Madhya Pradesh High Court
Ms. Nikita Wilson vs The State Of M.P. on 27 August, 2019
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
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W.P. No.10873/2019
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
W. P. No.10873/2019
(Ms. Nikita Wilson Vs. The State of M.P. & Others)
Jabalpur, Dated : 27.08.2019
Shri Shailendra Verma, learned counsel for the petitioner.
Shri Praveen Dubey, learned Deputy Advocate General for the
respondents No.1 to 4.
Shri K.K. Gautam, learned counsel for the respondent No.5. Mrs. Manjit P.S. Chuckal, learned counsel for the respondent No.6/Intervenor.
Since the pleadings are complete and parties are ready to argue the matter finally and as the matter relates to the transfer of services of the petitioner and private respondent, therefore, it is heard finally.
2. By the instant petition, the petitioner is questioning the validity of the order dated 28.05.2019 (Annexure-P/7) whereby, she has been directed to be transferred from In-charge of Police Station Rampur-Gurra, District Hoshangabad (M.P.) to Police Station Pipariya, District Hoshangabad (M.P.).
3. The challenge is basically founded on the ground that the order impugned is contrary to the settled principle of law and is in violation of the transfer policy (Annexures-P/8 and P/9). It is contended by the learned counsel for the petitioner that the petitioner is a victim of frequent transfer and the order impugned is -2- W.P. No.10873/2019 one of the rings of chain of frequent transfer as the petitioner has suffered four transfers within a span of 14 months. It is further contended by the learned counsel for the petitioner that the order impugned has been issued to accommodate respondent No.5 who is a blue-eyed person of the "Sand Mafiyas". With these premises the order impugned is sought to be quashed.
4. Per contra, the learned Deputy Advocate General appearing for the respondents No.1 to 4/State relied upon their reply in which they have denied allegations made by the petitioner in her petition. It is stated by the learned counsel for the respondents No.1 to 4/State that the order of transfer issued against the petitioner whereby she has claimed herself to be a victim of frequent transfer is, in fact, not the order of transfer but it is a local shifting of the petitioner from one Police Station to another. It is stated by the respondents/State that the petitioner herself came to Hoshangabad at her own request and, therefore, she is being shifted from one Police Station to another and from one place to another within the District of Hoshangabad only. The learned counsel for the State has very vehemently opposed the maintainability of the petition and prayed for its dismissal mainly on the ground that the petitioner has concealed the vital facts and by making false averments in the petition trying to mislead the Court and as such, she has not approached this Court with clean hands and clean heart. The petition, therefore, deserves dismissal. In support of their -3- W.P. No.10873/2019 contention, the counsel for the respondents No.1 to 4/State has drawn the attention of this Court towards the averments made by the petitioner in paragraph-5.1 of the petition in which she has stated that in the order Annexure-P/1 dated 13.03.2018, it has wrongly been mentioned that she is being transferred on her own application and at her own expenses whereas her transfer vide order Annexure- P/1 was on her own request. He submits that this fact has been clarified and admitted by the petitioner in the rejoinder submitted by her. The respondents/State have also tried to justify that the order of transfer issued against the petitioner including the order impugned are nothing but a local shifting/arrangement made within the District under administrative exigency. He has also emphasized that all the orders issued directing posting of the petitioner from one place to another clearly reveal that it is not a transfer but only a work assigned within the District Hoshangabad as the petitioner herself claimed transfer at her own request, therefore, she cannot be said to be transferred but was being accommodated within the District Hoshangabad.
5. Smt. Manjit Chuckal, learned counsel appearing for the respondent No.6/intervenor has also moved an application for intervention on behalf of the respondent No.6 on the ground that in place of the petitioner, respondent No.6 is being brought but deliberately, the petitioner has not impleaded him as a party respondent. Thus, in her application filed on 16.07.2019 she has -4- W.P. No.10873/2019 stated that the petition deserves to be dismissed only on the ground that the same suffers from non-joinder of necessary party. As per the learned counsel for the intervenor, on 28.05.2019, the respondent No.5 was brought in place of the petitioner but later on his transfer order has been cancelled and respondent No.6/intervenor has been brought to Police Station Rampur-Burra replacing the petitioner. It is also stated by the learned counsel for the intervenor that on the date of obtaining interim order from this Court on 24.06.2019, the petitioner was well aware of the fact that the respondent No.6 was being brought in her place but deliberately she did not make him party and obtained interim order by suppressing this material fact. She submits that if ground of accommodation in respect of the respondent No.5 was raised and claim of the petitioner that the respondent No.5 is a 'Blue-eyed' person then on the date of interim order, the petitioner should have disclosed that the situation as pleaded in the petition got changed and the Court ought to have been apprised about the changed circumstances but that was not done and the petitioner deliberately suppressed this material fact. Accordingly, the petition deserves to be dismissed and the interim order dated 24.06.2019 should be vacated.
