Patna High Court
Ram Saran Sharma vs The State Of Bihar And Ors. on 30 August, 1957
Equivalent citations: AIR1958PAT181, 1958(6)BLJR591, 1958CRILJ546, AIR 1958 PATNA 181, 1958 BLJR 591
Author: Chief Justice
Bench: Chief Justice
ORDER
1. In this case the petitioner, Ram Saran Sharma, prays for grant of a writ under Article 226 of the Constitution for quashing the order of the Commissioner dated 31st of July, 1956, revoking the sanction for grant of a pistol licence and also the order of the District Magistrate dated 23rd of August, 1956, cancelling the licence.
2. The case of the petitioner is that on 7th July, 1956, the Commissioner sanctioned the grant of a licence, but the sanction was revoked by the Commissioner on 31st of July, 1956, without giving an opportunity to the petitioner to show cause against the revocation. As regards the order of cancellation made by the District Magistrate, the argument on behalf of the petitioner is on similar lines. It is contended that no opportunity was given to the petitioner to show cause against the order of cancellation and the provisions of Section 18 of the Indian Arms Act have not been complied with.
3. In reply, it was argued by the learned Government Advocate that no valid licence was granted to the petitioner in the eye of law. It was pointed out that the licence was actually granted to the petitioner on the 13th of August, 1956, though the sanction had been revoked by the Commissioner 13 days earlier, that is, on the 31st of July, 1956. In our opinion, the argument of the learned Government Advocate is well-founded and the licence dated the 13th of August 1956, that was granted to the petitioner was a nullity in the eye of law because! the previous sanction of the Commissioner was wanting.
As regards the other point, namely, the revocation of the sanction by the Commissioner on the 31st July, 1956, the argument of the petitioner is that no notice was given to the petitioner to show cause and so the principle of natural justice has been violated and the order of revocation dated 31st of July, 1956, is ultra vires. It is necessary at this stage to reproduce the order of the Commissioner, dated 31st July, 1956, which is in the following terms:
''Subject: Copy of Commissioner's order dated 31-7-56 on the application of Sri Ram Sharan Sharma of Mansi Khutia, P.S. Chautham, District Monghyr for grant of a licence for a pistol of non-prohibited bore.
Commissioner's order.
Dated 31-7-56.
Order : My previous orders dated 7-7-56 sanctioning the issue of a license for a pistol of non-prohibited bore valid for Bihar to the applicant Sri Sharma, a copy of which was forwarded to the D. M. Monghyr with this office Memo. No. 7302J, dated 13-7-56 is revoked in view of subsequent report received from the D.M. Monghyr with his letter No. 3044 Res. dated 27-7-56.
Sd/- K. Raman, 31-7-56.
Commissioner, Bhagalpur Division, Bhagalpur".
We do not, however, wish to go into the merits of this argument because we consider that the application must fail upon the ground that there is suppression of material facts by the petitioner and the petitioner is not entitled to the grant of a writ. To put it differently, there is want of uberrima fides on the part of the petitioner, and the grant of a writ being in the nature of a discretionary relief cannot be given in this case.
It was contended by the learned Government Advocate that there was a deception practised by the petitioner. It was pointed out that the licence was taken out by the petitioner on 13th of August, 1956, though 13 days before the Commissioner had revoked his sanction. It was also pointed out that the licence was not actually signed by the District Magistrate but by the Second Officer, and it was stated by the learned Counsel for the opposite party that no order of the District Magistrate was issued granting licence to the petitioner.
It was argued, therefore, that material facts have not been disclosed in the application and that the circumstances suggested that there was deception practised by the petitioner in obtaining the licence on 13th of August, 1956, from the office of the District Magistrate. In our opinion, therefore, the conduct of the petitioner is not above board and there has been suppression of material facts and such conduct disentitles the petitioner from obtaining relief by way of a writ under Article 226 of the Constitution.
