the

appellant to keep the quasi-judicial and judicial forums including this Court

in dark about the nature of its possession over the excess land and make

them believe that it has been subjected to unfair treatment. If the factum of

execution of lease agreement and its contents were disclosed to the

Additional Commissioner, he would have definitely incorporated the same

in order dated 30.5.2001. In that event, the High Court or for that reason this

Court would have non suited the appellant at the threshold. However, by

concealing a material fact, the appellant succeeded in persuading the High

Court and this Court to entertain adventurous litigation instituted by it and 14

pass interim orders. If either of the courts had been apprised of the fact that

by virtue of lease deed dated 15.10.1994, the appellant has succeeded in

securing temporary legitimacy for its possession over excess land, then there

would have been no occasion for the High Court or this Court to entertain

the writ petition or the special leave petition.

15. It is settled law that a person who approaches the Court for grant of

relief, equitable or otherwise, is under a solemn obligation to candidly

disclose all the material/important facts which have bearing on the

adjudication of the issues raised in the case. In other words, he owes a duty

to the court to bring out all the facts and refrain from concealing/suppressing

any material fact within his knowledge or which he could have known by

exercising diligence expected of a person of ordinary prudence. If he is

found guilty of concealment of material facts or making an attempt to

pollute the pure stream of justice, the court not only has the right but a duty

to deny relief to such person. In one of the earliest decisions on the subject

i.e., – R. v. Kensington Income Tax Commissioner (1917) 1 KB 486,

Viscount Reading, Chief Justice of the Divisional Court observed:

"Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the applicant was not candid and did not fairly state the facts, the Court ought, for its own 15

protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived. Before coming to this conclusion a careful examination will be made of the facts as they are and as they have been stated in the applicant’s affidavit, and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the true facts. But if the result of this examination and hearing is to leave no doubt that this Court has been deceived, then it will refuse to hear anything further from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit."

16. The above extracted observations were approved by the Court of

Appeal in the following words:

"It is the duty of a party asking for an injunction to bring under the notice of the Court all facts material to the determination of his right to that injunction: and it is no excuse for him to say that he was not aware of the importance of any facts which he has omitted to bring forward. If an applicant does not act with uberrima fides and put every material fact before the Court it will not grant him an injunction, even though there might be facts upon which the injunction might be granted." His Lordship rightly pronounced: "The Court, for its own protection, is entitled to say: We refuse this writ… without going into the merits of the case on the ground of the conduct of the applicant in bringing the case before us." Warrington, L.J. was also of the same opinion. In a concurring judgment His Lordship observed: "It is perfectly well settled that a person who makes an ex parte application to the Court – that is to say, in absence of the person who will be affected by that which the Court is asked to do – is under an obligation to the Court to make the fullest possible disclosure of all material facts within his knowledge, and if he does not make that fullest possible disclosure, then he cannot obtain any advantage from the 16

proceedings, and he will be deprived of any advantage he may have already obtained by means of the order which has thus wrongly been obtained by him."

17. This Court and different High Courts have repeatedly invoked and

applied the rule that a person who does not disclose all material facts has no

right to be heard on the merits of his grievance – State of Haryana v.

Karnal Distillery Co. Ltd. (1977) 2 SCC 431, Vijay Kumar Kathuria v.

State of Haryana (1983) 3 SCC 333, Welcome Hotel and others v. State

of Andhra Pradesh and others etc. (1983) 4 SCC 575, G.

Narayanaswamy Reddy (dead) by LRs. and another v. Government of

Karnataka and another (1991) 3 SCC 261, S.P. Chengalvaraya Naidu

(dead) by L.Rs. v. Jagannath (dead) by LRs. and others (1994) 1 SCC 1,

Agricultural and Processed Food Products v. Oswal Agro Furane and

others (1996) 4 SCC 297, Union of India and others v. Muneesh Suneja

(2001) 3 SCC 92, Prestige Lights Ltd. v. State Bank of India (2007) 8

SCC 449, Sunil Poddar and others v. Union Bank of India (2008) 2 SCC

326, K.D. Sharma v. Steel Authority of India Ltd. and others (2008) 12

SCC 481, G. Jayshree and others v. Bhagwandas S. Patel and others

(2009) 3 SCC 141 and C.A. No. 5239/2002 – Dalip Singh v. State of U.P.

and others, decided on 3.12.2009.

17

18. In Hari Narain v. Badri Das AIR 1963 S.C. 1558, this Court revoked

the leave granted to the appellant by making following observations:

"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 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."

19. In Dalip Singh’s case, the appellant’s grievance was that before

finalizing the case under the U.P. Imposition of Ceiling on Land Holdings

Act, 1960, the prescribed authority did not give notice to the tenure holder

Shri Praveen Singh (predecessor of the appellant). On a scrutiny of the

records, this Court found that the prescribed authority had issued notice to

Shri Praveen Singh, which was duly served upon him and held that the

appellant is not entitled to relief because he did not approach the High Court

with clean hands inasmuch as he made a misleading statement in the writ 18

petition giving an impression that the tenure holder did not know of the

proceedings initiated by the prescribed authority. The preface and para 21 of

that judgment read as under:

"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 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.

21. From what we have mentioned above, it is clear that in this case efforts to mislead the authorities and the courts have transmitted through three generations and the conduct of the appellant and his son to mislead the High Court and this Court cannot, but be treated as reprehensible. They belong to the category of persons who not only attempt, but succeed in polluting the course of justice. Therefore, we do not find any justification to interfere with the order under challenge or entertain the appellant’s prayer for setting aside the orders passed by the Prescribed Authority and the Appellate Authority."

19

20. Notwithstanding our conclusion that the appellant is guilty of

contumacious conduct and is not entitled to any relief, we have thought it

proper to deal with the argument advanced by the learned counsel for the

appellant on the issues of violation of rules of natural justice and non

applicability of Section 154 of the Act.

21. The question whether the appellant was denied reasonable opportunity

to defend its cause needs consideration in the light of the written statements

filed on behalf of the appellant before the Collector, wherein it was admitted

that land had been purchased without waiting for the permission of the

Government under the belief that permission will be granted for establishing

the industry. Not only this, it was candidly stated that the appellant has no

objection if any legal action is taken with regard to land in excess of 12.50

acres. In the proceedings of the suits, no prayer was made on behalf of the

appellant for permission to lead evidence to prove that the purchase made by

it from Bhumidhars was not in violation of Section 154(1) of the Act.

Before the Additional Commissioner and the High Court, the appellant did

not make a grievance that the Collector had passed order without giving it a

reasonable or effective opportunity of hearing. In this view of the matter, 20

the appellant cannot now contend that the Collector did not act in

consonance with the rule of audi alteram partem.

