Gujarat High Court
Patel Kaushikbhai Bhogilal vs Zapli Khadni Dana Nakhwani, Chaklani ... on 4 February, 1995
Equivalent citations: AIR1995GUJ206, AIR 1995 GUJARAT 206
Author: S.K. Keshote
Bench: S.K. Keshote
ORDER S.K. Keshote, J.
1. The Zapli Khadni Dana Nakhwani Chaklani Parabadi Trust (hereinafter referred as the trust) is a registered Charitable Public Trust, registered under the Bombay Public Trust Act, 1950 (hereinafter referred as the Act). The trust is the owner and occupier of land bearing Survey No. 165814, measuring 'A.O. 33gs situated in the sim of town Bawla of Dholkn Taluka, District Ahmedabad.
2. The respondent No. 4 Chorapa Bawalia Patel Panch is an association of persons'.
3. The respondents Nos. 1,2 and 3 are the trustees of the trust. The trustees of the trust have decided to transfer the aforesaid land of the trust on leasehold basis to augment the income of the trust. The respondents Nos. 1 to 3 published an advertisement in daily news paper " SANDESH" to lease out this land on lease for 50 years by public auction. To get a fair and reasonable price the trustees adopted this mode for transfer of land by lease. The auction was held on 29-6-1992, as (per) notice in the advertisement referred above. In this auction many of the bidders, including the petitioner No. 2 and respondent No. 4 in this petition had participated. The bid of the petitioner No. 2 was of Rs. 12001.00 per year, whereas the bid of the respondent No. 4 was of Rs. 1250.00 per year. As the bid of the respondent No. 4 was the highest the same was accepted by the trustees of the trust. The respondents Nos. 1 to 3 applied to the Charity Commissioner under 36 of the Act 1950 for sanction of the lease of the land of the trust in favour of the respondent No. 6. The Charity Commissioner vide its order dated 25-8-1992 accorded necessary sanction to this lease, as required under Section 36 of the Act 1950.
4. The Charity Commissioner in its order dated 25-8-1992 further directed to the respondents that necessary lease deed be executed and be got registered with time period as stipulated in this order. From the record of this case it comes out that the respondents Nos. 1 to 3 have given the possession of the land in question to the respondent No. 4 and the respondent No. 4 has raised construction on the land. The learned counsel for the respondent No. 4, during the course of his arguments made a statement at Bar that a 'Community Hall' has been constructed by the respondent No. 4 on the land in question for public utility. The counsel for the respondent No. 4 has also brought for the perusal of this Court the colour photographs of the construction made by the respondent No. 4 on this land in question. The counsel for the petitioners have hot controverted the statements made by the counsel for the respondent No. 4 at bar before this court referred above. For one or other, reason as the necessary lease deed could not be executed and registered with the period as "ordered by the Charity Commissioner, the respondents Nos. 1 to 3 on 23-2-1993. Moved an application before Charity Commissioner for extension of time to execute lease deed and get it registered. This application of the trust was allowed by the Charity Commissioner under its order dated 3-3-1994 and the period of executing lease deed and registration thereof was extended up to 31-3-1994. Though the petitioners filed this writ petition before this court on 7-3-1994 but the order dated 3-3-1994 of the Charity Commissioner was not challenged therein nor the" copy of this order filed along with the writ petition.
5. This writ petition has come up for admission in the Court on 8-3-1991 and this Court passed orders, Amendment granted, Notice returnable on 17-3-94. Statute 940 as on to day to be maintained till then D.S.
6. In the record of this case I do not find any application for amendment of the writ petition filed on or before 8-3-1994. The amendment as ordered in the order dated 8-3-1994 would have been granted on oral request of the learned counsel for the petitioners.
7. On 10-1-1995 the petitioners filed an application, captioned Proposed Draft Amendment, for amendment of the writ petition copy of the order Dt. 3-3-1994 of the Charity Commissioner is enclosed to this application. By this application the petitioners prayed for amendment of the writ 'petition incorporating therein the grounds to challenge the order dated 3-3-1994 and a prayer for quashing of this order. Amendment to writ petition as sought by the application dated 10-1-95 was permitted by this 'Court on the very date. Copy of order dt. 3-3-1994 also enclosed to this application.
