Calcutta High Court (Appellete Side)
Madhusudan Ghosh vs The State Of West Bengal & Ors on 3 August, 2016
Author: Biswanath Somadder
Bench: Biswanath Somadder
1
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Biswanath Somadder
W. P. 5296 (W) of 2016
Madhusudan Ghosh
Vs.
The State of West Bengal & Ors.
For the petitioner: Mr. Susanta Kumar Rakshit
For the State : Mr. Samrat Sen, A.G.P.,
Mr. Amitava Mitra
Heard on : 03.8.2016.
Judgment on : 03.8.2016.
Biswanath Somadder, J.
The subject-matter of challenge in the instant writ proceeding is in respect of non-grant of long term mining lease in favour of the petitioner by the District Land and Land Reforms Officer, Burdwan.
It transpires from the pleadings that an application for grant of long term mining lease was made by the petitioner sometime in December, 2005. The petitioner has stated in his pleadings that since the proposed lease was in respect of a plot which was a "very big one", the Additional District Magistrate and District Land and Land Reforms Officer, Burdwan, issued notice to all applicants (including the writ petitioner) who had applied for such long term mining lease. Such notice was issued on 8th July, 2011, directing the applicants to appear for hearing on 1st August, 2011. It has also been stated by the petitioner in paragraph 7 of his application that he alongwith other applicants were present at the time of hearing before the Additional District Magistrate and District Land and Land Reforms Officer, Burdwan. The petitioner has further stated 2 in paragraph 8 of the application that the Deputy Secretary, Government of West Bengal, had been pleased to grant long term lease in favour of the petitioner, in terms of an order contained under memo dated 2nd January, 2007. Essentially, challenging inaction on the part of the concerned respondent authority for non-execution of the long-term mining lease in favour of the petitioner on the basis of the order dated 2nd January, 2007, the petitioner has filed the instant writ petition.
A report in the form of an affidavit was called for, which has since been filed on behalf of the District Magistrate and District Land and Land Reforms Officer, Burdwan. The report reveals certain startling facts. It reveals that upon culmination of hearing which took place on 1st August, 2011, an order dated 17th June, 2013, was issued by the District Magistrate and District Land and Land Reforms Officer, Burdwan. By the said order, the petitioner's prayer for execution of his lease deed on the basis of the grant order issued by the concerned Deputy Secretary, vide his memo dated 2nd January, 2007, stood rejected upon revocation of the said grant. The order dated 17th June, 2013, had been forwarded to the petitioner although he has not adverted to the same, anywhere in his pleadings. Not only that, the petitioner has totally suppressed the fact that upon receipt of the said order dated 17th June, 2013, issued by the District Magistrate and District Land and Land Reforms Officer, Burdwan, he had preferred a review application invoking Rule 37 of the West Bengal Minor and Mineral Rules, 2002, on 3rd July, 2013, a copy whereof has been annexed to the report in the form of affidavit filed on behalf of the concerned State respondent.
It is palpably evident from the above discussion that the petitioner suppressed material facts. Even while suppressing material facts, he chose to make an averment in paragraph 15 of his application, which reads as follows: -
"Your petitioner states that this application is made bonafide and made for the end of justice."
This Court in Tirthankar Ghosh vs. The Superintendent (SIV), Service Tax - II Kolkata & Ors., reported in (2016) 2 WBLR (Cal) 472, has made following observation: -
"A person who approaches this Court invoking its high prerogative Constitutional writ jurisdiction under Article 226 of the Constitution of India, essentially seeks relief which is discretionary in nature. For such discretionary relief to be 3 granted, the petitioner has to demonstrate unimpeachable bona fides. This is precisely why a writ petitioner requires to make in his/her petition a specific averment to the effect that the application is made bona fide and for the ends of justice."
There cannot be any manner of doubt whatsoever that in the facts of the instant case, the writ petition was not made bona fide. The reason is, if a person seeks to invoke this Court's high prerogative Constitutional writ jurisdiction under Article 226 of the Constitution of India - which is essentially a discretionary jurisdiction - he has to approach the Court with clean hands and with utter honesty and transparency, which will manifest itself from the pleadings itself wherein only material facts are required to be stated. The Supreme Court in at least three judgments has categorically observed to the effect that the jurisdiction of the High Court under Article 226 of the Constitution of India is extraordinary, equitable and discretionary and it is imperative that a person while approaching the writ Court must come with clean hands and put forward all the relevant material facts before the Court without concealing or suppressing anything and only then seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his/her petition may be dismissed at the threshold without considering the merits of the claim.
In this context, one may take notice of the judgments rendered by the Supreme Court in Prestige Lights Ltd. vs. State of India, reported in (2007) 8 SCC 449; K.D. Sharma vs. Steel Authority of India Limited, reported in (2008) 12 SCC 481 and Dalip Singh vs. State of Uttar Pradesh and others, reported in (2010) 2 SCC
114. As it is palpably evident that the petitioner has suppressed material facts, his bona fides immediately become suspect. Discretionary relief under Article 226 of the Constitution of India is not available to a person such as the writ petitioner. However, should the writ Court stop at that? The answer is a clear and unequivocal, no. The ratio of the judgments of the Supreme Court - referred hereinbefore - goes even a step further. While following the ratio of the decision rendered by the King's Bench in R. v. Kensington Income Tax Commissioners, reported in (1917) 1 KB 486 (CA), it has been observed to the effect that a writ petitioner who does not come with candid facts and "clean breast" cannot hold a writ of the Court with "soiled hands". Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the writ petitioner does 4 not disclose all material facts fairly and truly, but states them in a distorted manner and misleads the Court, the Court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the Rule NISI and refuse to proceed further with the examination of the case on merits. If the Court does not reject the petition on that ground, the Court would be failing in its duty. In fact, such a writ petitioner requires to be dealt with for contempt of Court for abusing the process of the Court.
Based on the above observations - culled out from the ratio of the three judgments of the Supreme Court
- and applying them in the facts of the instant case, this Court is of the view that not only the bona fides of the writ petitioner are suspect - having suppressed material facts - by such action, he has also abused the process of Court by seeking to invoke the high prerogative jurisdiction of this Court under Article 226 of the Constitution of India, which is essentially discretionary in nature.
The writ petition is, therefore, liable to be dismissed with costs assessed at 50 G. Ms. to be deposited with the High Court Legal Services Committee, Calcutta, within a week from date and is accordingly dismissed.
List this matter a fortnight hence, only for the purpose of ensuring compliance of the order of payment of costs.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.
(Biswanath Somadder, J.) ap