6. Shri K.K. Gautam, learned counsel appearing for the respondent No.5 has, in fact, no say in the matter as his order of transfer has already been cancelled.
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7. The learned counsel for the petitioner has also placed reliance upon a decision reported in 2010(1) MPLJ 656 (Rajesh Kumar Shakya vs. State of M.P. & Anr.) and also relied upon the case reported in (2006) 8 SCC 1 (Prakash Singh & Ors. vs. Union of India & Ors.).
8. As per the arguments advanced by the learned counsel for the parties, I am not entering into the arena of the issue whether the order impugned is violated or not. Firstly, I am dealing with the objection raised by the learned counsel for the respondents/State and also by the intervenor that the petitioner has not approached this Court with clean hands and clean heart and has suppressed the material facts therefore, in consistent view of the Supreme Court as well as this High Court, the petition is liable to be dismissed. From the averments made in the petition it is clear that the petitioner, in paragraph-5.1 of the petition, has made a statement that her order of transfer dated 13.03.2018 (Annexure-P/1) was on wrong premises showing her transfer to be a transfer at her own request. This fact was incorrect and false in pursuance to the documents filed by the respondents/State i.e. Annexure-R/1 stating that an application has been made by the petitioner requesting her transfer to Hoshangabad as she has completed five years in District Betul. The application is dated 29.01.2018 and as per the respondents, her order of transfer got issued on 13.03.2018 which was made at her own request shifting her at Hoshangabad. Not only this, but the petitioner has -6- W.P. No.10873/2019 also clarified this fact in her rejoinder. It is nothing but an admission made by the petitioner that she was transferred to Hoshangabad at her own request. This fact is mentioned by the petitioner in the rejoinder explaining as to how and why she had given her consent for transfer at Hoshangabad but this fact mentioned in the rejoinder is immaterial for the reason that the same should have been part of the body of the main petition and also this should have been brought to the notice of the Court before getting interim order on 24.06.2019.
Secondly, as contended by the learned counsel for the intervenor, when the transfer of respondent No.6 was made in place of the petitioner, this fact should have been disclosed by the petitioner before the Court on or before 24.06.2019 when the petition was entertained and interim order was granted. She submits that the averments made by the petitioner that the respondent No.5 is a Blue-eyed person/officer of "Sand Mafiyas" and to accommodate him, she was being shunted out but after cancelling the order of transfer of respondent No.5 this ground, in fact, did not survive on the date of entertaining the petition but the Court proceeded in the matter as if those facts were correct and the petitioner was being unnecessarily harassed by the respondents. The learned counsel for the intervenor further submits that these facts clearly indicates that the petitioner had not approached this Court with clean hands and clean heart and suppressed the material -7- W.P. No.10873/2019 information from the Court just to get an interim order in her favour. She has relied upon the law laid down by this Court in W.P. No.2175/2012 parties being Kanoongo Filling Station and another vs. State Bank of India and others reported in (2013) SCC OnLine MP 6528 and also in the case of Holy Health and Educational Society vs. Delhi Development Authority reported in 1999 SCC OnLine Del 396.
9. I have heard the learned counsel for the parties and perused the record. From perusal of the record, I find substance and force in the contention raised by the learned by the respondents and therefore, it is a fit case in which it can be easily inferred that the petitioner has not approached this court with clean hands and clean hearts. This Court in the case of Kanoongo Filling Station and another (supra), has observed as under :-
"8. I deem it proper to first deal with the last objection of the learned counsel for the other side regarding non-disclosure of the relevant fact. It is to be seen whether non-disclosure of filing of SA No. 40/2011 was suppression of a "material fact".
Whether the petitioner was required to disclose the said fact in the present petition.
9. Shri Agarwal submits that the DRT decided SA No.40/2011 on 26.9.2012 and this petition was filed on 19.3.2012 and, therefore, the petitioner had no occasion to disclose this fact. In addition, it is contended that the petitioner's reliefs before the DRT and before this Court are different. Learned counsel for the petitioner further contended that although in the relief column of the writ petition (para 2), it is not disclosed about filing of the matter before the DRT, it is -8- W.P. No.10873/2019 mentioned in the body of the petition. However, despite repeated query, learned counsel for the petitioner is unable to show the pleading where it has been even remotely disclosed about the matter filed before the DRT.
