Punjab-Haryana High Court
Bharat Sanchar Nigam Limited vs State Of Punjab And Others on 6 September, 2011
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
LPA No. 1626 of 2011 (O&M)
Date of Decision: September 6, 2011
Bharat Sanchar Nigam Limited
...Appellant
Versus
State of Punjab and others
...Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE GURDEV SINGH
Present: Mr. Arvind Rajotia, Advocate,
for the appellant.
1. To be referred to the Reporters or not?
2. Whether the Judgment should be reported in the
Digest
M.M. KUMAR, J.
1. The instant appeal by Bharat Sanchar Nigam Limited (BSNL) under Clause 10 of the Letters Patent is directed against judgment dated 18.5.2011 rendered by the learned Single Judge holding that the petitioner-appellant is not entitled to any relief on account of concealment of material facts. The eviction order dated 23.8.2010 (P-6) and its implementation were concealed from the writ courts. The view of the learned Single Judge is discernible from paras 11 and 12 of the judgment, which reads thus:
"11. As is evident from the record that although the LPA was dismissed by virtue of order dated 22.03.2011, much prior to the filing of the instant writ petition, but the petitioner-Company did not disclose the fact of implementation of order (Annexure P-7), taking over possession of the disputed property in pursuance thereof L.P.A. No. 1626 1626 of 2011 (O&M) 2 and dismissal of the LPA and still instituted the present writ petition, again challenging the same impugned eviction order dated 23.08.2010 (Annexure P-6), which was also challenged in Civil Writ Petition No. 15459 of 2010 and the same was disposed of by this Court vide order (Annexure P-7). That means, the petitioner- Company is guilty of concealment of facts, is not entitled to any relief and this writ petition deserves to be dismissed with heavy costs in this context.
12. There is another aspect of the matter, which can be viewed from a different angle. What is not disputed here is that the same impugned eviction order (Annexure P-6) (now sought to be challenged in the present writ petition) has already been merged in the earlier order (Annexure P-7) of this Court. As indicated earlier, the fact of implementation of order (Annexure P-7), taking over the possession of the disputed property by the respondents and dismissal of the LPA were concealed by the petitioner-Company, for the reasons best known to it. Once, the eviction order having been challenged in this Court in earlier Civil Writ Petition No. 15459 of 2010 by the petitioner-Company, which was disposed of vide order (Annexure P-7), then, to my mind, the filing of second writ petition, challenging the same eviction order (Annexure P-6) is a sheer misuse of process of law, is not maintainable and deserves to be dismissed with heavy costs."
2. Accordingly, the writ petition was dismissed with cost of `25,000/-.
L.P.A. No. 1626 1626 of 2011 (O&M) 3
3. Facts in brief are that there is one ancient monument building, which is known as 'Royal Shahi Samadhan', situated at Patiala. On 27.2.2009, it was declared as a protected monument by the Department of Cultural Affairs, Archeology and Museums, Punjab, by issuing a notification (P-1), under the provisions of the Punjab Ancient and Historical Monuments and Archaeological Sites and Remain Act, 1964 (for brevity, 'the Act'). It was found that the petitioner-appellant have established its office and tower on the protected monument area without any prior sanction and permission of the competent authority. The matter was brought before this Court and Hon'ble the Ist Division Bench while entertaining CWP No. 17704 of 1997, issued directions on 4.10.2008 in the following terms:-
"(i) The Archeological Survey of India, Chandigarh Circle, Chandigarh shall send detailed particulars, including the area of the land underneath an ancient/protected monument to the Deputy Commissioner-cum-Collector of the district concerned where such monument is located in the State of Punjab and Haryana within a period of one month, if not sent already;
(ii) The Deputy Commissioner-cum-Collector of the district concerned shall obtain a report from the revenue authorities regarding the encroachment, if any, made over the property of the ancient/protected monument within a period of one month from the date intimation regarding such ancient/protected monument is received from the Archeological Survey of India, Chandigarh Circle, Chandigarh and shall send a copy of the report to L.P.A. No. 1626 1626 of 2011 (O&M) 4 the Archeological Survey of India, Chandigarh Circle,Chandigarh;
