Jammu & Kashmir High Court - Srinagar Bench
Abdul Gani Bhat vs Muzaffar Ahmad Khan on 6 September, 2023
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP (C) 1120/2022
c/w
OWP 826/2014
Reserved on: 24.07.2023
Date of Decision: 06.9.2023
Abdul Gani Bhat
.........Petitioner
Through: Petitioner present in person
Versus
Muzaffar Ahmad Khan
Through: Mr. M. A. Qadiri, Sr. Adv.
.........Respondent(s)
CORAM:
Hon'ble Mr. Justice Javed Iqbal Wani, Judge
JUDGEMENT
1. The issues involved in the instant petitions are akin and analogous to each other and as such are being disposed of by this common judgment.
OWP 826/2014
2. The petitioner in the instant petition has sought the following reliefs:
"Respondent may be directed to pay damages to the tune of Rs.5 crore to the petitioner for the defamation and injury to the status, position, prestige, honour and reputation of the petitioner.
"The petitioner may be awarded costs."
3. The aforesaid reliefs are being claimed on the premise that the petitioner has to his credit brilliant and unblemished academic and 2 WP (C) 1120/2022 c/w OWP 826/2014 service career after having been appointed in Isalamia College, Srinagar, in the year 1968 as Physical Director/Director Physical Education. The petitioner states to have undergone during his service various training courses connected with his job within and outside the erstwhile State of Jammu and Kashmir.
4. It is being stated by the petitioner that during his working in the College, certain instances of misappropriation of funds committed by the respondent herein along with one Altaf-ur-Rahman were noticed by him resulting into referring of the same to the Commissioner Vigilance Organization, Kashmir, in writing on 1.8.1997 and the consequent registration of FIR No. 66/1997 whereunder the respondent and said Altaf-ur-Rahman upon investigation were found to have committed offences under Prevention of Corruption Act by the investigating officer whereafter the respondent herein drafted and issued a defamatory letter against the petitioner addressed to Commissioner Vigilance Organization besides forwarding copies thereof to Minister, Higher Education, Commissioner Secretary Higher Education and SP Vigilance Organization being his friend maligning in the latter the image and reputation of the petitioner. The said defamatory letter is stated to have been accompanied by two more defamatory documents referring the petitioner as scandalous person having history if not a history sheeter, eccentric shirker, of poor power of judgment, of unreliable conduct, arbitrary style of functioning, of 3 WP (C) 1120/2022 c/w OWP 826/2014 inconsistent behavior, arrogant, incompetent, of garrulous nature and of leech-like sticking to power.
5. The defamatory enclosures in question are stated to have been mentioning the working of the petitioner as highly unsatisfactory and his behaviour towards administration and the staff as disgusting, and the staff of the Islamia College having deplored the role of the petitioner in tarnishing the image of the Islamia College by lodging false complaints to the higher authorities making a request therein to ensure that action is taken against the petitioner for his reported absence from duty and deplorable behaviour being unhealthy for college academics.
6. It is being stated that the said defamatory annexures came to be held as defamatory even by the Investigating Officer who had investigated the complaints against the respondent herein.
7. It is being next stated that the petitioner came to know about the defamatory write-ups in May 2000 whereupon the petitioner filed a complaint against the respondent herein before the Chief Judicial Magistrate in the month of June 2001 which complaint came to be protracted by the respondent herein on one ground on the other including by calling the same in question before this court in a petition being 561A No. 26/2004 wherein more defamatory statements were made by the respondent against the petitioner.
8. It is being last stated by the petitioner that the respondent tarnished the image of the petitioner and caused an injury and damage to his 4 WP (C) 1120/2022 c/w OWP 826/2014 position, status, honour, reputation and prestige and, as such, became liable to pay damages to the petitioner as sought in the instant petition.
9. Per contra, reply has been filed by the respondent herein to the petition wherein a preliminary objection is raised qua the maintainability of the petition and its dismissal is being sought for two-fold reasons: firstly, that none of the rights of the petitioners came to be infringed or violated by the respondent and secondly that the petitioner concealed and suppressed material facts before the court having approached the court with unclean hands.