10. Thus, the first question is whether the relief claimed before the Tribunal has any nexus/relevance with the present matter and whether the petitioner should have disclosed the factum of filing of SA before this Court. I am not impressed with the contention of Shri Agarwal that since the Tribunal decided the matter on 26.9.2012 after filing of this writ petition, the factum of filing of SA was not required to be disclosed. Even if the judgment of DRT came lateron, it is admitted position that when this writ petition was filed, the SA was already pending before the DRT.
11. Paragraphs 5.11 and 5.12 of the SA aforesaid are reproduced as under:-
"5.11 That, the respondent Bank yet again came out with a SBI OTS Scheme 2010, copy of which is annexed herewith as Annexure A/17. The applicant no.1 yet again submitted a proposal under the said Scheme dated 31.7.2010 Annexure A/18. Under the said Scheme the applicant no.1 was required to deposit 70% of the outstanding dues as on the date when the account was classified as doubtful provided the said amount is deposited within a period of one month. The applicant no.1 proposed to pay the settlement amount within a period of one month. However, it was again with a condition that proper investigation in respect of the earlier transactions shall be made by the Bank. Shockingly and surprisingly the respondent Bank issued letter dated 16.09.2010 (Annexure A/19) thereby mentioning the two earlier correspondences made by the respondent Bank in relation to the OTS proposal. It was informed that the OTS proposal of the applicant no.1 under the OTS Scheme of -9- W.P. No.10873/2019 2009 and OTS Scheme of 2010 is not accepted by the Bank. The applicant no.1 gave a detailed reply to the said letter dated 15.01.2011 (Annexure A/20) thereby informing that the Bank has not assigned any reason for not accepting the OTS proposal submitted by the applicant no.1. The irregularities which were committed by the respondent Bank was again reiterated and request for proper investigation of the account was made. The applicant no.1 again proposed to settle the accounts as per the OTS Scheme 2010.
5.12 That, the respondent Bank in response to the letter written by the applicant vide letter dated 01.02.2011 (Annexure A/21) replied that two debit entries were made in the account in respect of the Demand Draft which were issued earlier. Along with the said letter the respondent Bank annexed the earlier letters written as regards the OTS proposal submitted by the applicant no.1, which letters were never served on the applicant. It was for the first time the applicant no.1 came to know that the OTS proposal under OTS Scheme 2009 was not accepted by the Bank because the outstanding dues in the accounts were more than Rs.25.00 lac. Thus, absolutely contrary stand was taken by the respondent Bank. In addition to the aforesaid the outstanding dues were never over and above Rs.26.00 lac as in the Cash Credit Limit account the respondent Bank was charging interest despite the fact that the same was classified as NPA. If that interest is removed from the outstanding dues then the outstanding dues in both the loan accounts shall be less than Rs. 25.00 lac and the proposal of the applicant no.1 could be considered under the OTS Scheme 2009. The respondent Bank also made efforts to deliver the Banker's cheque of Rs.1,31,409/- to the applicant no.1. This fact came into the knowledge of the applicant no.1 from the correspondences which were annexed along with the letter dated 01.02.2011."-10- W.P. No.10873/2019
The relief claimed before the DRT also reads as under:-
"In view of the facts and grounds as mentioned above, the applicants pray for the following reliefs:-
(i) Set aside the demand notice issued under Section 13 (2) of the Act of 2002 dated 21.05.2007 (Annexure A/4) issued by the respondent Bank;
(ii) Set aside the possession notice dated 15.02.2011 issued under Section 13(4) of the Act of 2002 (Annexure A/24) by the respondent Bank;
(iii) Set aside the Possession Notice published in daily newspaper dated 17.02.2011 (Annexure A/25);
(iv) Set aside the entire proceedings initiated by the respondent Bank under the provisions of the Act of 2002 and which shall be initiated in pursuance to the possession notice dated 15.02.2011;
(v) Declare that the entire action of the respondent Bank under the Act of 2002 and the Rules framed thereunder as illegal and liable to be set aside.
(vi) Direct the respondent Bank to accept the compromise settlement of the applicant as per OTS Scheme 2010."
A bare perusal of the pleadings and the reliefs claimed by the petitioner clearly shows that the petitioner has assailed the action of the respondents in not accepting the compromise settlement as per OTS Scheme 2010. Pleading and prayer in this regard was specifically made by the petitioner before the Tribunal. If the prayer (vi) before the Tribunal is examined with the prayer and pleading made in the present writ petition at
(v), it will be crystal clear that ultimately the net relief which the petitioner is claiming is acceptance of his OTS application 2010. The -11- W.P. No.10873/2019 petitioner has prayed for this relief before the Tribunal. Thus, in the considered opinion of this Court, even if the relief claimed in the present writ petition has a thread relation with the relief claimed in the DRT, in all fairness the petitioner should have disclosed it in the body of the petition.