22. Though, Shri Manoj Swarup made strenuous efforts to convince the

Court that Shri T.R. Sharma had no authority to make tacit admission of the

illegality committed in the purchase of land and that he had no right to make

an offer for surrender of excess land, we have not felt impressed. A reading

of resolution dated 14.10.1991 makes it clear that Shri T.R. Sharma, the then

General Manager of the appellant was authorised to take all actions

necessary for transfer of land. That apart, in view of lease agreement dated

15.10.1994, which was not produced by the appellant before the Additional

Commissioner, the learned Single Judge of the High Court and even this

Court (for the first time, the lease agreement came to the fore when a copy

thereof was annexed with the counter affidavit filed on behalf of the

respondent), challenge to the competence of Sri T.R. Sharma to make an

admission that the land was purchased by the appellant without waiting for

the State Government’s permission and that appropriate legal action can be

taken with regard to excess land pales into the realm of insignificance. The

learned counsel was at loss to explain as to how in the face of the lease

agreement, which was signed by none else than Shri Kamal Oswal (Director 21

of the appellant), whose name finds mention in Resolution dated 14.10.1991

and General Manager (Liaison) and which contains unequivocal admission

that the land was purchased in violation of Section 154(1) and, as such, the

transaction was void and that by virtue of Section 167, excess land vested in

the State Government, it can be said that Shri T.R. Sharma acted beyond his

authority in filing the written statement. This being the position, it is not

possible to find any fault with the order of the Collector who relied upon the

written statement filed on behalf of the appellant and declared that land in

excess of 12.50 acres will vest in the State Government.

23. We shall now consider whether the restriction contained in Section

154(1) is not attracted in a case involving transfer of land by Bhumidhar in

favour of a company. In this context, it is important to bear in mind that the

Act was enacted by the State Legislature to achieve the goal of social and

economic justice enshrined in the preamble of the Constitution. It provides

for abolition of zamindari system, which involves intermediaries between

tiller of the soil and the State and for acquisition of their rights, title and

interest and to reform the law relating to land tenure. Sections 154, 166 and

167 of the Act, which contain restriction on transfer of land by Bhumidhar 22

and also specify the consequences of transfer made in violation of that

restriction, read as under:-

"154. Restriction on transfer by a bhumidhar.- (1) Save as provided in sub-section (2), no bhumidhar shall have the right to transfer by sale or gift, any land other than tea gardens to any person where the transferee shall, as a result of such sale or gift, become entitled to land which together with land if any, held by his family will, in the aggregate, exceed 5.0586 hectares (12.50 acres) in Uttar Pradesh.

Explanation.- For the removal of doubt it is hereby declared that in this sub-section the expression `person’ shall include and be deemed to have included on June 15, 1976 a `Co-operative Society':

Provided that where the transferee is a co-operative society, the land held by it having been pooled by its members under clause (a) of sub-section (1) of section 77 of the Uttar Pradesh Co- operative Societies Act, 1965 shall not be taken into account in computing the 5.0586 hectares (12.50 acres) land held by it.

(2) Subject to the provisions of any other law relating to the land tenures for the time being in force, the State Government may, by general or special order, authorise transfer in excess of the limit prescribed in sub-section (1) if it is of the opinion that such transfer is in favour of a registered cooperative society or an institution established for a charitable purpose, which does not have land sufficient for its need or that the transfer is in the interest of general public.

Explanation.- For the purposes of this section, the expression `family’ shall mean the transferee, his or her wife or husband (as the case may be) and minor children, and where the transferee is a minor also his or her parents.

23

(3) For every transfer of land in excess of the limit prescribed under sub-section (1) prior approval of the State Government shall be necessary:

Provided that where the prior approval of the State Government is not obtained under this sub-section, the State Government may on an application give its approval afterward in such manner and on payment in such manner of an amount, as fine, equal to twenty-five per cent of the cost of the land as may be prescribed. The cost of the land shall be such as determined by the Collector for stamp duty.

Provided further that where the State Government is satisfied that any transfer has been made in public interest, it may exempt any such transferee from the payment of fine under this sub-section.

166. Transfer made in contravention of the Act to be void.- Every transfer made in contravention of the provisions of this Act shall be void.

167. Consequences of void transfers.- (1) The following consequences shall ensue in respect of every transfer which is void by virtue of section 166, namely-

(a) the subject-matter of transfer shall with effect from the date of transfer, be deemed to have vested in the State Government free from all encumbrances;

(b) the trees, crops and wells existing on the land on the date of transfer shall, with effect from the said date, be deemed to have vested in the State Government free from all encumbrances;

(c) the transferee may remove other movable property or the materials of any immovable property existing on such land on the date of transfer within such time as may be prescribed.

(2) Where any land or other property has vested in the State Government under sub-section (1), it shall be lawful for the 24

Collector to take over possession over such land or other property and to direct that any person occupying such land or property be evicted therefrom. For the purposes of taking over such possession or evicting such unauthorised occupants, the Collector may use or cause to be used such force as may be necessary."

24. While enacting law for abolition of zamindari system, the legislature

was aware of the ground reality that despite the welfare measures which may

be taken by the State to protect the interest of poor farmers, economically

affluent class of people may persuade or pressurize them to part with their

sole source of sustenance i.e., the land. This is the reason why a ceiling has

been imposed on transfer of land by Bhumidhar. Section 154(1), in no

uncertain terms, declares that no Bhumidhar shall be entitled to transfer any

land other than tea gardens by sale or gift to any person if holding of the

transferee would exceed 12.50 acres (Earlier the prescribed limit was 30

acres but by an amendment it was reduced to 12.50 acres). An explanation

was subsequently added to clarify that the word `person’ shall include and

be deemed to have included a cooperative society on June 15, 1976. Proviso

to Section 154(1) lays down that where the transferee is a cooperative

society, the land held by it having been pooled by its members under Section

77(1)(a) of the Uttar Pradesh Cooperative Societies Act, 1965 shall not be

taken into account for the purpose of computing 12.50 acres. Under sub- 25

section (2), the State Government is empowered to authorize transfer of land

in excess of the limit prescribed in sub-section (1) if it is of the opinion that

such transfer is in favour of a registered cooperative society or an institution

established for a charitable purpose, which does not have sufficient land for

its need or the transfer is in the interest of general public. The substantive

part of sub-section (3), which was added by an amendment made in 2005,

lays down that every transfer of land in excess of the limit prescribed under

sub-section (1) shall require prior approval of the State Government. By

virtue of proviso to this sub-section, the State Government has been clothed

with power to give post facto approval on payment of the specified amount

as fine. Section 166 declares that every transfer made in contravention of

the provision of the Act shall be void. This obviously includes Section

154(1). Section 167 enumerates the consequences of void transfers. Clause

(a) of Section 167(1) lays down that a transfer which is void by virtue of

Section 166, the subject matter of transfer shall be deemed to have vested in

the State Government from the date of transfer. In terms of Section 167(2),

the Collector is entitled to take over possession of any land or other property

which has vested in the State Government under sub-section (1) and also

direct eviction of any person occupying such land or property. 26

25. The argument of Shri Manoj Swarup that a company is not a `person’

within the meaning of Section 154(1) of the Act and, therefore, the

restriction contained therein is not applicable to transfer of land in favour of

a company sans merit. Since, the word `person’ has not been defined in the

Act, reference can usefully be made to the definition of that word in the

Uttar Pradesh General Clauses Act, 1904. Sections 3 and 4(33) of that Act

read as under:

"3. Application of the Act to other enactments. – (1) The provisions of this Act shall apply to this Act and to all Uttar Pradesh Acts, whether made before or after the commencement of this Act.

(2) The provisions of this Act in their application to any enactment or statutory instrument shall be subject to any contrary requirements of the context of the enactment or instrument that is to be interpreted.

