Himachal Pradesh High Court
Tilak Raj And Others vs State Of Himachal Pradesh And Others on 10 March, 2021
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.2156 of 2020.
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Date of decision: 10.03.2021.
Tilak Raj and others .....petitioners.
Versus
State of Himachal Pradesh and others .....Respondents.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 No
For the Petitioners : Mr. Sudhir Thakur, Senior
Advocate with Mr. Karun Negi,
Advocate.
For the Respondents: Mr. Ashok Sharma, Advocate
General with Mr. Vinod Thakur,
Mr. Shiv Pal Manhans,
Additional Advocate Generals,
Mr. J.S.Guleria and Mr.
Bhupinder Thakur, Deputy
Advocate Generals, for
respondents No.1, 2 & 4 to
6/State.
Mr. Maan Singh, Advocate, for
respondent No. 3,
Mr. C.N. Singh, Advocate, for
respondent No. 7.
Tarlok Singh Chauhan, Judge (Oral)
The instant petition has been filed for grant of the following reliefs:
1Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 15/03/2021 20:23:08 :::HCHP 2 "I) Directing respondent No.1 to 6 to issue necessary directions to stop mining operations in .
Kh. No. 1059, Mauza Mand Majhwan, measuring 2-02-62 Sq. meters in any manner.
II) Directing respondent No.1 to 6 to declare annexure P-2 site Appraisal Report dated 16-02-2012 as illegal, void and against public interest.
III) To declare the sanctioned area by government in annexure P-2 as no-mining zone as being very sensitive area.
IV) Directing the respondents to cancel all the mining permits, leases and clearances based upon annexure P-2 issued in favour of Respondent No.7 as illegal and void as given to respondent No.1. V) Directing the respondents to frame specific policy for area in dispute and not to allow mining in this area.
VI) Directing the respondents to take action as per Vigilance Inquiry Report to fix the accountability of the officials who issued No objection certificates and clearances in abject violations of the rule, regulation and mining policy."
2. In the reply filed by respondent No. 7, it was specifically averred that the Unit was non-operational till date and this important aspect has been concealed by the petitioners. Likewise, even the other respondents in their ::: Downloaded on - 15/03/2021 20:23:08 :::HCHP 3 replies/instructions had categorically stated that the Unit of respondent No. 7 is non-operational.
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3. Confronted with this, learned counsel for the petitioners on 07.10.2020 made a statement that it is only after passing of the stay order on 10.07.2020 that the mining activities being carried out by respondent No.7 have been stopped.
4. It was in these circumstances that this Court appointed Shri J.K. Sharma, Chairman, District Legal Services Authority-cum-District Judge, Kangra at Dharamshala, as Commissioner, who in addition to other things, was directed to file a detailed report on the basis of the inspection of the site and records as to whether the Unit of respondent No.7 was ever operational and if so, from what date and time.
5. In compliance to these orders, a detailed report has been submitted by the Local Commissioner, the relevant observations whereof read as under:
"The spot inspection conducted in the presence of the parties and after recording the statements of the parties, as noted above, shows that the Stone Crusher was never in operation. No mining activity seems to have been done in Khasra No. 1059. The ::: Downloaded on - 15/03/2021 20:23:08 :::HCHP 4 land at the spot is in the shape of a flat area. It appears that for establishing the crusher, the owner .
had constructed a ramp, just behind the place, where the machinery was installed, for enabling the trucks to take the material required for crushing stones by machines. The machines had gathered rust and it appears that probably after the trial runs in December, as stated by respondent No. 7, the machine had not run thereafter. This is also evident from the bad shape, in which the machinery was lying at the spot. This statement of the Authorized partner of respondent No.7, Sh. Govind Singh, is also corroborated by the petitioners, who claimed that some Government instructions had come before Covid-19 out break and all the stone crushers had stopped.
