THE HON'BLE SRI JUSTICE A.RAMALINGESWARA RAO WRIT PETITION No.22645 of 2015 10-08-2015 P.Parameshwar Reddy. Petitioner The State of Telangana, Rep.by its Principal Secretary, Irrigation Department, Secretariat Buildings,Hyderabad, And others.Respondents Counsel for petitioner: Sri P.R.Balarami Reddy Counsel for the Respondents : GP for Irrigation ?.CITATIONS:
1. (2012) 5 SCC3702.(2010) 11 SCC5573.(2010) 4 SCC7284.1990 (Supp) Supreme Court Cases 336 THE HON'BLE SRI JUSTICE A.RAMALINGESWARA RAO WRIT PETITION No.22645 of 2015 ORDER
: This Writ Petition is filed by the petitioner claiming that he is an agriculturist owning Acs.37.00 of land. He stated that his lands are situated in the east and west of Veeranna Cheruvu and he is an ayacutdar of the said tank. Towards the eastern side of the tank, he dug five bore-wells in his land in Survey Nos.52, 69, 70, 71 and 38 and is cultivating the lands. There is sufficient water in the bore-wells. However, on the western side of the tank, there is an agricultural land to an extent of Acs.25.00 in Survey Nos.106, 110 and 111 of Mohammadapuram Village. As there was no water source to the western side of the lands, he laid pipelines of about 330 metres from the eastern side of the land and raising crops like sweet lime, papaya, groundnut, paddy and other crops with the help of the underground pipeline water. The said underground pipeline was laid by the side of the kacha road, which passes on the bund from eastern side to western side. The said pipeline was laid in the year 2003 after obtaining permission from the then Chief Engineer, Minor Irrigation, Hyderabad, in Memo No.DCE(MI)/OT3-T3/Misc/2003, dated 05.12.2003, and also the Gram Panchayat, Mohammadapuram. While so, in the year 2003, he constructed a big water tank with granite structure by spending Rs.3.00 lakhs in the western side of the lands for storage of water, which is supplied through pipeline. Due to political rivalry and at the instance of local politicians, respondent Nos.2 to 5 are now preventing him from taking water from the underground pipeline from the eastern side to western side on the ground that it was laid along the kacha road in the land, which does not belong to him. He further stated that in the year 2003 when there was interference by the local Police at the instance of the local politicians, this Court, by order dated 11.12.2003 directed the Police not to obstruct the supply of water and the fourth respondent herein was also a party to the said proceedings and the only difference from 2003 to now is, interference by the Irrigation Officials instead of Police. Though the petitioner showed the permission dated 05.12.2003, when respondent Nos.2 to 5 objected in spite of the same, the present Writ Petition is filed. When the matter came up for admission, it was adjourned twice for getting instructions by the learned Government Pleader. Learned Government Pleader produced the record today and it revealed that the petitioner earlier filed W.P.No.25217 2003 against the local Police and the fourth respondent herein apart from seventeen others. In the said Writ Petition, when the learned single judge refused to grant interim order, he filed W.A.No.2207 of 2003 against the order dated 03.12.2003 in W.P.M.P.No.31774 of 2003. A Division Bench of this court passed the following order on 11.12.2003. It is not known as to whether respondent No.3 has filed any complaint against the appellant herein before respondents 1 and 2 and if so whether any case has been registered against him. But at any rate, we find it difficult to sustain the order passed by the learned single Judge refusing to issue appropriate direction to respondents 1 and 2 directing them not to interfere with the supply of water as prayed for by the appellant. In the absence of registration of any crime against the appellant and in the absence of any valid order from the 3rd respondent, the appellant herein cannot be prevented from supplying water from the underground pipeline as claimed by him. For the aforesaid reasons, the impugned order passed by the learned single Judge is set aside. In the result, there shall be a direction directing respondents 1 and 2 not to obstruct the supply of water in any manner whatsoever. However, this order shall not preclude the 3rd respondent or any other competent authority to set the law in motion, if so desires, against the petitioner. Thereafter the Writ Petition was dismissed on 16.11.2009 for non-prosecution. This fact was not brought to the notice of this Court in the affidavit filed along with the Writ Petition, but the petitioner wanted to rely on the order of the Division Bench as aforesaid. Apart from that, this Court verified the record and noticed that the then Chief Engineer, Minor Irrigation, Hyderabad, issued a Memo No.DCE(MI)/OT3-T3/Misc/2003, dated 05.12.2003, directing the Superintending Engineer, Irrigation Circle, Hyderabad, to issue permission for laying pipeline down stream of the Veeranna Cheruvu Tank bund subject to the conditions mentioned therein and they read as follows:
1. The pipeline shall be laid with in the allowable distance from the TOE of the bund ensuring the safety of the bund and other works.