8. On 6-10-93 the petitioner No. 1 submitted an application before the Charity Commissioner and has shown his willingness to have the land in question on lease for 50 years on yearly rent of Rs, 1 lac. In the writ petition the petitioners have not stated how they are related and why they joined together in this petition. It has also not been mentioned by the petitioners in the writ petition how they have common cause of action in the matter.
9. At the very outset of his submissions the learned counsel for the petitioners stated that the petitioners are aggrieved of the order dated 3-3-94 of the Charity Commissioner, under which time till 31-3-1994 has been granted to the respondents Nos. 1 to 3 for execution and registration of the lease deed of the land in question. The learned counsel for the petitioners firstly contended that the Charity Commissioner once it granted sanction to a public trust to lease out its immovable property it becomes functus officio and as such at a later stage it could have no power to vary or modify the order passed earlier. It has next been contended that the Charity Commissioner has no power of review its own order. The review is a creature of statute and unless the statute under which the authority passed order empowers it to the power of review, it has no jurisdiction to review its own order and as such the order dated 3-3-1991 is an order passed without jurisdiction.
10. Learned counsel for the respondent No. 4 on the other hand has raised two preliminary objections regarding the maintainability of this writ petition under articles 226 of the Constitution of India. Firstly it is contended that the petitioners have an alternative remedy of appeal under Sub-section (3) of Section 36 of the Act 1950, It has next been contended that the petitioners have not come up with clean hands before this Court. They have concealed as suppressed the material facts from this Court and obtained a stay order in their favour. This conduct of the petitioner disentitled them from getting any relief from this Court under Article 226 of the Constitution of India. In addition to these two preliminary objections the learned counsel appearing for the respondent No. 4 submitted that this writ petition suffers from the defect of misjoinder of causes of action and parties. Making his submissions further the learned counsel argued that the petitioners filed this writ petition with oblique motives. When the petitioner No. 2 failed to get the land in question the open auction he has brought on Scene the petitioner No. 1 and he got an application filed by him giving offer therein of Rs. 1 lac per year of rent of the land in question. The offer given by the petitioner No. 1 after more than one year and 4 months from the date of auction of the land is not bona fide. Controverting the contentions made by the counsel appearing for the petitioners, it is submitted that it is not the case of review of the order dt. 25-8-1982. It is only a case where time for execution and registration of the lease deed has been extended by the Charity Commissioner. The basic order is order passed by the Charity Commissioner dt. 25-8-1992 which is not under challenge. The petitioners indirectly want to challenge the order dt. 25-8-1992 which they cannot be permitted to do.
11. The learned counsel appearing for the respondents Nos. 11.3 supporting the arguments made by the learned counsel for the respondent No. 4, contended that admittedly the petitioner No. 2 is the Secretary of the trust and as such he cannot challenge the action of the trustees. Being the Secretary of the trust he is bound by the order of the Charity Commissioner dated 3-3-1994 passed oil the application of the Trustees. Even if the petitioner No. 2 have some his personal differences with the trustees of the trust these proceedings are not the proper remedy to resolve the differences. The petitioners have abused the process of this Court by filing this writ petition. Lastly it is contended that the respondents have been dragged in litigations by the petitioners unnecessarily and unjustly and as such exemplary costs may be awarded to them.
12. The counsel for the respondent No. 5 Charity Commissioner, adopted the submissions made by the learned counsel for tche respondents Nos. 1 to 4. An additional submission has been advanced by the learned counsel for the respondent No. 5 that the Charity Commissioner has accorded sanction to lease out the land in question accepting it to be in the interest and for the benefit of the trust and the petitioner No. 2 has no locus standi to question the validity of the same. It has further been contended that the petitioners have not come up with the case that the lease of land is not for the benefit and in the interest of the Trust. The petitioners themselves wanted to take the land on lease and as such they cannot be said to be aggrieved persons of the order of the Charity Commissioner dated 25-8-1993. It has last been argued that the order dated 25-8-1993 of the Charity Commissioner attained the finality as the petitioners have not filed any appeals against this order which was though appealable.
13. I have given my thoughtful consideration to the submissions made at Bar.
14. Section 36 of the Bombay Public Trust Act, 1950 reads as follows :--
Section 36 application of immovable property of Public Trust.
(1) Notwithstanding anything contained in the instrument of trust.
(a) no sale, mortgage, exchange or gift of any immovable property, and
(b) no lease for a period exceeding ten years in the case of agricultural land or for a period exceeding three years in the case of non-agricultural land or a building, belonging to a public trust, shall be valid without the previous sanction of the Charity Commissioner.