The matter has been put very clearly by the English Court of Appeal in King v. General Commrs. for the purposes of the Income-tax Acts for the District of Kensington, 1917-1 KB 486 (A). It was held in that case that the rule of the Court requiring uberrima fides on the part of an applicant for an ex parte injunction applied equally to the case of an application for a rule nisi for a writ of prohibition, and the Court would refuse a writ of prohibition without going into the merits of the case if there is a suppression of material facts by the applicant in the affidavit or the conduct of the petitioner is not honest and candid. At page 505 of the report Lord Cozens-Hardy, Master of the Rolls, has stated that legal position as follows:
"In cases of insurance a party is required not only to state all matters within his knowledge, which he believes to be material to the question of the insurance, but all which in point of fact are so. If he conceals anything that he knows to be material it is a fraud; but, besides that, if he conceals anything that may influence the rate of premium which the underwriter may require, although he does not know that it would have that effect, such concealment entirely vitiates the policy.
So here, if the party applying for a special injunction, abstains, from stating facts which the Court thinks are most material to enable it to form its judgment, he disentitles himself to that relief which he asks the Court to grant. I think, therefore, that the injunction must fall to the ground. That is merely one and perhaps rather a weighty authority in favour of the general proposition which I think has been established, that on an ex parte application uberrima fides is required, and unless, that can be established, if there is anything like deception practised on the Court, the Court ought not to go into the merits of the case, but simply say 'We will not listen to your application because of what you have done".
Lord Scrutton also observed in the same case that an applicant for a writ should make a full and fair disclosure of all the material facts and, if he fails to do that, the Court will refuse to decide the case on merits. At page 514 Lord Justice Scrutton has observed as follows:
"and it has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts
-- facts, not law. He must not misstate the law if he can help it -- the Court is supposed to know the law. But it knows nothing about the facts, and the applicant must" state fully and fairly the facts and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the Court will set aside any action which it has taken on the faith of the imperfect statement. This rule applies in various classes of procedure. One of the commonest cases is an ex parte injunction obtain ed either in the Chancery or the King's Bench Division.
I find in 1849 Wigram V.C. in the case of Castelli v. Cook (1849) 7 Hare, 89 at p. 94 (B) stating the rule in this way: 'A plaintiff applying ex parte comes (as it has been expressed) under a contract with the Court that he will state the whole case fully and fairly to the Court. If he fails to do that, and the Court finds, when the other party applies to dissolve the injunction, that any material fact has been suppressed or not properly brought forward, the plaintiff is told that the Court will not decide on the merits, and that, as he has broken faith with the Court, the injunction must go'.
The same thing is said in the case to which the Master of the Rolls has referred of Dalglish v. Jervis, (1850) 2 Mac and G. 231 (C). A similar point arises in applications made ex parte to serve writs out of the jurisdiction, and I find in the case of Republic of Peru v. Drayfus Brothers and Co. (1887) 55 LT 802 at p. 803 (D), Kay J. stating the law in this way: 'I have always maintained, and I think it most important to maintain most strictly, the rule that, in ex parte applications to this Court, the utmost good faith must be observed. If there is an important misstatement, speaking for myself, I have never hesitated, and never shall hesitate until the rule is altered, to discharge the order at once, so as to impress upon all persons who are suitors in this Court the importance of dealing in good faith with the Court when ex parte applications are made.' A similar statement in a similar class of case is made by Farwell L. J. in the case of The Hegan (1908) P. 189 at p. 201 (E); 'Inasmuch as the application is made ex parte, full and fair disclosure is necessary, as in all ex parte applications, and a failure to make such full and fair disclosure would justify the Court in discharging the order, even although the party might afterwards be in a position to make another application'."
4. Applying this principle to the present case, we hold that the petitioner has, by suppression of material facts in his application and by his conduct, disentitled himself to any relief by way of a writ. We, accordingly, dismiss this application with costs, hearing fee Rs. 50/-.