2. The pipe line shall be of smaller diameter i.e., not more than 8 dia can be allowed with out causing any damage.
3. The pipe line shall be handed over to the department and laying charges shall be remitted to the department and pipe line shall be under the control of the department. The said order was passed after recommendation by the concerned Deputy Executive Engineer and the Executive Engineer. The record reveals that the interference alleged in the earlier round of litigation against the petitioner was prompted by a complaint filed before the District Magistrate, Mahabubnagar, under Section 200 Cr.P.C in respect of the activities of the petitioner that took place on 26.08.2003 at 3:30 pm. Thereafter, when the Revenue Divisional Officer, Wanaparthy, addressed a letter on 25.02.2004 to the District Collector stating that the petitioner laid the pipeline unauthorisedly by damaging the top of the bund and since the Court orders dated 11.12.2003 does not bar the authorities to take action, the District Collector called for remarks from the Executive Engineer, Nagarkurnool/Wanaparthy, by letter dated 25.06.2004. The record also reveals that the then Collector & District Magistrate addressed a letter to the Executive Engineer on 18.01.2005 stating that the petitioner illegally and unauthorizedly damaged the top of the bund of the said tank and laid the pipeline on top of the bund against the permission granted by the Chief Engineer. Accordingly, the Executive Engineer was directed to inspect the tank and verify whether C.Es instructions were followed or not by the petitioner. A counter affidavit was filed in the said Writ Petition in W.P.No.25217 of 2003 and it reads as follows: There is a tank called Veeranna Cheruvu at Mahamadapur (v) Pangal Mandal, Mahabubnagar District. The said tank is under the control of the Irrigation Department i.e., the Executive Engineer, I.B.Division, Nagarkurnool, Mahabubnagar Dist. There is registered ayacut under the said tank of an extent of about 124 Acres. The petitioner is also having ayacut lands under the said Irrigation Tank to an extent of about 40 Acres. It is also having some other extent of land about 25 Acres at a far of place which is not a registered ayacut. It is submitted that during the last Khariff season, it was noticed by the staff of the Irrigation Department that the writ petitioner has been illegally cutting and damaging the tank bund. The petitioner is having a bore-well in his lands in Survey No.38. For the purpose of irrigating the non-ayacut Dry land in Sy.Nos.110 and 111 which is located at a distance of about 1.5 kilometres, he laid a 5 Inch dia Plastic pipeline by cutting and damaging the tank bund to a length of about 330 metres. On noticing that, we instructed the writ petitioner not to damage the tank bund as it causes breach and also severe loss to the Public but also disturb the vehicular traffic on the bund of the tank and the strength of the bund is also weakened and damaged. When the petitioner failed to comply with the instructions of the Department, we complained to the Police and took assistance from the local Police in protecting the tank bund in public interest. Without disclosing any of these facts, the petitioner filed the above writ petition. This Honble Court was not inclined to grant any interim stay on the stay application moved by him. Aggrieved by the said order, he preferred a Writ Appeal No.2207/2003. A Division Bench of this Honble Court while disposing of the above Writ Appeal directed the respondents 1 and 2 not to obstruct the supply of water in any manner whatsoever. The Division Bench of this Honble Court also observed that the said order does not preclude this respondent or any other competent authority to set the Law in motion if so desire. I respectfully submit that under the guise of the orders in the Writ Appeal, he is trying to damage the tank bund against the Public Interest. It is further submitted that in the meanwhile, he made a representation to the Executive Engineer to permit him to lay a pipeline enabling him to draw water from the land bearing in Survey No.38 upto the lands situated at a distance of 1.5 kms, which situate in Survey Nos.110, 111 etc. The said representation was forwarded to the Superintending Engineer and the Superintending Engineer, Irrigation Circle, Hyderabad, in turn referred to the Chief Engineer, Minor Irrigation, Errumanzil, Hyderabad. The Chief Engineer, after considering the writ petitioners case accorded permission to lay the pipeline vide proceedings No.DCE(MI)/OT OT3/Misc./2003, dated 05.10.2003. The writ petitioner was permitted to lay the pipeline down stream of the Veeranna Cheruvu subject to the terms and conditions mentioned therein. It was permitted to lay the pipeline from the toe of the bund ensuring the safety of the bund and other Irrigation works and the diameter of the pipeline shall not be more than 3 inches diameter. He should hand over the material to the Department and remit the charges and the Department will take up the laying of the pipeline in order to see that the other Irrigation works are not damaged. The writ petitioner instead of complying with the said conditions, he is trying to disturb the tank bund and the other Irrigation works under the guise of the orders