10. It is being further stated in the objections that the petitioner prior to filing of the petition, filed a defamation case against the respondent herein before the Chief Judicial Magistrate, Srinagar.
11. It is being further stated in the objection that the instant writ petition has been filed by the petitioner against a private person and that, as such, is not maintainable and the petitioner while maintaining the petition under reply, has styled himself to be a Professor when in fact the petitioner had been working as a Physical Training Instructor in the Islamia College.
12. It is being admitted in the objections that the petitioner filed a written complaint in the Vigilance Organization on 1.8.1997 against the respondent herein leveling allegations of corruption against him.
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WP (C) 1120/2022 c/w OWP 826/2014
13. It is being further stated that the petitioner herein while serving in the Islamia College was caught red-handed stealing some documents from his personal file lying in the office of the Islamia College and was found guilty by the disciplinary committee of the College and had also at one point of time during his working illegally designated himself to be as the Director Health, Environment and Physical Education.
14. It is being next stated that the complaint filed by the petitioner against the respondent herein resulted into registration of FIR No. 66/1997 in Vigilance Organization, Kashmir, which, however, came to be closed as not proved in the year 2001.
15. It is being further stated that the respondent herein had an unblemished service career of 37 ½ years as against the service career of the petitioner and that during the service career of the petitioner, he had been placed under suspension on more than three occasions and remained under suspicion as such for about nine years.
16. It is being further stated that the petitioner filed cases against four successive Principals of the Islamia College namely Dr. A. R. Sahaf, Prof. B. K. Kaul, Dr. M. S. Khan, after the respondent herein and lost all the cases. Besides, the petitioner is also stated to have filed a PIL petition against Director SKIMS in which his son was to be the beneficiary and in the said case a fine of Rs. 20,000 was slapped on the petitioner by the court, where after the 6 WP (C) 1120/2022 c/w OWP 826/2014 petitioner filed a petition against Justice N. A. Kakru and consequently came to be burdened with costs of Rs. 1 lakh by the court. It is reiterated that the petitioner filed a criminal complaint for offences under section 500 RPC against the respondent before the Chief Judicial Magistrate, Srinagar and when the said case was fixed for final arguments in May 2013, the petitioner forestalled the proceedings therein by filing a petition under section 561 Cr.PC in this court against the presiding officer of the court.
17. It is being lastly stated in the objections that the petition filed by the petitioner in essence is a suit for the damages pertaining to the law of torts which per se is not maintainable.
WP (C) 11202022
1. In the instant petition the petitioner has sought following relief:
"Hence it is prayed that the respondent may be directed to pay an amount of rupees one hundred crore to the petitioner, as damages for defamation."
2. In this petition as well, the petitioner has sought the aforesaid relief almost on the same and similar facts against the respondent alleging the respondent herein to have written defamatory write- ups and made defamatory statements in the documents tarnishing image, status and reputation of the petitioner, therefore, for the sake of brevity and in order to avoid repetition, the averments of the petition are not referred herein.
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WP (C) 1120/2022 c/w OWP 826/2014
3. Objections have been filed by the respondent herein to the petition wherein it is being reiterated that the petition is not maintainable, in that, none of the rights of the petitioner came to be violated by the respondent and also that the petitioner has concealed material facts and that the relief as being sought in the petition in fact stands already sought by the petitioner in OWP 826/2014. It is further stated in the objections that the petitioner filed a complaint for defamation under section 500 RPC against the respondent herein before the court of Judicial Magistrate which came to be dismissed on 7.2.2022, which fact has been suppressed by the petitioner in the instant petition.
4. It is also being reiterated that a suit for damages has also been filed by the petitioner which is pending before the court of 1st Additional District Judge wherein same set of allegations have been alleged against the respondent which are being alleged in the instant petition.
5. It is further being reiterated in the petition that the petitioner has filed the instant petition against private person and that the relief sought in the petition as such is not available. The rest of the objections are in essence a repetition of the objections filed to OWP 826/2014 supra and, as such, for the sake of brevity and in order to avoid repetition, are not being referred herein. Heard the petitioner and the counsel for respondent and perused the record.