(iii) It shall be the duty of the Archeological Survey of India, Chandigarh Circle, Chandigarh and also of the Deputy Commissioner-cum-Collector of the district concerned to get the ancient/protected monument or the property attached thereto retrieved from the encroachers in accordance with law. Wherever such an encroacher has got an injunction order from the civil court, the Archeological Survey of India as well as the Collector shall produce a copy of this order before the civil court to enable it to pass an appropriate order which may not be inconsistent with the directions issued hereinabove. The court concerned shall also be requested for early disposal of the pending suit/appeal, as the case may be;
(iv) the Archeological Survey of India shall ensure that all the ancient or protected monuments are maintained, preserved, repaired or renovated periodically and the duty, if any, cast upon the Collector of a district in this regard under the 1958 Act shall be performed by him with or without any request from the Archeological Survey of India;
(v) After removal of all encroachments from the ancient or protected monuments and/or their repair/renovations, a compliance report along with photographs of each of the said monuments shall be submitted to the Registry of this Court. The entire exercise, however, shall have to be carried out before L.P.A. No. 1626 1626 of 2011 (O&M) 5 30.9.2009, failing which, besides suo moto, any public spirited person shall also be competent to initiate contempt of court proceedings against the erring Collector or the authorities of the Archeological Survey of India, Chandigarh Circle, Chandigarh;
(vi) The Archeological Survey of India, Chandigarh Circle, Chandigarh, with the assistance of the District Administration concerned, shall further ensure that no part of the ancient or protected monument in possession of the encroachers or otherwise is damaged, defaced, altered or impaired, till such encroachments are removed."
4. It is evident from the perusal of clauses (ii) and (iii) that the Deputy Commissioner-cum-Collector after obtaining a report from the revenue authorities regarding any encroachment made out on the property of the ancient/protected monument, was required to send the same to the Archeological Survey of India, Chandigarh Circle. The Archeological Survey of India and the Deputy Commissioner-cum-Collector of the District were obliged to take steps to protect the ancient/protected monument or the property attached thereto. They were also required to retrieve from the encroachers any lease property in accordance with law. As a consequence, the Punjab Government empowered the Deputy Commissioners to remove all the encroachments on declared protected monuments, vide notification dated 24.3.2009. In respect of the property in dispute, the Deputy Commissioner, Patiala, passed an ejectment order dated 25.9.2009 (P-3), which was set aside while decided CWP No. 15333 of 2009, decided on 23.12.2009 (P-4), on a petition filed by the petitioner-appellant. L.P.A. No. 1626 1626 of 2011 (O&M) 6 According to the direction issued by the Division Bench of this Court, permission was granted to the petitioner-appellant to file reply to the show cause notice and then the respondents were permitted to take a final decision in pursuance of the show cause notice as expeditiously as possible after complying with the principles of natural justice (P-4).
5. In pursuance to the aforesaid direction, the petitioner- appellant sent its reply to the show cause notice dated 12.8.2009 on 14.1.2010 (P-5), sent to the General Manager of the petitioner- appellant for removal of the encroachment, which was in the shape of their office and tower. It was alleged that the same was without any authority required to be obtained under Section 30(1) of the Act. Eventually, order dated 23.8.2010 (P-6) has been passed.
6. The aforesaid order dated 23.8.2010 was challenged by the petitioner-appellant in CWP No. 15459 of 2010, decided on 6.9.2010. This Court disposed of the writ petition by directing the Deputy Commissioner-cum-Collector, Patiala to appoint a Revenue Officer not below the rank of Tehsildar to again carry out the measurement in the presence of the officer of the petitioner- appellant and if after re-measurement it was found that the telecom exchange is installed within the notified area of the protected monument then the petitioner-appellant was to remove its exchange forthwith failing which the Deputy Commissioner-cum- Collector, Patiala, was held entitled to take coercive steps in accordance with law (P-7).