in the Writ Appeal. Ultimately, it is stated that the writ petitioner should not encroach upon the property of the Government and cause damage for his own benefit ignoring the public interest. The Department took the Police assistance when the petitioner did not care the instructions of the Irrigation Department for protecting the tank. If the tank bund is not protected, it will weaken and there will be threat of breach to the tank during the rainy season. The so-called permission issued by the Chief Engineer was for laying the pipeline without damaging the tank at the toe of the bund. The petitioner did not submit the above facts fully and suppressed the fact of dismissal of W.P.No.25217 of 2003 on 16.11.2009. This Court verified the name of the Counsel who was representing in that case and in the present case and noticed that the same Counsel is representing. Learned Counsel pressed for interim order at the stage of admission, but this Court adjourned the matter in order to get instructions by the learned Government Pleader. After instructions also when the matter was listed, the Counsel pressed for out of turn hearing and when the matter was taken up for out of turn hearing, these facts came to light. In all fairness, the petitioner should have disclosed the complete facts in order to get a relief from this court in exercise of the powers under Article 226 of the Constitution of India. The petitioner submitted before this Court only partial version without filing even a copy of the counter affidavit filed in the earlier round of litigation. It is not known under what circumstances the Government did not take steps for modifying the order passed by the Division Bench or for disposal of the Writ Petition till it was dismissed for non- prosecution on 16.11.2009. But, the facts of the case clearly show that the petitioner highhandedly laid the pipeline over the tank bed exposing the bund for breaking open in the event of heavy rains. The reports of the Officers also disclose that there is a problem with regard to the drinking water. The Supreme Court considered the case of falsehood in Maria Margarida Sequeira Fernandes v. Erasmo Jack De Sequeira and held the importance of truth in paragraphs 43 and 52 as follows:
43. Satyameva Jayate (literally truth stands invincible) is a mantra from the ancient scripture Mundaka Upanishad. Upon Independence of India, it was adopted as the national motto of India. It is inscribed in Devnagri script at the base of the national emblem. The meaning of the full mantra is as follows: Truth alone triumphs; not falsehood. Through truth the divine path is spread out by which the sages whose desires have been completely fulfilled, reach where that supreme treasure of truth resides. (emphasis supplied) 52. Truth is the foundation of justice. It must be the endeavour of all the judicial officers and Judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents in order to ascertain the truth. In the said case it was stated that pleadings are the foundation of litigation, and further held as follows:
81. False claims and defences are really serious problems with real estate litigation, predominantly because of ever escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in our courts. If pragmatic approach is adopted, then this problem can be minimized to a large extent.
82. This Court in a recent judgment in Ramrameshwari Devi v. Nirmala Devi ((2011) 8 SCC249 (supra) aptly observed at page 266, para 43 that unless wrongdoers are denied profit from frivolous litigation, it would be difficult to prevent it. In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that court's otherwise scarce time is consumed or more appropriately, wasted in a large number of uncalled for cases. In this very judgment, the Court provided that this problem can be solved or at least be minimized if exemplary cost is imposed for instituting frivolous litigation. The Court observed at pp. 267-268, para 58 that imposition of actual, realistic or proper costs and/or ordering prosecution in appropriate cases would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases, the Courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings. The Supreme Court had an occasion to consider the conduct of parties while invoking jurisdiction under Articles 226 and 227 of the Constitution of India in Manohar Lal v. Ugrasen . It held as follows:
48. The present appellants had also not disclosed that land allotted to them falls in commercial area. When a person approaches a court of equity in exercise of its extraordinary jurisdiction under Article 226/227 of the Constitution, he should approach the court not only with clean hands but also with clean mind, clean heart and clean objective. "Equally, the judicial process should never become an instrument of oppression or abuse or a means in the process of the court to subvert justice."
Who seeks equity must do equity. The legal maxim "Jure naturaw aequum est neminum cum alterius detrimento et injuria fieri locupletiorem", means that it is a law of nature that one should not be enriched by the loss or injury to another. (Vide Ramjas Foundation v. Union of India (AIR1993SC852; K.R.Srinivas v. R.M.Premchand ((1994) 6 SCC620 and Nooruddin v. Dr.K.L.Anand ((1995) 1 SCC242 at SCC p.249, para 9).