4. Definitions. – In all Uttar Pradesh Acts, unless there is anything repugnant in the subject or context, -

xxxx xxxx xxxx

(33) "Person" shall include any company or association or body of individuals, whether incorporated or not;

xxxx xxxx xxxx"

A reading of Section 3(1) reproduced above makes it clear that the

provisions contained in the U.P. General Clauses Act are applicable to all

Uttar Pradesh Acts including the Act with which we are concerned. To put 27

it differently, by virtue of Section 3(1) of the General Clauses Act, the

definition of the word `person’ contained in Section 4(33) will be deemed to

have been engrafted in the Act and the same cannot be given a restricted

meaning as suggested by the learned counsel. Rather, in view of the

definition contained in Section 4(33) of the U.P. General Clauses Act, the

word `person’ appearing in Section 154(1) would include any company or

association or body of individuals, whether incorporated or not. This view

of ours is strengthened by the language of explanation added to Section

154(1) whereby it was declared that the expression `person’ shall include a

cooperative society. The word `include’ is generally used in interpretation

clauses in order to enlarge the meaning of the words or phrases occurring in

the body of the statue and when it is so used those words or phrases must be

construed as comprehending, not only such things, as they signify according

to their natural import, but also those things which the interpretation clause

declares that they shall include. The word `include’ is susceptible of another

construction, which may become imperative, if the context of the Act is

sufficient to show that it was not merely employed for the purpose of adding

to the natural significance of the words or expressions used. It may be

equivalent to `mean and include’ and in that case it may afford an exhaustive

explanation of the meaning which for the purposes of the Act must 28

invariably be attached to those words or expressions. – Dilworth v.

Commissioner of Stamps (1899) AC 99. In State of Bombay and others

v. Hospital Mazdoor Sabha and others AIR 1960 SC 610,

Gajendragadkar, J., observed:

"It is obvious that the words used in an inclusive definition denote extension and cannot be treated as restricted in any sense. Where we are dealing with an inclusive definition, it would be inappropriate to put a restrictive interpretation upon terms of wider denotation.

In CIT, A.P. v. Taj Mahal Hotel, Secunderabad (1971) 3 SCC 550, this

Court interpreted the word `plant’ used in Section 10(2)(vi-b) of the Income

Tax Act, 1922. Speaking for the Court, Grover, J., observed:

"The very fact that even books have been included shows that the meaning intended to be given to `plant’ is wide. The word `includes’ is often used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the statute. When it is so used these words and phrases must be construed as comprehending not only such things as they signify according to their nature and import but also those things which the interpretation clause declares that they shall include."

26. Moreover, if the word `person’ used in Section 154(1) is interpreted

keeping in view the object of legislation and by applying the rule of

contextual interpretation, the applicability of which has been recognised in

Poppatlal Shah v. State of Madras AIR 1953 SC 274 (para 7), S.K. Gupta 29

and another v. K.P. Jain and another (1979) 3 SCC 54 (para 25), Reserve

Bank of India v. Peerless General Finance and Investment Co. Ltd. and

others (1987) 1 SCC 424 (para 33) and Central Bank of India v. State of

Kerala and others (2009) 4 SCC 94 (para 98), it becomes clear that the

same would include human being and a body of individuals which may have

juridical or non juridical status.

27. At the cost of repetition, we consider it appropriate to observe that the

primary object of Section 154(1) is to put a restriction/ceiling on the transfer

of land by a Bhumidhar to any other person by sale or gift. Though, sub-

sections (2) and (3) of Section 154 empowers the Government to dilute the

rigor of the restriction contained in Section 154(1), if that section is read in

conjunction with Sections 166 and 167 which provide for consequences of

transfer made in contravention of the Act including Section 154(1), the word

`person’ appearing in Section 154(1) cannot be construed in a manner which

would defeat the object and purpose of legislation. If a narrow meaning is

given to the word `person’ appearing in Section 154(1), the purpose of

legislation viz., abolition of zamindari and making tillers owner of the land,

which is in consonance with the mandate of the object of social justice set

out in the preamble and the provisions contained in Articles 38 and 39 of the 30

Constitution, would be substantively defeated because in that event

companies, corporations, etc. will be able to grab the land of the tillers by

offering them comparatively remunerative prices and again make them

landless poor.

28. At this stage, we may notice two precedents which have direct bearing

on the interpretation of word `person’. In Hasmukhlal Dahayabhai and

others v. State of Gujarat and others (1976) 4 SCC 100, this Court was

called upon to interpret Section 6 of the Gujarat Ceiling Act, 1961. It was

argued on behalf of the appellant that the concept of person embodied in

Section 6(2) was contrary to the concept of that word in second proviso to

Article 331A(1) of the Constitution. While repelling the challenge, this

Court observed:

"It is evident that Section 6 conceives of each "person" holding land as a single unit whose holding must not exceed the ceiling limit. Section 2 sub-section (21) says: " `person’ includes a joint family",. Thus, the term "person" is not, strictly speaking, defined in the Act. Section 2 sub-section (21) only clarifies that the term "person" will "include" a joint family also. It certainly does not exclude an individual from being a person in the eyes of law.

This has been done apparently to make it clear that, in addition to individuals, as natural persons, families, as conceived of by other provisions, can also be and are persons. This elucidation of the term "person" is in keeping with Section 3(42) of the General Clauses Act, 1897, which lays down: " 31

`person’ shall include any company or association or body of individuals, whether incorporated or not".

We have referred to the Central General Clauses Act 10 of 1897 and not to the State General Clauses Act, which also contains a similar clarification, because Article 367 of our Constitution provides that the definitions contained in the Central Act "apply for the interpretation of the Constitution". The argument which has been advanced before us is that the concept of the term "person", having been fixed by the Central General Clauses Act, this concept and no other must be used for interpreting the second proviso to Article 31-A(1) of the Constitution which lays down:

"Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof."

It is true that, but for the provisions of Section 6, sub- section (2) of the Act, the term "person", which includes individuals, as natural persons, as well as groups or bodies of individuals, as artificial persons, such as a family is, the entitlement to the ceiling area would be possessed by every person, whether artificial or natural. In other words, if Section 6(2) of the Act was not there, each individual member of a family would have been entitled to hold land upto the ceiling limit if it was his or her legally separate property. This follows from the obvious meaning of the term "person" as well as the inclusive definitions given both in the Act under consideration and in the General Clauses Act.

32

Spouses and minor children, as natural persons, have not been debarred from holding their separate rights to land by the provisions of the Act. It is not the object of the Act to do that. The object of the Act, as set out above, is twofold: firstly, to limit the ceiling area of each holder; and, secondly, to acquire what falls beyond the ceiling limit so that the State may distribute it to more needy persons. It is not disputed that compensation is provided for acquisition of what exceeds the ceiling area in every case. As was held by this Court in H.H. Kesavananda Bharati Sripadagalavaru v. State of Kerala the amount of compensation fixed cannot be questioned. Therefore, no provision of the Act could be or is challenged on the ground that the required compensation is not prescribed for an acquisition under it as required by Article 31(2) of the Constitution or is inadequate."

29. The issue was recently considered in Ramanlal Bhailal Patel v. State

of Gujarat (2008) 5 SCC 449. That case involved interpretation of the

provisions contained in the Gujarat Agricultural Land Ceiling Act, 1960.