During the interaction with the parties, Sh. Tilak Raj had claimed that the stone crusher was operated between October, 2019 and December, 2019, before the operation was stopped, as per the Government instruction and the Covid-19 out-break. But, this assertion is not supported by the electricity bills, which show Nil consumption from January, 2019 to November, 2019 and meagre amount of electricity was consumed in December, 2019. It was also found that the respondent has constructed some rooms for its staff and the electricity was also stated to be used by them. Confronted with this situation, Sh. Tilak Raj, then claimed that the respondent had done the work with the help of Generators. But, for ::: Downloaded on - 15/03/2021 20:23:08 :::HCHP 5 operating the stone crusher, the respondent No.7 had already taken the electricity connection, and .
the spot did not disclose that any generators were ever kept at the site for operating the stone crusher.
It appears that due to the objection of the villagers, the stone crusher could not be put to operation, except, as was seen at the spot, two heaps of Bajri were there, which according to the respondent No.7, was done during the test run only in December, 2019, when the stone crusher was installed. Had the stone crusher been in operation for three months, as claimed by Sh. Tilak Raj, then the heavy trucks would have been plied at the spot and this would have been visible with the tyre marks in the entire area. But, there were no tyre marks in that area, to show that any mining was undertaken in that area or stone crushing was done, which could have been carried away in the heavy trucks. This would have made some deep grooves and made the road uneven by tyre marks. Further, there were bushes grown in and around the stone crusher, which further shows that during the year 2020, no stone crushing activity had been done there.
The other people from the village collected at the spot, had not claimed that any stone crushing activity was done with the help of Generators, but, they were generally objecting the establishment of the stone crusher itself.::: Downloaded on - 15/03/2021 20:23:08 :::HCHP 6
After thoroughly visiting the area and on the strength of the documents , it appears that the stone crushing .
activity was done in the stone crushing, only in the month of December, as stated by respondent No.7's authorized partner Sh. Govind Singh, as prior to that there was no electricity consumption, as per the electricity bills. There was no evidence to show that any heavy Generators were installed at the spot for running the machines. Therefore, there was no truth in the averments of Sh. Tilak Raj etc. that the stone crusher was operated from October, 2019 to December, 2019, by the respondent No.7. But, the visit to this site did not show that any activity was done, as probably, due to the objection of the villagers and the petitioners and litigation, that the stone crusher had not started commercial production."
6. It is, thus, clear from the report (supra) that the petitioners have though sought an equitable remedy of writ under Article 226 of the Constitution of India, but have not come to the Court with clean hands. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a Court of Law, is also a Court of equity. It is, therefore, of utmost necessity that when a party approaches the High Court, he must place all the facts before the Court without any ::: Downloaded on - 15/03/2021 20:23:08 :::HCHP 7 reservation. If there is suppression of material facts on the part on the part of the applicant or twisted facts have been .
placed before the Court, the writ Court may refuse to entertain the petition and dismiss it without entering into the merits of the matter. (Refer: Prestige Lights Ltd. vs. State Bank of India (2007) 8 SCC 449).
7. A writ remedy is an equitable one. A person approaching a superior Court must come with a pair of clean hands.
8. It is well settled law that a Court of Law is a Court of equity and in granting relief under Article 226, the Courts will bear in mind the conduct of the party, who invokes the jurisdiction. This principle emanates from the very nature of the power of interference under Article 226 of the Constitution of India i.e. a discretionary jurisdiction.
Non-disclosure of full facts or suppression of relevant materials or otherwise misleading the Court would disentitle a party to any relief. A person, who approaches the Court for justice, must come with clean hands and not one, who deliberately attempts to deflect the Court from the true path of justice by leading the Court to injustice.
::: Downloaded on - 15/03/2021 20:23:08 :::HCHP 89. As observed above, since writ jurisdiction is a discretionary jurisdiction, a petition is liable to be dismissed .
on the ground that the petitioner has suppressed material facts in his petition. Reference in this regard can conveniently be made to S.J.S. Business Enterprises (P) Ltd. vs. State of Bihar and others (2004) 7 SCC 166, Bhagubhai Dhanabhai Khalasi and another vs. State of Gujarat and others (2007) 4 SCC 241, Arunima Baruah vs. Union of India and others (2007) 6 SCC 120, Prestige Lights Ltd. vs. State Bank of India (2007) 8 SCC 449, Anil Vasudev Salgaonkar vs. Naresh Kushali Shigaonkar (2009) 9 SCC 310.