49. Similarly, in Ramniklal N. Bhutta v. State of Maharashtra (AIR1997SC1236, this Court observed as under:-
"0. The power under Article 226 is discretionary. It will be exercised only in furtherance of interest of justice and not merely on the making out of a legal point. the interests of justice and the public interest coalesce. They are very often one and the same. ... The courts have to weigh the public interest vis--vis the private interest while exercising any of their discretionary powers. (emphasis added) 50. In Tilokchand Motichand v. H.B. Munshi (AIR1970SC898; State of Haryana v. Karnal Distillery Co.Ltd. (AIR1977SC781; and Sabia Khan v. State of U.P. (AIR1999SC2284, this Court held that filing totally misconceived petition amounts to abuse of the process of the court. Such a litigant is not required to be dealt with lightly, as 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."
51. In Abdul Rahman v. Prasony Bai (AIR2003SC718; S.J.S. Business Enterprises (P) Ltd. V. State of Bihar (2004) 7 SCC166; and Oswal Fats & Oils Ltd. v. Commissioner (Admn.), ((2010) 4 SCC728: JT2010(3) SC510, this Court held that whenever the court comes to the conclusion that the process of the court is being abused, the court would be justified in refusing to proceed further and refuse relief to the party. This rule has been evolved out of need of the courts to deter a litigant from abusing the process of the court by deceiving it. In yet another case in Oswal Fats and Oils Limited v. Additional Commissioner (Administration), Bareilly Division, Bareilly , the Supreme Court held as follows:
20. It is settled law that a person who approaches the court for grant of relief, equitable or otherwise, is under a solemn obligation to candidly disclose all the material/important facts which have bearing on the adjudication of the issues raised in the case. In other words, he owes a duty to the court to bring out all the facts and refrain from concealing/suppressing any material fact within his knowledge or which he could have known by exercising diligence expected of a person of ordinary prudence. If he is found guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the court not only has the right but a duty to deny relief to such person.
21. In one of the earliest decisions on the subject i.e., R. v. Kensington Income Tax Commissioner ((1917) 1 KB486(DC & CA), Viscount Reading, Chief Justice of the Divisional Court observed: (KB pp.495-96) "Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the applicant was not candid and did not fairly state the facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived. Before coming to this conclusion a careful examination will be made of the facts as they are and as they have been stated in the applicant's affidavit, and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the true facts. But if the result of this examination and hearing is to leave no doubt that this Court has been deceived, then it will refuse to hear anything further from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit."
22. The above extracted observations were approved by the Court of Appeal in the following words: " It is the duty of a party asking for an injunction to bring under the notice of the Court all facts material to the determination of his right to that injunction: and it is no excuse for him to say that he was not aware of the importance of any facts which he has omitted to bring forward. (As observed in Dalglish v. Jarvie, (2 Mac & G231:
42. ER89at p.89)) If an applicant does not act with uberrima fides and put every material fact before the Court it will not grant him an injunction, even though there might be facts upon which the injunction might be granted."
His Lordship rightly pronounced: "The Court, for its own protection, is entitled to say: We refuse this writ ... without going into the merits of the case on the ground of the conduct of the applicant in bringing the case before us."
Warrington, L.J.
was also of the same opinion. In a concurring judgment His Lordship observed: (R. v. Kensington Income Tax Commr., ((1917) 1 KB486(DC & CA) p.509 "It is perfectly well settled that a person who makes an ex parte application to the Court - that is to say, in absence of the person who will be affected by that which the Court is asked to do - is under an obligation to the Court to make the fullest possible disclosure of all material facts within his knowledge, and if he does not make that fullest possible disclosure, then he cannot obtain any advantage from the proceedings, and he will be deprived of any advantage he may have already obtained by means of the order which has thus wrongly been obtained by him."