The High Court held that the word `person’ appearing in Section 6 of the

Act includes an association of persons and as such 10 co-owners were

entitled to only one unit i.e. 36 acres. It was argued on behalf of the

appellant that the definition of "person" in the General Clauses Act cannot

be read into the definition of "person" in the Ceiling Act and in any case co-

owners cannot be considered as a body of individuals or association of

persons and each co-owner should be considered as a person for the

purposes of the Ceiling Act. The Court referred to the provisions of Gujarat 33

General Clauses Act, which is pari materia to the General Clauses Act, 1897

and held:

"The extent of land that could be held by the appellants depends upon the interpretation of the word "person" in Section 6(1) of the Ceiling Act which provides that "no person shall … be entitled to hold … land in excess of the ceiling area". If the ten co-owners are considered as an "association of persons" or "body of individuals", and consequently as a "person", then the ten co-owners together as a person, will be entitled to only one unit of land which is the ceiling area per person. But if "association of persons" or "body of individuals" is not a "person", or if a co-ownership is not an association of person/body of individuals, then each co-owner or the family of each co-owner, as the case may be will be a separate "person" having regard to the definition of person in Section 2(21) of the Ceiling Act, in which event, each family will be entitled to hold one unit of land.

The word "person" is defined in the Act, but it is an inclusive definition, that is, "a person includes a joint family". Where the definition is an inclusive definition, the use of the word "includes" indicates an intention to enlarge the meaning of the word used in the statute. Consequently, the word must be construed as comprehending not only such things which they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. Thus, where a definition uses the word "includes", as contrasted from "means", the word defined not only bears its ordinary, popular and natural meaning, but in addition also bears the extended statutory meaning (see S.K. Gupta v. K.P. Jain following Dilworth v. Commr. of Stamps and Jobbins v. Middlesex Country Council).

The ordinary, popular and natural meaning of the word "person" is "a specific individual human being". But in law the 34

word "person" has a slightly different connotation and refers to any entity that is recognised by law as having the rights and duties of a human being. Salmond defines "person" as "any being whom the law regards as capable of rights and duties" or as "a being, whether human or not, of which rights and duties are the attributes" (Jurisprudence, 12th Edn., p. 299). Thus the word "person", in law, unless otherwise intended, refers not only to a natural person (male or female human being), but also any legal person (that is an entity that is recognised by law as having or capable of having rights and duties). The General Clauses Act thus defines a "person" as including a corporation or an association of persons or a body of individuals whether incorporated or not. The said general legal definition is, however, either modified or restricted or expanded in different statutes with reference to the object of the enactment or the context in which it is used. For instance, the definition of the word "person" in the Income Tax Act, is very wide and includes an individual, a Hindu Undivided Family, a company, a firm, an association of persons or body of individuals whether incorporated or not, a local authority and every other artificial juridical person. At the other extreme is the Citizenship Act, Section 2(f) of which reads thus: ` "Person" does not include any company or association or body of individuals whether incorporated or not.’ Similarly, the definition under Section 2(g) of the Representation of People Act, 1950, is "person" does not include a body of persons.

Both definitions of the word "person", in the General Clauses Act and the Ceiling Act, are inclusive definitions. The inclusive definition of "person" in the General Clauses Act applies to all Gujarat Acts unless there is anything repugnant in the subject or the context. The inclusive definition of "person" in Section 2(21) of the Ceiling Act, does not indicate anything repugnant to the definition of "person" in the General Clauses Act, but merely adds "joint family" to the existing definition. Therefore the definition of person in the Ceiling Act, would include the definition of person in Section 3(35) of the General Clauses Act. The resultant position can be stated thus: the definition of person in the General Clauses Act, being an inclusive 35

definition, would include the ordinary, popular and general meaning and those specifically included in the definition. The inclusive definition of "person" in the Ceiling Act, in the absence of any exclusion, would have the same meaning assigned to the word in the General Clauses Act, and in addition, a "joint family" as defined. Thus, the word "person" in the Ceiling Act will, unless the context otherwise requires, refer to:

(i) a natural human being;

(ii) any legal entity which is capable of possessing rights and duties, including any company or association of persons or body of individuals (whether incorporated or not); and

(iii) a Hindu Undivided Family or any other group or unit of persons, the members of which by custom or usage, are joint in estate and residence."

30. In view of the above, the argument of the learned counsel that the

word `person’ in Section 154(1) means a human being or a natural person

only and that the explanation by which a cooperative society was included in

the said word is indicative of the legislature’s intention to give a narrow

meaning to the word `person’ is liable to be rejected. In our view, the

explanation instead of narrowing the meaning of the word `person’ makes it

clear that the same would include a non natural person.

31. The submission that if share of the individual Director is taken into

consideration, the total land of the appellant would not exceed 12.50 acres is

being mentioned only to be rejected in view of the contents of lease 36

agreement. That apart, no evidence was produced before the Collector or

the Additional Commissioner to prove that the land was purchased in the

name of the Directors of the appellant. Even before the learned Single Judge

of the High Court and this Court, no such evidence has been produced. In

Ramanlal Bhailal Patel’s case, this issue was considered and answered in

negative in the following words:

"Instead of buying the land (172 acres 36 guntas) jointly under the four sale deeds it was open to the ten persons to have bought the lands individually, that is each of them purchasing such extent of land as he or she wanted. If they had registered the sale deeds individually (subject to each of them being entitled to buy agricultural land, under the land reforms laws in force) each couple would have been entitled to hold land to the extent of one unit. Instead of each individual or couple purchasing the land in their respective names, if for convenience in negotiations, ten individuals buy the land jointly, the position will be no different. It cannot be said that merely because the sale deed is in the joint names of ten persons, they purchased the land as "an association of persons" or as "body of individuals" with the common intention of carrying on agricultural activities jointly or producing income, profit or gain or carry on some common joint venture. In fact before purchasing the lands, the ten persons had entered into an agreement placing on record that the object of purchasing the lands jointly was only to facilitate negotiations and avoid duplicating the purchase procedures and not to cultivate them jointly. There is no evidence of any joint cultivation, nor any evidence of any intention to have a joint venture. On the other hand, after purchase, they divided the lands and informed the Land Revenue Authorities and each co-owner was registered as the owner of the respective land allotted to him/her. This is not a case where a body of individuals purchased the land with the intention of having a continued community of interest by way 37

of a joint venture or as a business venture. It is therefore not possible to treat the ten purchasers as an "association of persons/body of individuals" nor is it permissible to treat them as a single "person", thereby restricting their entitlement to hold land to only one unit, even though there are ten purchasers. The Tribunal and the High Court were right in holding that the word "person" in the Ceiling Act includes an "association of persons/body of individuals". But they were not justified in treating the co-owners as an "association of persons", or in holding that the ten co-owners will be entitled to own only one unit. Having regard to Section 6(2) of the Act, the share of each couple (husband and wife) in the land, plus any other land individually held by them will have to be calculated to find out whether they held any land in excess of the ceiling limit. Therefore, the share of each appellant in the lands jointly purchased, with the addition of the lands held by his spouse, and addition of any other land held by them, will give the basis for determining the surplus land. For example, if a husband’s share as co-owner is 20 acres and wife’s share as co-owner is 20 acres, and their other individual holding is another 10 acres (all of the same category in `C’ Class), the total holding of the family will be 50 acres (20+20+10 acres) and the surplus will be 14 acres."

32. The submission of Shri Manoj Swarup that a direction may be given

to the State Government to accord post facto sanction to the purchase of

excess land cannot be entertained much less accepted because the appellant

has been found guilty of not coming to the Court with clean hands. In any

case, in the absence of any factual foundation, such a plea cannot be

entertained at this stage.