7. The direction issued by the learned Single Judge in CWP No. 15459 of 2010, decided on 6.9.2010 (P-7), was challenged before the Letters Patent Bench in LPA No. 1157 of 2010. The Letters Patent Bench, vide order dated 22.3.2011, noted all the L.P.A. No. 1626 1626 of 2011 (O&M) 7 development, which has taken place after issuance of the direction by the learned Single Judge, in the following words:-
" Learned Single Judge hearing the writ petition took the view that one more opportunity should be given to the appellant-writ petitioner to prove that the land under occupation of the telephone exchange does not fall within the notified area. Accordingly the writ petition was disposed of with a direction to the Deputy Commissioner-cum-Collector, Patiala to ensure that a fresh measurement is carried out in the presence of an official of the appellant.
Pursuant to the said order of the learned Single Judge it appears that fresh demarcation/measurement was carried out on 10.9.2010 and 11.11.2010 and as per the said demarcation the office and Tower of the appellant falls within the notified area. This is evident from the reply filed on behalf of the Deputy Commissioner-cum-Collector. From the said reply it also appears that the possession of the disputed premises has already been taken over and the building is in possession of the Department of Cultural Affairs Archaeology & Museums, Patiala.
Learned counsel for the appellant has urged that there are errors in the fresh demarcation/measurement undertaken pursuant to the order of the learned Single Judge and further than even if it is found that the telephone exchange or a part thereof falls within the notified area the appellant would be entitled to compensation under the Archaeological Act, 1964. We L.P.A. No. 1626 1626 of 2011 (O&M) 8 are afraid that we cannot go into the said questions in the present appeal which is directed against the validity of the order of the learned Single Judge ordering a fresh demarcation/measurement. As the said order of the learned Single Judge has been implemented and possession has also been taken over, the questions now agitated would lie beyond the purview of the appeal. Hence we decline to entertain this appeal any further, however, with liberty to the appellant to avail of such remedies as may be open to it in law to ventilate its grievances as stated in the appeal.
LPA is disposed of in the above terms."
8. The learned Single Judge while deciding the writ petition relatable to this appeal has categorically noticed that the petitioner- appellant did not disclose the factum of dismissal of the appeal (LPA No. 1157 of 2010) by the Letters Patent Bench on 22.3.2011 (A-1). The dismissal of the aforesaid appeal was in the knowledge of the petitioner-appellant as the order was passed much earlier to the filing of the writ petition (CWP No. 8786 of 2011) relatable to the instant appeal. It is appropriate to mention that LPA No. 1157 of 2010 was dismissed on 22.3.2011 and CWP No. 8786 of 2011 was filed on 13.5.2011.
9. The suppression of the aforesaid order assumes great significance because the petitioner-appellant failed to reveal that the order dated 23.8.2010 (P-6) stands implemented and they have been deprived of possession. However, they proceeded to institute the writ petition relatable to the instant appeal again challenging the eviction order dated 23.8.2010 (P-6), which was already challenged unsuccessfully in CWP No. 15459 of 2010. The said writ L.P.A. No. 1626 1626 of 2011 (O&M) 9 petition was disposed of vide order dated 6.9.2010 (P-7). Even the order passed in the Letters Patent Appeal was not disclosed.
10. Mr. Arvind Rajotia, learned counsel for the petitioner- appellant has insisted on the hearing of the appeal on merit by putting forward one argument or the other. However, we pointedly asked him why the order dated 6.9.2010 (P-7), passed by the learned Single Judge of this Court and the order dated 22.3.2011 (A-1), passed by the Letters Patent Bench, were not disclosed along with all its contents before the Writ Court. His answer to the aforesaid query has been amazing. Mr. Rajotia submitted that earlier only a part of the order was challenged and the other part of the order dated 23.8.2010 (P-6) was challenged later on. However, the argument has to be regarded as preposterous as the same could not be substantiated. Despite the fact that we have apprised the learned counsel about the findings of concealment of material facts, as recorded by the learned Single Judge, Mr. Rajotia has preferred to make submission and we find that there is no substance in the aforesaid submissions.