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WP (C) 1120/2022 c/w OWP 826/2014
6. Having regard to the nature of controversy involved in the petitions under consideration, a fundamental question emerges for consideration of this court as to whether the petitions are maintainable and the reliefs claimed therein are capable of being granted to the petitioner.
In regard to the maintainability of the petition, a reference to the judgment of the Apex Court passed in Shalini Shyam Shetty and another vs. Rajendra Shankar Patil reported in (2010) 8 SCC 329 becomes imperative wherein at paras 51 and 57 following has been laid down:
"51. It is well settled that a writ petition is a remedy in public law which may be filed by any person but the main respondent should be either Government, Governmental agencies or a State or instrumentalities of a State within the meaning of Article 12. Private individuals cannot be equated with State or instrumentalities of the State. All the respondents in a writ petition cannot be private parties. But private parties acting in collusion with State can be respondents in a writ petition. Under the phraseology of Article 226, High Court can issue writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform.
"57. Therefore, a private person becomes amenable to writ jurisdiction only if he is connected with a statutory authority or only if he/she discharges any official duty."
A further reference to the judgment of the Apex Court passed in case titled as Nilabati Behera v. State of Orissa reported in (1993) 2 SCC 746 also becomes necessary, being relevant herein, wherein at 34 following has been laid down:
"34. The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary 9 WP (C) 1120/2022 c/w OWP 826/2014 damages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court molds the relief by granting "compensation" in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of exemplary damages' awarded against the wrong doer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and persecute the offender under the penal law."
Reverting back to the case in hand, it is manifest from the record that the petitioner has filed the instant petitions against a private individual, the respondent herein, without indicating that the respondent herein was either acting in collusion with the State or the respondent herein had been connected with a statutory authority while having written the defamatory documents that too in the year 1997-98.
The petitioner while claiming damages from the respondent herein for the alleged defamatory write-ups indisputably are 10 WP (C) 1120/2022 c/w OWP 826/2014 claimed by the petitioner to be a wrong done to him by the respondent herein admittedly not due to the breach of public duty.
7. Perusal of the record shows that admittedly the petitioner for the same set of alleged defamatory write-ups filed initially OWP 826/2014, then a criminal complaint, followed by a civil suit and lastly OWP 1120/2022 concealing the fact that the criminal complaint stands dismissed by the court after being tried. Successive petitions and other proceedings emerging from the record have been filed without any reason and justification. A reference in regard to this factual position to the judgment of the Apex Court passed in case titled as Prestige Lights Ltd. v. State Bank of India, reported in (2007) 8 SCC 449, would be apt, wherein at para 35 following has been laid down:
"It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a Writ Court will indeed bear 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, the Court may dismiss the action without adjudicating the matter. 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."
8. Thus what emerges from above is that the petitioner cannot be said to have a remedy available under the public law against the 11 WP (C) 1120/2022 c/w OWP 826/2014 respondent herein being a private person who is stated to have drawn the alleged defamatory write-ups against the petitioner not in the discharge of his public duty entitling the petitioner to any compensation much less one prayed in the petitions. The petitions thus can safely be said to be not maintainable in the present form. It cannot be overlooked by this court that the petitioner for the same set of alleged defamatory write-ups has filed a civil suit before the court of 1st Additional District Judge as also a complaint for offences under section 500 IPC, which complaint has been dismissed on 7.2.2022 and the petitioner has concealed the said fact of dismissal of the complaint in the writ petition WP(C) 1120/2022 admittedly having been filed on 20.5.2022. The said concealment as well would disentitle the petitioner to any reliefs in the instant petitions even if it is assumed that the petitions are otherwise maintainable.
9. Therefore, what has been observed, considered and analyzed hereinabove, the instant petitions fail and are accordingly dismissed.
(Javed Iqbal Wani) Judge Srinagar 06.09.2023 N Ahmad Whether the order is speaking? Yes Whether approved for reporting? Yes