38

33. The appellant’s grievance against the direction given by the learned

Single Judge to the Chief Secretary to ensure that possession of excess land

is taken without delay does not merit consideration because as mentioned in

the earlier part of this judgment, the State Government had already granted

lease of excess land to the appellant.

34. Before parting with the case, we deem it necessary to express our

serious reservation about the bona fides of the State Government in granting

lease of excess land to the appellant. It is impossible to fathom any rational

reason for this action of the State Government ignoring that the appellant

had purchased land in patent violation of Section 154(1) of the Act. By

executing lease agreement dated 15.10.1994, the concerned officers of the

State effectively frustrated the object sought to be achieved by the legislature

by enacting the Act and the order passed by the Collector.

35. In the result, the appeal is dismissed. Since the appellant has not

approached the quasi judicial and judicial forums i.e., the Additional

Commissioner, the High Court and this Court with clean hands and

succeeded in securing interim orders, it is ordained to pay costs, which is

quantified at Rs.2 lacs. With a view to ensure that functionaries of the State 39

Government may not connive with the appellant and compound the wrong

already done, we direct the Government of Uttar Pradesh not to renew the

lease of the appellant at the end of 30 years period and deal with excess land

in accordance with the provisions of the Act.

………………………..J.

[G.S. Singhvi]

…………………………J.

[Asok Kumar Ganguly]

New Delhi

April 01, 2010.

Andhra High Court- CrPC,1973 read with IPC, 1908 for Perjury to be initiated against the Applicants who comes to the Court with Unclean Hands.

October 13, 2012 Leave a comment

It is settled law that a person who approaches the Court for grant of relief, equitable or otherwise, is under a solemn obligation to candidly disclose all the material/important facts which have bearing on the adjudication of the issues raised in the case. In other words, he owes a duty to the court to bring out all the facts and refrain from concealing/suppressing any material fact within his knowledge or which he could have known by exercising diligence expected of a person of ordinary prudence. If he is found guilty of concealment of material facts or making an attempt to pollute the pure system of justice, the court not only has the right but a duty to deny relief to such person."

The Registrar (Judicial) is directed to initiate prosecution against the petitioner for her above conduct in terms of the provisions of the Code of Criminal Procedure, 1973 read with the Indian Penal Code, 1908 for perjury and other related offences. The petitioner is also saddled with costs of Rs.10,000/- for the above abhorrent conduct.

 

 

IN THE HIGH COURT OF ANDRA PRADESH 

THE HON’BLE MR JUSTICE C.V.NAGARJUNA REDDY
Writ Petition No.24224 of 2009

 

09-06-2010

Yalala Swapna

The Hindustan Petroleum Corporation Ltd.,
Mumbai & another

Counsel for the Petitioners: Smt. Lalitha

Counsel for respondents 1&2: Sri Srinarayana for
Sri M. Ravindranath Reddy
Counsel for respondent No.3: Sri G. Kalyanachakravarthy

:ORDER:

This writ petition is filed for a Mandamus to declare the action of the respondents in disqualifying the petitioner’s application by order dated 15.09.2009 as illegal and arbitrary. The petitioner sought for a consequential direction to the respondents to consider her application for HPCL dealership at Shabad, Ranga Reddy District.
The petitioner is one of the applicants for appointment as dealer for running a retail outlet at Shabad, Ranga Reddy District in pursuance of the advertisement issued on 08.06.2009 by respondent No.1. One Smt. G. Sushmitha,  who is impleaded as respondent No.3 at her instance, also applied for the said dealership. Through letter dated 15.09.2009, respondent No.2 informed the petitioner that her application was not in conformity with the conditions of the advertisement, as she has not submitted a copy of marriage certificate or an affidavit in support of her maiden name and name after marriage along with the
application and that therefore her application was treated as invalid and disqualified. Assailing the said order, the petitioner filed the present writ petition. In her affidavit, the petitioner has specifically pleaded that in her educational certificates, her name was shown as Swapnik and after her marriage her name was changed as Swapna. She also pleaded that she filed a notarized  affidavit dated 17.06.2009 regarding change of her name and in support thereof, she filed a copy of the said affidavit.
This Court, while issuing notice before admission on 10.11.2009, directed the respondents not to issue letter of intent in respect of the dealership in question.
A counter affidavit has been filed on behalf of respondent Nos.1 and 2. It is inter alia averred therein that the petitioner has not submitted either marriage certificate or an affidavit in support of her maiden name and name after marriage, as required in the advertisement. This counter affidavit was received by the counsel for the petitioner in February, 2010. Neither reply affidavit has been filed controverting the abovementioned averments nor the petitioner has filed proof of her sending the marriage certificate or affidavit to the respondents at least after receiving the counter affidavit.
The impleaded respondent in her affidavit stated that she was declared as successful candidate for awarding dealership, that the petitioner obtained interim direction behind her back by raising false allegations and that on account of the interim order, the Corporation has withheld issuance of letter of intent.
None of the parties have filed a copy of the advertisement in pursuance of which the petitioner and respondent No.3 have filed their applications.
However, learned counsel for all the parties conceded that Note No.3, which is mentioned in the impugned letter, in pursuance of which the applications contained the following note.
“Married women applicant with change of name after marriage should submit a copy of the marriage certificate or an affidavit in support of the maiden name and name after marriage.”

In paragraph 5 of her affidavit, the petitioner mentioned as under:
“It is submitted that in the 10th Class certificate and till my marriage in all the records my name is shown as Swapnik. After marriage, my husband has changed my name as Swapna. I have filed a notarized affidavit dated 17.06.2009 with regard to change of name. Apart from this, I have filed my passport which stands in my changed name i.e., Swapna.”

As noted above, the petitioner has also filed the purported notarized affidavit dated 17.06.2009. At the hearing, this Court specifically asked the learned counsel for the petitioner whether the petitioner has proof of filing this affidavit. The learned counsel replied in negative. In this writ petition, the petitioner filed a copy of the letter addressed to the South Central Zone
Manager of respondent No.1 Corporation while enclosing her application. She has indicated in the said letter that she was enclosing as many as 13 documents, which included two personal affidavits mentioned at Sl.No.10. The learned counsel for the respondents pointed out that the said two personal affidavits are those which are filed by the petitioner in this writ petition at page Nos.93 and 95 respectively with the material papers and that they are not referable to the purported notarized affidavit said to have been filed by the petitioner regarding change of her name after marriage. This fact is also not controverted by the learned counsel for the petitioner.
In the face of the abovementioned admitted fact position, the petitioner has not only failed to comply with the mandatory requirement of filing a personal affidavit regarding the change of her name, but also made a blatantly false averment in her affidavit filed in this Court and tried to mislead this Court by filing a copy of the purported affidavit with a specific plea that the
said affidavit was filed before the concerned authority of the Corporation. I am therefore of the opinion that the Corporation and its officials have not committed any illegality in rejecting the petitioner’s application, as it was not in conformity with the conditions stipulated by the Corporation in its notification.
By the conduct of the petitioner in filing deliberately false affidavit supported by a copy of the purported affidavit to buttress her false statement made in the affidavit, the petitioner has polluted the pure stream of justice.
While expressing deep anguish at the sagging moral values of life, the Apex Court in Dalip Singh vs. State of U.P.1 observed:
“For many centuries, Indian society cherished two basic values of life i.e., ‘satya’ (truth) and ‘ahimsa’ (non-violence). Mahavir, Goutam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-independence era and the people used to feel proud to tell
truth in the Courts irrespective of the consequences. However, the post-independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the 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 the 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.”