(2) The decision of the Charity Commissioner under sub section (I) shall be communicated to the trustees and shall be published in such manner as may be prescribed;
(3) Any person aggrieved by such decision may appeal to the Gujrat Revenue Tribunal within thirty days from the date of its publication.
(4) Such decision shall, subject to the pro visions of Sub-section (3) be final.
under Sub-section (3) of Section 36 of the Act 1950 the order of the Charity Commissioner passed under Sub-section (1) is appealable. The Charily Commissioner accorded sanction to lease of land of the trust to the respondent No. 4 vide order dated 25-8-1992. The order dated 25-8-1992 is an order which has been passed by the Charity Commissioner under Sub-section (1) of Section 36 of the Act, 1950. Admittedly the petitioners have not filed any appeal against the order dated 25-8-1992. They have not filed appeal obviously for the reason that they have not felt themselves to be aggrieved of the order dated 25-8-1992. From the prayers which have been made in original writ petition as well as in amended writ petition it is clear that even this order has not been challenged by them in this writ petition also. The petitioners themselves we retire intending to purchase lease hold rights in the land of the trust in question and as such they could not make any objection against the sanction to be given to the lease of the land in question. One more other difficulty was there in the way of the petitioners in this case to challenge or object sanction of lease in favour of the respondent No. 4 by the Charity Commissioner. The petitioner No. 2 being the secretary of the trust lesson could not have raised any objections against the application filed by the trustees of the trust under Section 36 of the Act, 1950. Secondly the petitioner No. 2 himself was one of the bidder and his bid was less than the bid of the respondent No. 4 and as such he could not have any legitimate objection against the sanction of lease of laud in favour of the respondent No. 4.
15. Next question which falls for consideration is that under which provision the order dated 3-3-1994 has been passed by the Charity Commissioner. It is not the case of the petitioners that under the order dated 3-3-1994 any sanction for lease of the land has been given. What exactly under the order dated 3-3-1994 has been done by the Charity Commissioner is matter to be referred here in. Sanction of lease of the land was accorded by the Charity Commissioner under its order dated 25-8-1992 though a time-limit has been fixed for execution and registration of the document i.e. lease-deed could not be executed and registered within the time as granted by the Charity Commissioner. On the application of the respondents Nos. I to 3 the Charity Commissioner vide its order dated 3-3-94 has granted/extended time for execution and registration of the lease deed. Leaving apart the question whether Charity Commissioner became functus officio as well as it has no power to review its own order, it is clear that the order dated 3-3-94 does not fall within four corners of the provisions of Section 36 of the Act 1950. It is not the order of sanction of lease. It is only an order to extend the time limit as origionally fixed for execution of the lease and its registration. In view of these facts and circumstances the preliminary objection raised by the learned counsel for the respondents regarding availability of alternative remedy is devoid of any force.
16. It is well settled that the petitioner is not entitled as a matter of course to writ of certiorari, and mandamus. Even if court finds some merits in the case of the petitioner it may decline to interfere in the matter under article 226 of the Constitution of India where it feels that there is no failure of justice in the case. Reference in this respect may have to two decision of the appex Court reported in AIR 1957 SC 227 and AIR 1960 SC 407 and the decision of this Court in the case of Union of India v. Manubhai reported 1995 (1) G.L.T. 85. Present is the case where the petitioner No. 2 has participated in auction but this bid was less than that of the respondent No. 4 and petitioner No. 1 has no interest in the matter as he has not participated in the open auction.
17. In this case the petitioner No. (1) has appeared or come on scene much after auction of lease hold rights in the land and sanction of the same by the Charity Commissioner. I find considerable merits in the contention of the learned counsel for the respondent No. 4 that the petitioners filed this writ petition with oblique motive and that the petitioner No. 1 has been brought on scene by the petitioner No. 2.
18. I must observe that proceedings under Article 226 of the Constitution, which are initiated for attracting the extraordinary jurisdiction of this Court, it is utmost important that the petitioners should come forward with clean hands. This court cannot encourage the idea that a person is entitled to adopt dubious or dishonest or fraudulent means and make false averments while submitting a writ petition in this court and further when his falsehood is exposed by the other side putting the correct facts before the Court it would not be proper to allow the petitioner to make his submissions on the merits of the case. It would be laying down a very dangerous principle in the conduct of human affairs if Court's of law are allowed to be flooded with petitions based on false averments. This Court can help in its extraordinary jurisdiction only those persons who approach this Court with clean hands, and if in a given case: the court finds that the conduct of the petitioner has not been honest and free from deceit the court may decline to give any relief to the petitioner. A person who adopts dubious means must suffer the consequences of his conduct.
