Madras High Court
Rajeswari Nagar Residents Welfare ... vs The Madras Metropolitan Development ... on 9 November, 1988
Equivalent citations: (1988)2MLJ447
ORDER Srinivasan, J.
1. This writ petition is for issue of mandamus forbearing the respondents from using the school and play ground specified in Rajeswari Nagar lay out in Survey No. 38 of Karambakkam village, Chengalpattu District for purposes other than for children and recreational activities of individuals.
2. According to the affidavit of the Secretary of the petitioner-Association, filed in support of the petition, the members of the Association purchased house sites in Survey No. 38, Karambakkam village and constructed houses thereon. The lay out for Rajeswari Nagar was approved by the Director of Town Planning in his L.P.D.M./ D.D.T.P.No. 57/72. Some space was reserved in the lay out for the purpose of running a school and for play ground. It is alleged that in 1980, a small building was constructed by the Panchayat and the authorities concerned assured the residents of the locality that the space would not be used for any purpose other than school and play ground. It is expressly stated that the petitioner has no objection for the building on the land being used as Balwadi (children centre). It is further alleged in the affidavit that the Panchayat Board is holding its meetings in the building on the land and it is contrary to the purpose for which the land was reserved in the lay out. On the ground that the Panchayat is using the space for a different purpose, other than a school for which it was reserved, the petitioner has filed the writ petition for the relief already set out.
3. In the counter-affidavit filed by the first respondent, namely, Madras Metropolitan Development Authority, it is stated that the land cannot be used for any purpose other than the one which was indicated in the lay out plan. According to the said counter affidavit, the Panchayat has not obtained the sanction from the Madras Metropolitan Development Authority and therefore, not entitled to use the place for any other purpose.
4. The third respondent, namely, Commissioner, Villivakkam Panchayat Union, has filed a counter affidavit. In the counter affidavit, he has referred to the suit O.S.No. 328 of 1984 on the file of the District Munciff's Court, Poonamallee, filed by the Secretary of the Association. He has further stated in the counter that an application was filed in the suit in I.A.No. 312 of 1984 seeking an injunction restraining the Panchayat from constructing on and using the play ground. As there was no interim order in that application, the present writ petition has been filed by the petitioner. It is stated that the writ petition is not maintainable, as the petitioner has suppressed the factum of filing the suit. It is further averred in the counter affidavit that the Panchayat is in possession of the land and had constructed the Panchayat's office in 1980. It is stated that the office of the Panchayat is functioning in the building from 23-10-1981. it is stated further in the counter affidavit that the user of the building for the office of the Panchayat is not different from the use for which the land was reserved in the master plan approved by the M.M.D.A. in 1975. Reference is also made to the withdrawal of the suit on a date later to the filing of the writ petition, with liberty to file a fresh suit on the same cause of action.
5. Learned Counsel for the petitioner places reliance on the Tamil Nadu Panchayats Buildings Rules, 1970. Under Rule 3, when an application for approval of lay out of house sites is made, the owner of the land shall submit a letter of consent regarding the land required for streets, lanes and pathway in favour of the Executive Authority authorising him for making the said streets, lanes and pathways. Rule 18 provides for common amenities. Under Clause 4, facilities such as shops, recreation centre, community hall and library shall be provided in accordance with the Development Fund Rules on the following standards, namely, for every 100 persons, there shall be at least one shop and for every 1000 persons, there shall be a primary school, a community hall, a library and a recreation centre. According to learned Counsel for the petitioner, the provision for a children centre and play ground was made in the lay out in accordance with the above said rules. Learned Counsel submits that the Panchayat is not entitled to utilise the space allotted for school and play ground, since it was a different purpose.
6. On the other hand, learned Counsel for the panchayat contends that the writ petition should be dismissed on the ground of suppression of relevant facts. It is further argued that under Sections 47 and 49 of the Town and Country Planning Act, 1971, it is not necessary for the State or the Central Government or Local Authority to obtain sanction from M.M.D.A. for utilising the land for a different purpose. He submits that the Panchayat was put in possession by the petitioner association even in 1971 and the land has been used for the purposes of the Panchayat since then. It is argued that the building was constructed in 1980 and the writ petition was filed only in 1986. According to learned Counsel, a portion of the building is used for the office of the Panchayat and another portion for the purposes of children of the locality as Balwadi. According to earned counsel, the property had vested in the Panchayat and the prayer made in the writ petition cannot be granted to the petitioner.
