Research › Search › Judgment

Madras High Court · body

2015 DIGILAW 3762 (MAD)

R. Kumar v. Commissioner, Nagercoil Municipality

2015-12-11

K.RAVICHANDRABAABU

body2015
ORDER : W.P.(MD)No.20756 of 2015 is filed challenging the resolution of Nagercoil Municipality Council No.1092, dated 15.10.2015 in respect of the contract work No.16/15-16/E3(RE) and for further direction to the respondents to allot the contract work to the petitioner as per the tender held dated 09.10.2015. Through the impugned resolution, the Nagercoil Municipality resolved to cancel the tender submitted by the petitioner and consequently, to conduct the re-auction. 2. When the above writ petition was posted for admission on 24.11.2015, the learned Additional Government Pleader took notice for the first respondent and one Mr.P.Athimoola Pandian, learned Counsel took notice for the respondents 2 and 3 and both the respondents' Counsel sought time for getting instructions. Accordingly, the matter was adjourned to next week. Thereafter the Nagercoil Municipality called for re-auction and issued notification dated 03.11.2015, which was challenged by the very same petitioner in W.P.(MD)No.21890 of 2015. When the above writ petition was posted for admission before this Court on 08.12.2015, this Court directed the matter to be listed along with earlier petition in W.P.(MD)No.20756 of 2015 after two weeks for filing counter affidavit. It is to be noted that both the above writ petitions were filed by one and the same Counsel. It is also to be noted that though the petitioner sought for interim orders, this Court has not granted any interim order. 3. While so, the very same writ petitioner filed the third writ petition in W.P.(MD)No.22117 of 2015 by engaging another Counsel challenging the very same resolution No.1092, dated 15.10.2015 and the very same re- tender notification dated 03.11.2015 and consequently sought for a direction to the Nagercoil Municipality to give the work order to the petitioner. When this matter was posted for admission on 10.12.2015, Mr. V. Meenakshi Sundaram, learned Counsel, representing the Counsel on record in the above Writ Petition No.22117 of 2015 appeared and argued the matter for admission and pressed for passing an interim order as well. At that time, the learned Counsel appearing for the Nagercoil Municipality opposed the very admission of the above writ petition by contending that the writ petition in W.P.(MD)No.22117 of 2015 is filed once again for the very same reliefs which were already sought for in other two writ petitions as stated supra through different Counsel. At that time, the learned Counsel appearing for the Nagercoil Municipality opposed the very admission of the above writ petition by contending that the writ petition in W.P.(MD)No.22117 of 2015 is filed once again for the very same reliefs which were already sought for in other two writ petitions as stated supra through different Counsel. He also submitted that the petitioner has also not disclosed those facts in his affidavit regarding the filing of earlier writ petitions and pendency of the same before this Court. Therefore this Court paused over the matter for verifying the above said fact and called call for those writ petitions which were not listed on 10.12.2015. Accordingly, the matter was taken up at 02.15 p.m. on 10.12.2015 and it was found that the earlier writ petitions were filed by the same petitioner for the very same relief as sought for in this writ petition, of course through different counsel. Immediately on coming to know about the said fact, Mr. V. Meenakshi Sundaram, learned Counsel appearing for the petitioner sought permission of this Court to withdraw his appearance by stating that he was not instructed about this blender committed by the petitioner. Accordingly the matter is directed to be listed today along with other two writ petitions in order to hear the counsel appearing for the other writ petitions. 4. Today all the three matters are listed. The learned Counsel on record and appearing in W.P.(MD)No.22117 of 2015 submitted that he was not informed by the petitioner about the filing of earlier writ petitions and therefore such suppression made by the petitioner was not within his knowledge. Therefore he too sought permission of this Court to withdraw his appearance. This Court is not inclined to grant permission to withdraw the appearance of the learned Counsel appearing for the petitioner in W.P.(MD)No.22117 of 2015, as there is no necessity as it is evident that the petitioner alone has played the mischief by changing the counsel as well, especially when the present Counsel for the petitioner states that he was not informed about the said fact. 5. I have perused the affidavit filed in support of the writ petition in W.P.(MD)No.22117 of 2015, which was sworn on 12.12.2015. Absolutely there is no reference whatsoever about the filing of the earlier writ petitions and its pendency in respect of the very same cause of action with very same prayers. 5. I have perused the affidavit filed in support of the writ petition in W.P.(MD)No.22117 of 2015, which was sworn on 12.12.2015. Absolutely there is no reference whatsoever about the filing of the earlier writ petitions and its pendency in respect of the very same cause of action with very same prayers. Thus, it is evident that the third writ petition viz., W.P.