10. Courts have, over the centuries, frowned upon litigants, who with intent to deceive and mislead the Courts, initiated proceedings without full disclosure of facts. Courts have held that such litigants, who have come with unclean hands are not entitled to be heard on the merits of their case. (Refer: Dalip Singh vs. State of U.P. and others (2010) 2 SCC 114, Amar Singh vs. Union of India and others (2011) 7 SCC 69).
11. In Kishore Samrite vs. State of Uttar Pradesh and others (2013) 2 SCC 398, the Hon'ble ::: Downloaded on - 15/03/2021 20:23:08 :::HCHP 9 Supreme Court in paragraphs 32 to 36 has observed as under:
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"32.The cases of abuse of the process of court and such allied matters have been arising before the Courts consistently. This Court has had many occasions where it dealt with the cases of this kind and it has clearly stated the principles that would govern the obligations of a litigant while approaching the court for redressal of any grievance and the consequences of abuse of the process of court. We may recapitulate and state some of the principles. It is difficult to state such principles exhaustively and with such accuracy that would uniformly apply to a variety of cases. These are:
32.1 Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the Courts, initiated proceedings without full disclosure of facts and came to the courts with 'unclean hands'. Courts have held that such litigants are neither entitled to be heard on the merits of the case nor entitled to any relief.
32.2. The people, who approach the Court for relief on an ex parte statement, are under a contract with the court that they would state the whole case fully and fairly to the court and where the litigant has broken such faith, the discretion of the court cannot be exercised in favour of such a litigant.::: Downloaded on - 15/03/2021 20:23:08 :::HCHP 10
32.3. The obligation to approach the Court with clean hands is an absolute obligation and has repeatedly .
been reiterated by this Court.
32.4. Quests for personal gains have become so intense that those involved in litigation do not hesitate to take shelter of falsehood and misrepresent and suppress facts in the court proceedings. Materialism, opportunism and malicious intent have over-
shadowed the old ethos of litigative values for small gains.
32.5. A litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief, interim or final.
32.6. The Court must ensure that its process is not abused and in order to prevent abuse of the process the court, it would be justified even in insisting on furnishing of security and in cases of serious abuse, the Court would be duty bound to impose heavy costs.
32.7. Wherever a public interest is invoked, the Court must examine the petition carefully to ensure that there is genuine public interest involved. The stream of justice should not be allowed to be polluted by unscrupulous litigants.
32.8. The Court, especially the Supreme Court, has to maintain strictest vigilance over the abuse of the process of court and ordinarily meddlesome bystanders should not be granted "visa". Many societal pollutants create new problems of ::: Downloaded on - 15/03/2021 20:23:08 :::HCHP 11 unredressed grievances and the Court should endure to take cases where the justice of the lis well-justifies .
it. [Refer : Dalip Singh v. State of U.P. & Ors. (2010) 2 SCC 114; Amar Singh v. Union of India & Ors. (2011) 7 SCC 69 and State of Uttaranchal v Balwant Singh Chaufal & Ors. (2010) 3 SCC 402].
33. Access jurisprudence requires Courts to deal with the legitimate litigation whatever be its form but decline to exercise jurisdiction, if such litigation is an abuse of the process of the Court. In P.S.R. Sadhanantham v. Arunachalam & Anr. (1980) 3 SCC 141, the Court held: (SCC p.148, paras 15-16) "15. The crucial significance of access jurisprudence has been best expressed by Cappelletti:
'The right of effective access to justice has emerged with the new social rights. Indeed, it is of paramount importance among these new rights since, clearly, the enjoyment of traditional as well as new social rights presupposes mechanisms for their effective protection. Such protection, moreover, is best assured be a workable remedy within the framework of the judicial system. Effective access to justice can thus be seen as the most basic requirement the most basic 'human-right' of a system which purports to guarantee legal rights.'