7. A prima facie reading of Sections 47 and 49 of the Town and Country Planning Act, 1971, shows that there is considerable force in the argument of learned Counsel for the Panchayat. However, I do not propose to go into the merits of the case, as the writ petition deserves to be dismissed on a very short ground. As pointed out in the counter affidavit of the third respondent, it is now admitted that a suit was filed earlier by Sri R. Krishnamurthy, Secretary of the petitioner association. A copy of the plaint is produced before me by learned Counsel for the third respondent. Learned Counsel for the petitioner submitted that the suit was filed by Sri Krishnamurthy is his individual capacity and the present writ petition is filed by the Association as such. The contention is negatived by the contents of the plaint in the suit. Though the name of the plaintiff is given as 'R. Krishnamurthy', as if he is an individual, the description in the plaint is that he is the Secretary of the Rajeswari Nagar Residents' Welfare Association. In Paragraph 3 of the plaint, it is stated that the plaintiff is a registered Welfare Society of the resident of nearly 96 plots and house owners. There can be no doubt that the plaint was filed by the Association through its secretary R. Krishnamurthy. In spite of the same, Sri Krishnamurthy has filed the affidavit in support of the writ petition without making any reference whatever to the suit filed earlier. The suit was admittedly pending on the date of the writ petition. No doubt, a petition for withdrawal of the suit is said to have been filed later and the suit was actually withdrawn with liberty to file a fresh suit on the same cause of action.
8. It is a matter of concern that there is a growing tendency among litigants to invoke the jurisdiction of this Court under Article 226 of the Constitution of India on the basis of affidavits with incorrect and untrue particulars. Recently, this Court had occasion to comment upon the callous manner in which affidavits are filed not only with out disclosing relevant facts but also making false averments. Suppressio veri and suggestio falsi is becoming the order of the day. It is high time that the Courts should take up the cudgel to fight the evil and ruthlessly dismiss such writ petitions as are supported by false affidavits.
9. It is clear from the language of Article 226 of the Constitution of India that there is no inexplorable command addressed to the Court to issue a writ whenever an infringement of a right is established. The exercise of jurisdiction under the Article is purely discretionery and seldom can any person ask for it as of right, no party can claim an order under Article 226 of the Constitution of India as a matter of course. The Court is not bound to grant relief even if the petitioner makes out a case in his favour. The Court will abstain from interfering if the conduct of the petitioner is not above board. The person who invokes the extra ordinary jurisdiction of the Court should be candid in his affidavit and make a full and fair disclosure of all the relevant facts. If the Court finds that there is a deliberate suppression of such facts, it ought to refuse to consider the merits of the case and reject the petition. Such a course is necessary for the Court to protect itself against abuse of its process and to preserve the purity of administration of justice. The extra ordinary powers of the court will not be exercised in favour of a person who approaches it with unclean hands. It is the duty of the Court go guard zealously the stream of justice and to see that it is not sullied by unscrupulous persons.
10. In the present case, the petitioner had filed a civil suit for the same remedy and applied for an interlocutory order. Not being able to secure the same, the petitioner has rushed to this Court and without making any reference to the civil suit, got the rule nisi issued. There is no explanation on the part of the petitioner as to why the pendency of the suit was not mentioned in the affidavit filed in support of the writ petition. Nor is there any explanation in the affidavit as to how the third respondent Panchayat got possession of the land in question. The petitioner having been guilty of deliberate suppression of relevant facts, is not entitled to any relief in the writ petition.
11. Hence, the writ petition is dismissed. The petitioner has withdrawn the suit O.S. No. 325 of 1984 with liberty to file a fresh suit on the same cause of action. If so advised, the petitioner may file a suit, but should disclose all the facts to the Court before seeking a remedy. There will be no order as to costs.