19. In this writ petition the petitioners obtained ex parte stay order as well as order of issue of notice by not making true and candid disclosure of material facts. The petitioners disentitle themselves of any relief on merits in this case.
20. The law is well settled that the petitioners are not entitled as a matter of course to a writ of certiorari, and mandamus and they must be perfectly frank and open to the Court. They are under obligations to the Court to make full and correct disclosure of all the material facts in a candid manner and if they do not do so and suppressed any material fact and thereby obtained a rule nisi or notice or stay order the Court will not grant any relief to them on merits. In Asiaitic Engineering Co. v. Actihru Ram, reported in AIR 1951 All 746: 1951 All LJ 576 (FB) the Full Bench of the Allahabad High Court while dealing with the obtaining of an ad interim ex parte stay order by suppressing the facts has held that a person obtaining an ex parte order or a rule nisi by means of a petition for exercise of the extra-ordinary powers under Article 226 of the Constitution must come with clean hands, must not suppress any relevant fact from the court, must refrain from making misleading statements and from giving in correct information to the Court. Court should insist that person invoking the extraordinary jurisdiction of the High Court should not attempt in any manner to misuse a valuable right by obtaining ex parte orders by suppression, misrepresentation, or misstatement of facts. It has further been said in this case that if the facts are, stated in such a way as to mislead and deceive the Court, there is a power inherent in the court, in order to protect itself and to prevent an obsise of its process, to discharge the interim abuse and to refuse to proceed further with the examination of the merits of the application. In K. K. Anathan Fillai v. The State of Kerala, reported in AIR 1968 Ker 234 : 1968 Lab IC 1059 (FB), it has been laid down that a petitioner resorting to suppressio veri and suggessio falsi obtains ex parte stay order should not be given any relief in a writ petition under Article 226 of the Constitution. It has been said in this case that the petitioner's conduct is a relevant factor in the matter of invoking an extraordinary jurisdiction. It has further been held that whatever sympathy one might feel on the merits, where the petitioner, is guilty of suppressio veri and suggessio falsi hedisentitled himself to invoke extraordinary jurisdiction of this Court. In Nand Lal v. State of Jammu and Kashmir, reported in AIR 1960 J & K 19, it has been held that where the petitioners under Article 226 of Constitution have not stated the relevant facts correctly and candidly either in their petition or in the affidavit in support of their petition, this is by itself sufficient to entail an out right dismissal of the writ petition without going into its merits. It has further been held in this case that even if the petitions have a good case on merits the court will be entitled to decline to go into the merits and dismiss their petition because the conduct of the petitioners has been such as to mislead the court in ex parte interim order. In this case of the leading authority of Rex v. Kensinghton Income-tax Commissioner, 1917 (1) KB 486 : 86 LJKB 257 has been referred and relevant extract from the observations of Cozens Hardy M.R. quoted as follows:-
On an ex parte application aberrima 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."
In that very case Lord Scrution LJ put the matter very clearly by saying as under:
"It has been for many years the rule of the Court and one which it is of the greatest importance to maintain, that when any 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 not law...... 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 which it has taken on the faith of the imperfect statement".
In this case although the court had found that the commissioner had no jurisdiction to make the assessment yet it said;
"We refuse the writ of prohibition without going into the merits of the case on the ground of the conduct of the applicant in bringing the case before us."
This authority has also been followed by the full Bench of Allahabad High Court in the case of Asiatic Engineering Company, (supra) Lord Haterlay in R. v. Church Wardens of All Saints Wrgan, 1876(1) AC-611, has stated:-
"Upon a prerogative writ there may arise many matters of discretion which may induce the judges to withhold the grant of matters connected with delay or possibly with the conduct of the parties".
Reference may also have to the case of Reg v. Gerland, (1870) 39 LJQB 56: LR 5 QB 269, in which it was held;
"Where a process is ex debite justicia the court would refuse to exercise its discretion in favour of the applicant where the application is found to be wanting in bona fide."