In Oswal Fats an Oils Limited vs. Additional Commissioner (Administration), Bareilly Division, Bareilly and others2 the Supreme Court while dealing with the conduct of a party before it in suppressing the material facts observed:
“It is settled law that a person who approaches the Court for grant of relief, equitable or otherwise, is under a solemn obligation to candidly disclose all the material/important facts which have bearing on the adjudication of the issues raised in the case. In other words, he owes a duty to the court to bring out all the facts and refrain from concealing/suppressing any material fact within his knowledge or which he could have known by exercising diligence expected of a person of ordinary prudence. If he is found guilty of concealment of material facts or making an attempt to pollute the pure system of justice, the court not only has the right but a duty to deny relief to such person.”

The Registrar (Judicial) is directed to initiate prosecution against the petitioner for her above conduct in terms of the provisions of the Code of Criminal Procedure, 1973 read with the Indian Penal Code, 1908 for perjury and other related offences. The petitioner is also saddled with costs of Rs.10,000/- for the above abhorrent conduct. The said amount shall be paid to the A.P. Legal Service Authority within a period of four weeks from today. The Member Secretary of the A.P. Legal Service Authority shall initiate appropriate action for recovery of the said mount, if the petitioner fails to deposit the same.
Subject to the above directions, the writ petition is dismissed.
As a sequel to dismissal of the writ petition, WPMP.No.31490 of 2009 and
WVMP.No.2160 of 2010 are also dismissed.

1 (2010) 2 SCC 114
2 (2010) 4 SCC 728 

Punjab & Haryana HC- CrPC 340 Perjury has to be decided before deciding present Case-

October 13, 2012 Leave a comment

 

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

CRA No. 197 SB of 2010 (O&M)
Date of decision: 25-1-2010

Sunny Bhumbla ………Appellant
Vs
Shashi ………Respondent
CORAM:- HON’BLE MR. JUSTICE HARBANS LAL
Present: Shri K.S.Boparai, Advocate, for the appellant.
HARBANS LAL, J.
This appeal is directed against the order dated 5.12.2008 Annexure P-1 passed by the court of learned Civil Judge (Senior Division) Saheed Bhagat Singh Nagar vide which he allowed the petition moved under Section 9 of the Hindu Marriage Act, for restitution of conjugal rights leaving the parties to bear their own costs and rejected the application
moved under Section 195/340 Cr.P.C.
I have heard the learned counsel for the appellant, besides perusing the record with due care and circumspection. The learned counsel for the appellant has submitted with great eloquence that after the respondent admitted in her cross-examination about
her employment, salary and inheritance of the landed property, she again placed on record another affidavit dated 27.8.2008 solemnly affirming therein that she had inadvertently not mentioned about the source of income as well as employment in the earlier affidavit dated 14.8.2008. Thereafter the appellant moved an application under Section 195 of Cr.P.C. for initiating proceedings against the respondent for submitting a false affidavit before the learned trial Court, in order to get more maintenance from the appellant. The learned trial Court had assured the appellant that his said application shall be decided alongwith the main case. While deciding the main petition, in paragraph No. 13 of the judgment it has been observed that
“in support of her claim for interim maintenance under Section 24 of the Hindu Marriage Act, the respondent/applicant had made certain assertions, which were found to be totally false and the same had apparently been done by her in a deliberate manner. Consequently even an application for initiating suitable proceedings against her on account of her having submitted a false affidavit was also filed by the petitioner on 3.9.2008.
Thereafter, the respondent did not press her claim for interim maintenance, but the same did not absolve her of the liability of the aforesaid lapse. This court, however, does not wish to initiate any such proceedings against the respondent with the hope that sooner or later, the parties may be in a position to resolve their dispute or else this young couple may adopt such other means so that they can part their ways in a peaceful manner and therefore, with a view to avoid undue complication of the matrimonial dispute, no action on account of submitting of the above false affidavit etc. is being initiated against the respondent.”
It is further argued that the learned trial Court has overlooked the fact that the respondent has used the false affidavit in the judicial proceedings. Therefore, all the ingredients of the offences of cheating, forging and perjury etc. are made out and consequently, the order passed by the learned trial Court in not initiating the proceedings under Section 195 read with Section 340 Cr.P.C. is illegal. I have given a deep and thoughtful consideration to these submissions.
A careful perusal of the observations rendered by the learned trial Court in paragraph No. 13 of the impugned judgment would reveal that there is not even a shred of reference to the application moved under Section 195 read with Section 340 Cr.P.C. This apart, no specific reasons have been apportioned for not initiating the action on the basis of the alleged affidavit. The said application having been moved under the provisions of the Code of Criminal Procedure was required to be disposed of separately. It was not desirable on the part of the learned trial Court to decide the said application in a slip shod manner by making mere passing reference to the alleged affidavit. In the application moved under Section 340 of the Cr.P.C. if the Court deems fit,the inquiry has to be held whereas in the present one, the impugned order is absolutely silent as to whether or
not inquiry was held. There is specific procedure which is to be followed while disposing of an application moved under Section 340 of the Criminal Procedure Code. Section 340 of the Criminal Procedure Code reads as under:-
“340.Procedure in cases mentioned in Sec.195–(1) When, upon an application made to it in this behalf or otherwise any Court
is of the opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to to in cl
(b) of sub-section

(1) of Section 195, which appears to have been committed in or in relation to to a proceeding in that Court, or as the case may be, in respect of of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary.
(a) record a finding to that effect.
(b) make a complaint thereof in writing
(c) send it to a Magistrate of the first class having jurisdiction.
(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is nonbailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.

(2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of Sec.195.

(3) A complaint made under this section shall be signed
(a) where the Court making complaint is a High Court, by such officer of the Court as the Court may appoint.
(b) in any other case, by the presiding officer of the Court, and

(4) In this section, “Court” has the same meaning as in Sec.195.”

A glance through the impugned order would reveal that the learned trial Court has given a go by to the provisions of Section 340
Cr.P.C. The approach adopted by the learned trial Court is unwholesome and is depreciable. The impugned order is absolutely silent as to whether the application has been dismissed or allowed, if so for which reasons.
In consequence of the preceding discussion the trial Court is directed to decide the application under discussion in accordance with law.
This appeal stands disposed of accordingly.

(HARBANS LAL)

JUDGE

January 25, 2010

RSK

NOTE: Whether to be referred to the Reporter or not? Yes/No

http://lobis.nic.in/phhc/showfile.php?sn=124

Rajasthan HC- Perjury CrPC 340- Tainted hands cannot be allowed to touch pure fountains of justice.

October 13, 2012 Leave a comment

it is time that exploitation abuse and misuse of equitable jurisdiction is stopped, as founding fathers never intended it to make it an “Allaudin’s lamp” for providing protective umbrella to all inequitable evil geniuses and social parasites. Anti-soqial dishonest and unjust litigants cannot use smoke screen of ‘natural justice’ to perpetuate unnatural injustice. Tainted hands cannot be allowed to touch pure fountains of justice.”