16. We are thus satisfied that the bogey of busybodies blackmailing adversaries through frivolous invocation of Article 136 is chimerical. Access to justice to every bona fide seeker is a democratic dimension of remedial jurisprudence even as public interest litigation, class action, pro bono proceedings, are. We cannot ::: Downloaded on - 15/03/2021 20:23:08 :::HCHP 12 dwell in the home of processual obsolescence when our Constitution highlights social justice as a goal. We hold .
that there is no merit in the contentions of the writ petitioner and dismiss the petition."
34. It has been consistently stated by this Court that the entire journey of a Judge is to discern the truth from the pleadings, documents and arguments of the parties, as truth is the basis of the Justice Delivery System.
35. With the passage of time, it has been realised that people used to feel proud to tell the truth in the Courts, irrespective of the consequences but that practice no longer proves true, in all cases. The Court does not sit simply as an umpire in a contest between two parties and declare at the end of the combat as to who has won and who has lost but it has a legal duty of its own, independent of parties, to take active role in the proceedings and reach at the truth, which is the foundation of administration of justice.
Therefore, the truth should become the ideal to inspire the courts to pursue. This can be achieved by statutorily mandating the Courts to become active seekers of truth. To enable the courts to ward off unjustified interference in their working, those who indulge in immoral acts like perjury, prevarication and motivated falsehood, must be appropriately dealt with. The parties must state forthwith sufficient factual details to the extent that it reduces the ability to put forward false and exaggerated claims and a litigant must approach the Court with clean hands. It ::: Downloaded on - 15/03/2021 20:23:08 :::HCHP 13 is the bounden duty of the Court to ensure that dishonesty and any attempt to surpass the legal .
process must be effectively curbed and the Court must ensure that there is no wrongful, unauthorised or unjust gain to anyone as a result of abuse of the process of the Court. One way to curb this tendency is to impose realistic or punitive costs.
36. The party not approaching the Court with clean hands would be liable to be non-suited and such party, who has also succeeded in polluting the stream of justice by making patently false statements, cannot claim relief, especially under Article 136 of the Constitution. While approaching the court, a litigant must state correct facts and come with clean hands. Where such statement of facts is based on some information, the source of such information must also be disclosed. Totally misconceived petition amounts to abuse of the process of the court and such a litigant is not required to be dealt with lightly, as a petition containing misleading and inaccurate statement, if filed, to achieve an ulterior purpose amounts to abuse of the process of the court. A litigant is bound to make "full and true disclosure of facts". (Refer : Tilokchand Motichand & Ors. v. H.B. Munshi & Anr. [1969 (1) SCC 110]; A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam & Anr. [(2012) 6 SCC 430]; Chandra Shashi v. Anil Kumar Verma [(1995) 1 SCC 421]; Abhyudya Sanstha v. Union of India & Ors. [(2011) 6 SCC 145]; State of Madhya Pradesh v. Narmada Bachao Andolan & Anr. [(2011) 7 ::: Downloaded on - 15/03/2021 20:23:08 :::HCHP 14 SCC 639]; Kalyaneshwari v. Union of India & Anr. [(2011) 3 SCC 287)]"
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12. In view of the aforesaid exposition of law, we need not to enter into the merits of the case, as the petitioners have resorted to falsehood. Consequently, the writ petition is dismissed with costs of Rs.50,000/-, out of which Rs.25,000/- be paid to the H.P. High Court Advocates' Welfare Association and Rs.25,000/- be paid to respondent No.7. Pending application(s), if any, also stands disposed of.
13. For compliance, to come up on 19.04.2021.
(Tarlok Singh Chauhan) Judge (Chander Bhusan Barowalia) Judge 10th March, 2021.
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