Further reference may also have to the following cases wherein to the same effect is the dictum laid down:--
M/s. Haji Mohammed Ismail Sahib and Company v. Dy. Commercial Tax Officer, AIR 1970 Madras 422 (FB); Abdul Gafoor v. State of M. P., AIR 1965 MP 29; G. Appuk-kuttam Pillia v. Govt. of India, AIR 1970 Ker 110.
21. In the case of T. Subramania Chettiar v. District Supply Officer, reported in AIR 1995 Madras 54 the Court held :--
"Any way, it is clear that the petitioners have suppressed in the supporting affidavit this particular fact, namely that the payment of renewal fee and the application for registration certificate were out of time. In all fairness, the petitioners in their supporting affidavit should have mention about this material fact, but deliberately have suppressed the above said material fact on this ground also, this writ petition is liable to be dismissed."
Again the Madras High Court in the case of Kamashi v. A. Radhakrishnan, reported in AIR 1995 Madras 60 observed as follows :--
"When the extraodinary jurisdiction of this Court under Article 226 of the Constitution of India is invoked the person who does so must take the court into confidence and place all the facts before it without any reservation. If the court finds that the petitioner has not stated the full trust in the relevant matters, it shall refuse to exercise its discretion in favour of the petitioner".
22. The Appex Court in the case of Ramjas Foundation v. Union of India, 1993 Supp (2) SCC 20, in para No. 7 observed;
"It is well settled that a person invoking an equitable extraordinary jurisdiction of the court under Article 226 of the Constitution is required to come with clean hands and should not conceal material facts. The objection regarding not affording an opportunity of personal hearing in respect of objections filed under Section 5A of the Act was one of the main planks of the grounds raised in the writ petition as well as in the special leave petition filed before this Court and ought we know if such ground had not been taken this Court would have entertained this appeal or not".
23. In the light of the law enunciated above I have now to see whether the petitioners have come to this Court with upright and bona fide conduct and have given full and correct disclosure of material facts.
Affidavit in reply has been filed in this case on behalf of the respondent No. 5 and the petitioners have not filed any rejoinder affidavit controverting the facts stated therein. The petitioners deliberately concealed the facts;
(i) auction notice i.e. date, time and place of auction of lease hold rights in the land in question published in Newspapers "Sandesh" dated 22-5-92.
(ii) Public auction was accordingly held on 29-5-1992, wherein including the petitioner No. 2 many bidders participated.
(iii) In public auction the petitioner No. 2 had offered annual rent of Rs. 12001.00, less than the higest bid.
(iv) possession of the land in question was given to respondent No. 4.
(v) the respondent No. 4 put up construction on the land in dispute.
(vi) the petitioner No. 1 had not participated in the auction of the land.
(vii) the petitioner No. 1 has not disclosed why and how he joined the petitioner No. 2 in this petition.
(viii) the petitioners have not stated how they are related.
24. The petitioners have not come up before this Court with clean hands. The Charity Commissioner sanction lease in favour of the respondent No. 4 vide order dated 25-5-1992 and the petitioners have not challenged that order either before Charity Commissioner or before this Court. The petitioners permitted or allowed the respondent No. 4 to proceed with construction on the land in question. The petitioner No. 1 has given offer of Rs. 1 lac annual rent by an application dated 6-10-1993 i.e. more than one year of the order dated 25-8-1992 and one year and about 5 months after auction of lease hold rights. The petitioner No. 2 has cancelled another fact the date of his joining as the secretary of the trust. The petitioners have made a false statement that the petitioner No. 2 came to know about the order dated 25-8-92 after he joined the trust as Secretary. The petitioner No. 2, as stated earlier was one of the bidder in the auction. He knows about all aspect from the date of auction. From the facts which are on record of this case I am satisfied that the petitioners have not made full and correct disclosure of all material facts in this case. They on the contrary suppressed material facts and thereby obtained an order of issue of notice as well as ex parte interim stay. The petitioner disentitle themselves of any relief on merits. Present is clearly a case where the petitioners have abused the process of this Court. The petitioners have not approached to this Court with clean hands. In these facts and circumstances of the present case, an exemplary cost has to be awarded to the respondent No. 4.
25. In the result, this writ petition fails and same is dismissed with costs of Rs. 5000/- to the respondent No. 4.
26. Notice is discharged. Ad interim relief granted on 8-3-1994 stands automatically vacated.