(MD)No.22117 of 2015 is nothing but an abuse of process of the Court with averments, as though the petitioner is approaching this Court as the first time by seeking the relief as prayed in the writ petition. When the petitioner is one and the same and all the affidavits were filed by him only in all the three writ petitions, he is bound to disclose the pendency of other two writ petitions in the last writ petition, even assuming that the prayer sought for in the last writ petition is totally different one. It has not been done so. 6. Thus the intended suppression of material facts is also evident. Admittedly, in this case, the prayer sought for in the last writ petition is the very same prayer sought for in other two writ petitions. Therefore it is evident that the petitioner, having not obtained any ex-parte interim order in the earlier two writ petitions, in respect of the very same cause of action, has filed the third writ petition challenging the very same impugned proceedings by engaging another Counsel by suppressing the above stated facts, only for the purpose of deceiving this Court and to get an exparte interim order. At this juncture this Court would like to record its appreciation on the learned Counsel appearing for the Nagercoil Municipality, who has immediately intervened and invited this Court's attention to the pendency of the other writ petitions filed by the very same petitioner with the very same prayers. 7. Suppression of material facts before the Court is to be viewed very seriously and the person who suppressed such material facts cannot seek any indulgence, so also is not entitled to any leniency. At this juncture, it is useful to refer to the following decisions of the Apex Court. (i) In (2008)1 SCC 560 (Udyami Evam Khadi Gramodyog Welfare Sanstha and another vs. State of Uttar Pradesh and others), it has been observed at paragraph No.16 as follows:- ‘16. A writ remedy is an equitable one. At this juncture, it is useful to refer to the following decisions of the Apex Court. (i) In (2008)1 SCC 560 (Udyami Evam Khadi Gramodyog Welfare Sanstha and another vs. State of Uttar Pradesh and others), it has been observed at paragraph No.16 as follows:- ‘16. A writ remedy is an equitable one. A person approaching a superior court must come with a pair of clean hands. It not only should not suppress any material fact, but also should not take recourse to the legal proceedings over and over again which amounts to abuse of the process of law. In Advocate General, State of Bihar vs. M.P.Khair Industries (1980)3 SCC 311 : 1980 SCC (Cri) 688, this Court was of the opinion that such a repeated filing of writ petitions amounts to criminal contempt.’ (ii) In (2010)2 SCC 114 (Dalip Singh vs. State of Uttar Pradesh and others) at paragraph 7, it has observed as follows:- ‘7. In Prestige Lights Ltd. V. State Bank of India (2007) 8 SCC 449 , it was held that in exercising power under Article 226 of the Constitution of India the High Court is not just a court of law, but is also a court of equity and a person who invokes the High Court's jurisdiction under Article 226 of the Constitution is duty-bound to place all the facts before the Court without any reservation. If there is suppression of material facts or twisted facts have been placed before the High Court then it will be fully justified in refusing to entertain a petition filed under Article 226 of the Constitution. This Court referred to the judgment of Scrutton, L.J. in R v Kensington, Income Tax Commissioners (1917) 1 K.B. 486 (C.A) and observed:- "In exercising jurisdiction under Article 226 of the Constitution, the High Court will always keep in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, then the Court may dismiss the action without adjudicating the matter on merits. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible." (iii) In (2010)4 MLJ 567 (SC) (Oswal Fats Oils Ltd., vs. Additional Commissioner (Administration), Bareilly Division, Bareilly and others), it has been observed at paragraph Nos.15 to 17 as follows:- 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 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. 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 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......” 8. Perusal of the above decisions of the Apex Court makes it clear that a person coming to the Court by suppressing material facts must be dealt with severely apart from showing him the door immediately. A person approaching the Court with unclean hands and taking recourse the legal proceedings successively for the very same cause of action with the very same relief, cannot be shown any indulgence as such an action is an abuse of the process of the Court and Law. It is not necessary that such person by way of such suppression, should have obtained some favourable order from the Court. It is enough for the court to refuse further hearing, if it is found that the person has suppressed the material facts, even during the course of hearing. The conduct of the person that matters not the result out of such conduct. 9. In this case, the conduct of the petitioner in this case would show without any doubt that he is not having any bonafide and on the other hand he wanted to abuse the process of this Court as far as possible by suppressing material facts till he gets an order in his favour. Therefore, I find that the petitioner is not entitled to be heard by this Court solely on the reason of suppression of material facts and filing of the successive writ petitions through different Counsels with the same prayer. If such person is allowed to go freely simply by dismissing the writ petitions, it would send a wrong signal to the litigant public. Therefore, I find that this is a fit case for imposing heavy costs on the petitioner for indulging such act of suppression. Accordingly all the three writ petitions are dismissed and the petitioner is directed to pay costs of Rs.50,000/-(Rupees Fifty Thousand Only) payable to the Tamil Nadu Chief Minister's Flood Relief Fund within a period of two weeks from the date of receipt of a copy of this order. Accordingly all the three writ petitions are dismissed and the petitioner is directed to pay costs of Rs.50,000/-(Rupees Fifty Thousand Only) payable to the Tamil Nadu Chief Minister's Flood Relief Fund within a period of two weeks from the date of receipt of a copy of this order. If the costs is not paid by the petitioner as stated supra, the same shall be recovered from the petitioner in accordance with revenue recovery proceedings apart from taking appropriate action for debarring him from taking part in any other tender process. Consequently the connected Miscellaneous Petitions are also dismissed.