12. In the High Court Rules a formate of writ petition is prescribed. The different columns/paragraphs are devoted for different purposes which deals with the question of limitation/delay, availability of alternative remedy, declaration whether such remedy is exhausted and whether matter was previously filed or pending before any forum. These paragraphs were mentioned in the beginning in the petition with a view to facilitate the Benches to lay their hands on the relevant facts on the face of it.
13. Recently, in AIR 2013 SCW 34 (Bhaskar Laxman Jadhav and others vs. Karamveer Kakasaheb Wagh Education Society and others), the Apex Court opined that it is the obligation of a litigant to disclose all the facts of a case and leave the decision on the Court. Merely en passant reference to some fact in order does not serve the requirement of disclosure. It is not for the Court to look into every word of pleadings, documents and annexures to fish out a fact. Considering the aforesaid, it is the duty of a litigant to mention every fact in the columns provided for this purpose.
14. This is also settled in law that litigation before a court of law is not a game of chess. One has to approach the court with clean hands, clean mind, clean heart and clean objective. If material facts are not disclosed, the court is bound to dismiss the petition without entering into the merits of the matter. In other words, the conduct of the litigant in non-disclosure or suppression of material fact is itself a good reason for dismissing the petition." -12- W.P. No.10873/2019
10. Likewise, in the case of Holy Health and Educational Society vs. Delhi Development Authority (supra), the Delhi High Court has observed as under :-
"16. I have carefully perused the principles laid down in the aforesaid decision by the Division Bench of this Court and on perusal thereof, I find that the facts of that case and the present case are almost identical. In the said proceedings also two suits came to be filed by the plaintiff. In the earlier suit filed by the plaintiff, the Court did not grant any stay in its favour whereas, in the second case, the plaintiff did not mention and disclose to the Court about the rejection of the prayer for stay in its favour. The facts, therefore, in the present suit are identical and similar to that of the said case. In paragraph 14, the Division Bench of this Court posed a question as to whether it was not obligatory on the part of the respondent to disclose to the court that in an earlier suit filed by it, the Court had not granted any stay in its favour and if on such a disclosure having been made the Court still granted stay in favour of the respondent, it could be said that the respondent had not concealed any material fact from the Court? The Division Bench also referred to the decision of the Supreme Court in S.P. Chengalvaraya Naidu vs. Jagannath (1994) 1 SCC 1, wherein, it was held by the Supreme Court that the Courts of Law are meant for imparting justice between the parties and that one who comes to the Court, must come with clean hands. In the said decision, it was held that it could be said without hesitation that a person whose case is based on falsehood has no right to approach the Court and that he could be summarily thrown out at any stage of the litigation. It was further held thus:-
"A litigant, who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the Court as well as on the opposite party".-13- W.P. No.10873/2019
17. In the said decision it was also held that by withholding the plaint and the application in the earlier suit from the Court and by not disclosing to the Court about the proceedings in the earlier suit and the same having not been granted to it, the plaintiff had tried to get an advantage from the Court and was, therefore, guilty of playing fraud on the Court as well as on the respondent.
18. In fact, it was held by the Division Bench that the respondent had not come to the Court with clean hands and had also suppressed material facts from the Court with a view to gain advantage in the second suit, which amounted to over-reaching the Court and in that view of the matter, the Division Bench directed for dismissal of the suit itself."
11. The Supreme Court in the case reported in 1991 (3) SCC 261, parties being G. Narayanaswamy Reddy (Dead) by LRs. And another vs. Government of Karnataka and another, has observed in paragraph-2 as under :-
"It is well settled in law that the relief under Article 136 of the Constitution is discretionary and a petitioner who approaches this Court for such relief must come with frank and full disclosure of facts. If he fails to do so and suppresses material facts, his application is liable to be dismissed. We accordingly dismiss the special leave petitions."
12. In view of the above, it is also clear that the exercise of power under Article 226 of the Constitution of India by the High Court is also discretionary. It is also obligatory for the petitioner to come before the Court with all disclosure of facts. The facts which were suppressed and not placed before the Court by the petitioner in the present case have direct nexus with the relief claimed by the petitioner in the petition and, therefore, I have no hesitation to say -14- W.P. No.10873/2019 that the petitioner was not a bonafide litigant and has suppressed material information before this Court, therefore, such litigant is not entitled to get any relief from this Court.
13. Accordingly, the petition filed by the petitioner deserves to be and is hereby dismissed. The interim order granted on 24.06.2019 also stands vacated.
(SANJAY DWIVEDI) JUDGE Priya.P Digitally signed by Priyanka Pithawe Date: 2019.08.30 17:52:46 +05'30'