 

 

In the HIGH COURT OF RAJASTHAN

 

Mohanlal vs State Of Rajasthan And Ors. on 1 October, 1980
Equivalent citations: AIR 1981 Raj 3
Author: G M Lodha
Bench: G M Lodha

ORDER

Guman Mal Lodha, J.

1. ‘White collar’ crimes and there again, ‘economic crimes’, shocking and rocking the entire society, ever increasing either in the form of ‘black marketing’ or ‘Food adulteration’ or ‘smuggling’, have assumed disastrous dimensions, providing manifold litigation. The snail moving, haulting and faultering speed. with which the administration and prosecution both act rather in-act is not only shocking, but is challenging the very utility of the laws which are fast ‘break- ing and cracking’ on account of this lethargy, indifference and ‘red tapism’. Whether, this tantamounts to moral abetment or acquiescence is a question to be answered by law-makers and not law-interpreters, if not. the decision would be of pauserity (posterity ?) alone and not courts of law.

2. With the above preface, let me now come to the brass text of the present case and the controversy raised.

3. The stock of cement was confiscated after a ‘raid’ and on inspection on 18-6-1977, but even after three years, neither petitioner-accused has been convicted, nor acquitted. That apart, even the proceedings of confiscation or cancellation of the licence have not become final. The present writ petition challenging the same, filed in September, 1979, has now come up for consideration for decision as to whether the petition should be admitted. Are we not all abetting these alleged social crimes by such inordinate delays ?

4. Mr. K. N. Joshi, learned counsel for the petitioner was very vehement. when he prayed for quashing the impugned order of cancellation of licence, on the ground that it is very valuable fundamental right of the petitioner and he is being deprived of the same by an executive fiat without a proper opportunity to show cause, thus violating both the principles of law and justice. According to him, there was no prima facie case of ‘black marketing’ by contravention of Cement. Order of License conditions, and the case against, his client was wholly fabricated and concocted one,

4A. Petitioner’s case is that on 18-6-1977 Inspector of District Supply Office, Barmer visited shop of the petitioner and directed the petitioner (not ?) to sell the cement to the customers. The shop of the petitioner including the stocks. was sealed.

5. A notice was received under Clause 11 of the Rajasthan Cement Order, 1974 (hereinafter referred to be as the Cement Order) and the petitioner submitted explanation along with his affidavit dated 9-8-1977. Against the written order-sheet, it was pointed out by Mr. Joshi, that opportunity was claimed for producing evidence, but the Officers concerned asked the petitioner to put signature on a blank order-sheet which was later on fabricated to show that petitioner voluntarily closed the evidence on that day. An appeal was filed under Clause 20 of the Rajasthan Cement Order, before the Collector. Barmer and since there was no substance in the same in view of the Collector, he dismissed the appeal on 23-11-1977. A revision was then filed before the State of Rajasthan but the same was rejected on 25-4-1979 with the observation that no revision lies. In this writ petition petitioner has made the following prayers:

“(i) that by an appropriate writ, order or direction, the order of the District Supply Officer, Banner, Ann. 1 and the order of the Collector, Barmer Ann. ? may be quashed.

(ii) That by an appropriate writ, order or direction, the respondents may be directed to return the forfeited commodity to the petitioner and his licence may be renewed.

(iii) Any other appropriate writ, order or direction to which the petitioner may be entitled to in the circumstances of the case may be passed.”

6. As mentioned earlier, Mr. Joshi, appearing for the petitioner, vehemently argued that his client has not been given proper opportunity of hearing or showing cause by leading evidence before the impugned order was passed. It was pointed out that the order-sheet was fabricated later on, by the officers concerned who told the petitioner that they would intimate the date. This submission of the petitioner was vehemently opposed by the learned Deputy Government Advocate. The respondent along with their reply filed a copy of the order-sheet dated 9-8-1977 (Ex. Rule 6) which reads as under:

“OFFICE NOTE”

9&8&77 Jh eksguyky lhesaV Mhyj flokuk mifLFkrh-

mDr Mhyj us uksfVl dk tckc is’k fd;k tks ‘kfey i=koyh fd;k x;k A Mhyj us viuh lQkbZ esa Jh Fkwadk jke dk gYQukek is’k djk;k A Mhyj viuh lQkbZ cUn djrk gS A

QSlyk tqnkukek fy[kk x;k A

Mhyj dk lhesaV ykbZlsUl fujLr djrs gq;s mldh izfrHkwfr jkf’k ds :i;s 1000@& tCr fd;s tkrs gS A

i=koyh QSly lqekj gS A

g% vifBr 9&8& \

gLrk{kj % eksguyky fgUnh esa 98-77

It means that the petitioner, who was the dealer voluntarily closed his evidence. This has been signed by the petitioner, Mohanlal. All explanation of Mr. Joshi given during the arguments to persuade the Court that the signatures were obtained on the blank paper and the order-sheet was fabricated later on, can only be equaled with a ‘cock and bull’ story. There is no foundation for such an argument nor there are any circumstances, to accept it as correct or even plausible. The petitioner filed his own affidavit and then, stated that he does not want to lead any more evidence. A dealer of cement cannot be treated as an illiterate, ignorant, rustic villager. Since he was operating licence of cement, he was conversant with the office of the District Supply Officer and the proceedings, which are taken there. I am therefore, not at all, prepared to accept the contenlion of Mr. Joshi that an opportunity was not given to his client to produce evidence or defend himself or show cause against the order of cancellation of licence and forfeiture of security.

7. Even ot herwise, coming to the merits of the case, explanation which the dealer submitted, was that since packing was old. the weight of cement in every gunny bag differed. A cement bag normally is required to be of 50 Kilos in one bag. It is most shocking and surprising that out of that, only 29 Kilos remained and the rest of the cement evaporated. Another most surprising special feature of this case is that 55 gunny bags of cement out of 56 lying in the godown, were of the customers. The explanation given was that all those consumers left cement in the godown there because of rains. This explanation is preposterous. As is well known, cement supply is very restricted and there being great scarcity, there is a great rush. In fact, in the instant case, a written complaint was made against the petitioner that he is indulging in black-marketing and on that complaint, above inspection-cum-raid was carried out by the Supply Inspectors. Reply of the petitioner gives out a different story that these 55 cement gunny bags were given to one Dhankaram, a truck driver who kept them with the petitioner because of rains. It was also stated that one Jasrai purchased three cement bags but took 2 with him and left one with the petitioner. All these stories on the very face of them are so unrealistic and against the ordinary course of human conduct that they failed to carry any conviction of truth with me.

8. Inspector examined purchasers on the spot at the time of inspection and they corroborated allegations of ‘black marketing’. As per the checking report (Annexure Rule 2) dated 8th January, 1977, the cement bags, which were given to the various complainants or customers, were weighed on the spot. One was found to be of 37 kilogrammes, other one was found to be 42 kilogrammes and third one was found to be 43.500 kgs. These bags were those which were sold to the different customers by the petitioner, M/s. Mohanlal, further Rupees 21 were charged per bag.

8A. Mr. Joshi, learned Advocate, appearing on behalf of the petitioner, submitted that in some of the cement bags, cement was less and in others, it was more and therefore, what was to be seen was total weight of the cement divided by the number of bags. It is not for me to finally comment over this but undoubtedly, cement bags are received in packed condition and they should be (of) standard weight, according to law. A dealer cannot be allowed to take away cement from one bag and put more in other bag. Whether this was modus operandi of the petitioner Mohanlal in the commission of the offence and is not a question which calls for determination now but the violation of the license condition and the law is patent warranting cancellation of the license.