11. The Writ Courts are the 'Courts of Equity'. The 'Courts of Equity' are required to be kept absolutely clean. There are well known maxims of equity viz., 'he who seeks equity must do equity' and 'who comes to equity must come to it with clean hands' and the misrepresentation before a Court of equity is fatal. A Full Bench judgment of this Court as early as 1978 rendered in the case of Chiranji Lal v. Financial Commissioner Haryana, Haryana, (1978) 80 PLR 582 (F.B.), (F.B.) dealt with the issue in a case where there was suppression of material facts which if disclosed would have dis-entitled the petitioner therein to the extra ordinary relief under the writ jurisdiction. Hon'ble the Supreme Court in a recent judgment L.P.A. No. 1626 1626 of 2011 (O&M) 10 rendered the case of Ramjas Foundation v. Union of India, JT 2010 (12) SC 134 has made the following observations:
" The principle that a person who does not come to the Court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every Court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have bearing on adjudication of the issue(s) arising in the case. ......"
12. The above noted principle have been repeatedly applied by Hon'ble the Supreme Court in a large number of cases for declining relief to a party whose conduct is blameworthy and who has not approached the Court with clean hands. Some of the cases are - Hari Narain v. Badri Das, Das, AIR 1963 SC 1558; Welcome Hotel v.
A.P.,, (1983) 4 SCC 575; G. Narayanaswamy Reddy v. State of A.P. Karnataka,, (1991) 3 SCC 261; S.P. Chengalvaraya Government of Karnataka Naidu v. Jagannath, Jagannath, (1994) 1 SCC 1; A.V. Papayya Sastry v.
A.P., (2007) 4 SCC 221; Prestige Lights Limited v. SBI, Government of A.P., SBI, (2007) 8 SCC 449; Sunil Poddar v. Union Bank of India, India, (2008) 2 SCC 326; K.D. Sharma v. SAIL, SAIL, (2008) 12 SCC 481; G. Jayashree v.
Patel,, (2009) 3 SCC 141; and Dalip Singh v. State of Bhagwandas S. Patel U.P., U.P., (2010) 2 SCC 114. In the last mentioned judgment, Hon'ble L.P.A. No. 1626 1626 of 2011 (O&M) 11 the Supreme Court lamented on the increase in the number of cases in which the parties have tried to misuse the process of Court by making false and/or misleading statements or by suppressing the relevant facts or by trying to mislead the Court in passing order in their favour and observed:
" For many centuries Indian society cherished two basic values of life i.e. "satya" (truth) and "ahinsa" (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 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, 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, L.P.A. No. 1626 1626 of 2011 (O&M) 12 is not entitled to any relief, interim or final." (emphasis added)
13. When the aforementioned principles of law are applied to the facts of the instant appeal, we find that an effort has been made to pollute the stream of justice by misleading the Court. Accordingly, we hold that the petitioner-appellant is not entitled to any relief which even otherwise would not be available to it and we uphold the view taken by the learned Single Judge.
14. For the reasons stated above, this appeal fails. The order of the learned Singe Judge is upheld and the petitioner- appellant is saddled with the cost of `1,00,000/-. The cost shall be paid to the Department of Cultural Affairs Archaeology and Museums, Punjab. The said amount is required to be spent on protecting and upkeep of the protected monument, namely, 'Royal Shahi Samadhan', situated at Patiala and it would not be utilised for any other purpose. The cost shall be paid within a period of two months failing which appropriate proceedings be undertaken.
(M.M. KUMAR)
JUDGE
(GURDEV SINGH)
SINGH)
September 6, 2011 JUDGE
PKapoor