23. This Court and different High Courts have repeatedly invoked and applied the rule that a person who does not disclose all material facts has no right to be heard on the merits of his grievance - State of Haryana v. Karnal Distillery Co. Ltd. ((1977) 2 SCC431, Vijay Kumar Kathuria v. State of Haryana ((1983) 3 SCC333, Welcome Hotel v. State of Andhra Pradesh ((1983) 4 SCC575, G. Narayanaswamy Reddy v. Govt. of Karnataka((1991) 3 SCC261, S.P.Chengalvaraya Naidu v. Jagannath ((1994) 1 SCC1, Agricultural and Processed Food Products v. Oswal Agro Furane ((1996) 4 SCC297, Union of India v. Muneesh Suneja ((2001) 3 SCC92, Prestige Lights Ltd. v. State Bank of India ((2007) 8 SCC449, Sunil Poddar v. Union Bank of India ((2008) 2 SCC326, K.D. Sharma v. Steel Authority of India Ltd. ((2008) 12 SCC481, G.Jayashree v. Bhagwandas S. Patel ((2009) 3 SCC141 and Dilip Singh v. State of U.P ((2010) 2 SCC114.
24. In Hari Narain v. Badri Das (AIR1963SC1558, this Court revoked the leave granted to the appellant by making following observations: (AIR p.1558) "It is of utmost importance that in making material statements and setting forth grounds in applications for special leave made under Article 136 of the Constitution, care must be taken not to make any statements which are inaccurate, untrue and misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading. Thus, if at the hearing of the appeal the Supreme Court is satisfied that the material statements made by the appellant in his application for special leave are inaccurate and misleading, and the respondent is entitled to contend that the appellant may have obtained special leave from the Supreme Court on the strength of what he characterizes as misrepresentations of facts contained in the petition for special leave, the Supreme Court may come to the conclusion that in such a case special leave granted to the appellant ought to be revoked."
25. In Dalip Singh v. State of U.P ((2010) 2 SCC114, the appellant's grievance was that before finalizing the case under the U.P. Imposition of Ceiling on Land Holdings Act, 1960, the prescribed authority did not give notice to the tenure holder Shri Praveen Singh (predecessor of the appellant). On a scrutiny of the records, this Court found that the prescribed authority had issued notice to Shri Praveen Singh, which was duly served upon him and held that the appellant is not entitled to relief because he did not approach the High Court with clean hands inasmuch as he made a misleading statement in the writ petition giving an impression that the tenure holder did not know of the proceedings initiated by the prescribed authority. The preface and para 21 of that judgment read as under: "For many centuries, Indian society cherished two basic values of life i.e., `Satya' (truth) and `Ahimsa' (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 justice delivery system which was in vogue in 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 over- shadowed 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 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, is not entitled to any relief, interim or final. (SCC p.114b-e) 24. From what we have mentioned above, it is clear that in this case efforts to mislead the authorities and the courts have transmitted through three generations and the conduct of the appellant and his son to mislead the High Court and this Court cannot, but be treated as reprehensible. They belong to the category of persons who not only attempt, but succeed in polluting the course of justice. Therefore, we do not find any justification to interfere with the order under challenge or entertain the appellant's prayer for setting aside the orders passed by the prescribed authority and the appellate authority."
(SCC p.124) A three Judge Bench of the Supreme Court in All India State Bank Officers Federation v. Union of India considered the case of suppression of material facts by the petitioners and the practice of misusing the process of Court, by holding as follows: It is common knowledge that, of late, statements are being made in petitions and affidavits recklessly and without proper verification not to speak of dishonest and deliberate misstatements. We, therefore, take this opportunity to record our strong emphatic disapproval of the conduct of the petitioners in this case and hope that this will be a lesson to the present petitioner as well as to other litigants and that at least in future people will act more truthfully and with a greater sense of responsibility. The invocation of jurisdiction under extraordinary powers vested in this Court cannot be allowed to a person, who comes to the Court with unclean hands or suppressing material facts in order to gain advantage. The petitioner cannot take advantage of the lethargy or inaction on the part of the Government Officers. If the petitioner is really aggrieved, this Court will extend its helping hand in accordance with the provisions of the Constitution of India or/and the laws framed under it. But, this Court will never encourage misuse of process of this Court. This Court cannot be used for the purpose of getting interim orders to protect an unlawful need/demand of the litigants who are greedy. This is a sacred institution and it cannot be allowed to be polluted by unscrupulous litigants. In view of the suppression of fact of dismissal of W.P.No.25217 of 2003 on 16.11.2009, and not disclosing complete facts with regard to the case of the petitioner, this Writ Petition is dismissed with exemplary costs of Rs.5,000/- (Rupees five thousand only) payable by the petitioner to the Telangana Legal Services Authority within a period of four weeks. The Writ Petition is, accordingly, dismissed with costs as stated above. The miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs. ________________________________ (A.RAMALINGESWARA RAO, J) 10.08.2015