The petitioner was charging 15 paise more but petitioner gave no explanation in his reply for the same nor examined any consumer or customer. Petitioner in reply to the notice, admitted that cement bags did not contain standard weight and cash memos were not given because of rush and so also the entries were not made in the Register because of the same rush. The District Supply Officer has given detailed order dated 9-8-1977 and I am convinced that not only proper opportunity was given but all aspects of the case have been considered by him in details and a comprehensive iudgment has been given.

9. Mr. Joshi placed reliance upon the judgments of Hon’ble the Supreme Court in (i) M/s. Bareilly Electricity Supply Co. Ltd., v. The Workmen (AIR 1972 SC 330), (ii) State of Orissa v. Dr. (Miss) Binapani Dei (AIR 1967 SC 1269) and (iii) Khem Chand v. Union of India (AIR 1958 SC 3001, about the concept of opportunity. Clause 11 of Cement Order reads as under:–

“11. Contravention of terms and conditions of licence or provisions of this order: No holder of a licence issued under this order or his agent or any other person acting on his behalf, shall contravene any of the provisions of this order or any of the terms or conditions of the licence and if any such holder or his agent or servant or any other person acting on his behalf contravenes any of the said provisions or terms or conditions, then, without prejudice to any other action that may be taken against him, his licence may be cancelled or suspended by order in writing of the licensing authority:

Provided that, no order shall be made under this clause unless the licensee has been given a reasonable opportunity of stating his case against the proposed cancellation or suspension.

Proviso makes it clear that all that is required is that the licensee should be given reasonable opportunity of stating his case, against the proposed cancellation or suspension. This reasonable opportunity of stating the case cannot be equated with reasonable opportunity contemplated to be given to a civil servant before passing major punishment of dismissal. That being so, the above judgments and decisions cannot provide any guidance for deciding the ambit and scope of opportunity of stating the case to be given to the licensee before his licence is cancelled.

10. Under the Essential Commodities Act various orders have been issued for ensuring equitable and fair distribution of commodity at a fair price. Licences are given to the dealers on the condition that they would act according to the law of the land, the orders and the instructions of the statutory authorities passed from time to time. Any contravention of the licence condition and/or clauses of the order or Rules, is sufficient to cancel the licence. All that is required is that the reason for the same should be made known to the licensee so that he can state his case. A detailed inquiry or investigation or trial of the nature of the civil or criminal case is neither contemplated nor permitted under Clause 11.

11. I am, therefore, firmly of the view that the phrase, ‘stating the case’ means that the opportunity to file reply and also any documentary evidence or oral evidence, if it is relevant in respect of the same. But it cannot mean a trial or inquiry like that of civil or criminal case.

12. No one can claim a right of licence as such, although one can claim consideration for the same amongst his similar situated persons. The cancellation of a licence under the Cement Order as referred to above is, therefore, not a judicial order but it is an administrative order under the statute and should follow the condition of the statute only. Principle of natural justice cannot be invoked because the proviso of the Clause 11 expressly provides the nature of the opportunity which is required to be given. When a rule or section provides nature of the opportunity to be given the principles of natural justice and the ambit and scope of them, as held by many Courts would not come in picture at all. Similarly, reasonable opportunity available to a civil servant or industrial workman either under Article 311 of the Constitution of India or the Standing Orders, would not be applicable to a case of defaulting licensee whose licence is sought to be cancelled for certain omissions or commissions.

13. In this view of the matter, I am convinced that the petitioner was given full opportunity before the order of cancellation of licence was passed and further, that the cancellation of licence was made on valid, cogent and reasonable grounds. The writ petition, therefore, cannot be allowed and deserves to be dismissed.

14. The result is that this writ petition cannot succeed.

15. Before parting with this case, I cannot restrain myself from observing that “invoking of principles of natural justice” sounds most “unnatural”, when it comes from the alleged economic offender, who commits daylight robbery and shameless rape on “social and natural iustice”, in greed of profiteering by unnatural methods of ‘black marketing’, exploiting the scarcity of essential commodities. This is misuse, exploitation and prostitution of Article 226.

16. I am inspired to say so, on reading the following weighty observation of my learned brother, Mr. Justice M. L, Shrimal in Fatehlal v. State of Rajas-than (1977 WLN 88):

“Making the supply of fertilizer scarce and selling it at higher rates than prescribed (black marketing) is bound to have a disastrous impact on the State’s efforts to stabilize the country’s economy. Smugglers, hoarders and black marketeers have no country, caste or nation of their own. Their only ‘God’ and concern is the yellow metal, — ‘Gold’. The offence for which the accused-petitioner has been convicted is of the species of ‘economic’ crime which need to be curbed effectively. The ineffectiveness of prosecution in arresting the wave of white collar crime must disturb the judges’ conscience. The Court is not a computer, which registers what is fed into it and answers by mechanical intelligence but a human being to get at the truth and public good. An antisocial adventurer cannot claim for his nefarious and injurious activities any greater legal regard than for the defence of society, itself. If members belonging to higher status in life should show scant regard for the laws of this country which are for public good, for protecting the common man, the consequential punishment for the violation of such laws must be equally deterrent and such person should be made to suffer inequital for the harm he has done to the society. I do not consider it to be a fit case in which benefit of Section 4 of the Probation of Offenders Act may be extended to the accused-petitioner. The Commission also had in its 47th Report recommended the exclusion of the applicability of probationary process in the case of special (social ?) and economic offences”.

17. Again, the same learned Judge sitting with Justice Mr. N. M. Kasiwal in Associated Cement Co. Ltd., Lakheri v. State of Rajasthan (Civil sc. Appeal No. 66 of 1980 decided on 25-9-1980) observed as under:

“Public policy does not remain static in any given community. It may vary from generation to generation and even in the same generation. Public policy would be almost useless if it were to remain in fixed moulds for all times. The difficulty of discovering what public policy is at any given moment certainly does not absolve the Judges from the duty of doing so. In conducting an enquiry as already stated, Judges are not hide-bound by precedent. The Judges must look beyond the narrow field of past precedents, though this still leaves open the question in which direction they must cast their gaze. The Judges are to base their decision on the opinions of men of the world, as dis- tinguished from opinion based on legal learning. In other words, the Judges will have to look beyond the jurisprudence and that in so doing, they must consult not their own personal standards or predilections but those of the dominant opinion at a given moment, or what has been termed customary morality.”

18. I have also expressed similar views in Ganganraj Nagori v. Union of India (1979 WLN 634). on Sex, Morality and Law.

19. I am, therefore, convinced that it is time that exploitation abuse and misuse of equitable jurisdiction is stopped, as founding fathers never intended it to make it an “Allaudin’s lamp” for providing protective umbrella to all inequitable evil geniuses and social parasites. Anti-soqial dishonest and unjust litigants cannot use smoke screen of ‘natural justice’ to perpetuate unnatural injustice. Tainted hands cannot be allowed to touch pure fountains of justice.

20. The writ petition is dismissed with costs, but it is made clear that none of the observations made above in this judgment would prejudice the consideration and decision of the criminal case against the petitioner.

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