Dalip Singh vs State Of U.P. & Ors

Dalip Singh ...Appellant

Versus

State of U.P. and others ...Respondents

ORDER

1. 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 2

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.

2. In Hari Narain v. Badri Das AIR 1963 SC 1558, this Court

adverted to the aforesaid rule and revoked the leave granted to the

appellant by making the following observations:

"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."

3 3. In Welcome Hotel and others v. State of Andhra Pradesh and

others etc. AIR 1983 SC 1015, the Court held that a party which has

misled the Court in passing an order in its favour is not entitled to be

heard on the merits of the case.

4. In G. Narayanaswamy Reddy and others v. Governor of

Karnataka and another AIR 1991 SC 1726, the Court denied relief to

the appellant who had concealed the fact that the award was not made by

the Land Acquisition Officer within the time specified in Section 11-A of the

Land Acquisition Act because of the stay order passed by the High Court.

While dismissing the special leave petition, the Court observed:

"Curiously enough, there is no reference in the Special Leave Petitions to any of the stay orders and we came to know about these orders only when the respondents appeared in response to the notice and filed their counter affidavit. In our view, the said interim orders have a direct bearing on the question raised and the non-disclosure of the same certainly amounts to suppression of material facts. On this ground alone, the Special Leave Petitions are liable to be rejected. It is well settled in law that the relief under Article 136 of the Constitution is discretionary and a petitioner who approaches this Court for such relief must come with frank and full disclosure of facts. If he fails to do so and suppresses material facts, his application is liable to be dismissed. We accordingly dismiss the Special Leave Petitions."

5. In S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath

(dead) by L.Rs. and others JT 1993 (6) SC 331, the Court held that

where a preliminary decree was obtained by withholding an important 4

document from the court, the party concerned deserves to be thrown out

at any stage of the litigation.

6. In Prestige Lights Ltd. V. State Bank of India (2007) 8 SCC

449, it was held that in exercising power under Article 226 of the

Constitution of India the High Court is not just a court of law, but is also a

court of equity and a person who invokes the High Court's jurisdiction

under article 226 of the Constitution is duty bound to place all the facts

before the court without any reservation. If there is suppression of

material facts or twisted facts have been placed before the High Court

then it will be fully justified in refusing to entertain petition filed under

Article 226 of the Constitution. This Court referred to the judgment of

Scrutton, L.J. in R v Kensington Income Tax Commissioners (1917) 1

K.B. 486, and observed:

"In exercising jurisdiction under Article 226 of the Constitution, the High Court will always keep in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, then the Court may dismiss the action without adjudicating the matter on merits. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible."

5 7. In A.V. Papayya Sastry and others v. Government of A.P. and

others, AIR 2007 SC 1546, the Court held that Article 136 does not confer

a right of appeal on any party. It confers discretion on this Court to grant

leave to appeal in appropriate cases. In other words, the Constitution has

not made the Supreme Court a regular Court of Appeal or a Court of Error.

This Court only intervenes where justice, equity and good conscience

require such intervention.

8. In Sunil Poddar & Ors. v Union Bank of India (2008) 2 326, the

Court held that while exercising discretionary and equitable jurisdiction

under Article 136 of the Constitution, the facts and circumstances of the

case should be seen in their entirety to find out if there is miscarriage of

justice. If the appellant has not come forward with clean hands, has not

candidly disclosed all the facts that he is aware of and he intends to delay

the proceedings, then the Court will non-suit him on the ground of

contumacious conduct.

9. In K.D. Sharma v. Steel Authority of India Ltd. and others

(2008) 12 SCC 481, the court held that the jurisdiction of the Supreme

Court under Article 32 and of the High Court under Article 226 of the

Constitution is extraordinary, equitable and discretionary and it is

imperative that the petitioner approaching the Writ Court must come with 6

clean hands and put forward all the facts before the Court without

concealing or suppressing anything and 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 petition may be dismissed

at the threshold without considering the merits of the claim. The same

rule was reiterated in G. Jayshree and others v. Bhagwandas S. Patel

and others (2009) 3 SCC 141.

10. This appeal, which is directed against order dated 21.5.2001 passed

by the Allahabad High Court is illustrative of how unscrupulous litigants

can mislead the authorities entrusted with the task of implementing the

provisions of U.P. Imposition of Ceiling on Land Holdings Act, 1960 (for

short, "the Act") and the courts for retaining possession of the surplus

land. The tenure-holder - Praveen Singh did not file statement in terms of

Section 9(2-A) of the Act in respect of his holding as on 24.1.1971. After

about four years, the Prescribed Authority issued notice dated 29.11.1975

under Section 10(2) of the Act and called upon Shri Praveen Singh to show

cause as to why the statement prepared under Section 10(1) of the Act

may not be taken as correct and his land may not be declared surplus

accordingly. A copy of the statement was sent to Shri Praveen Singh

along with the notice in C.L.H. Form No.4. For the sake of convenient

reference, the notice is reproduced below:

7 "C.L.H. FORM NO. 4

(See Rule 8)

(Form of Notice under Section 10(2) of the imposition of Ceiling on Land Holdings Act, 1961)

To, Name of tenure-holder Sri Praveen Singh With parentage s/o. Shri Raghubir Singh and Address r/o Village Tisotara, P.O. Khas, Pargana Kirat Pur, Tehsil Najibabad, District Bijnor.

Whereas you have failed to submit a statement/have furnished incomplete/incorrect statement in respect of all your holdings in the State of Uttar Pradesh including holdings of your family members with all the required particulars within the time mentioned in the notice in C.L.H. Form 1, published under Section 9;

And whereas the statement of all holdings held by you in the State on 8th June, 1973, statement showing proposed ceiling area applicable to you and the proposed surplus land have been prepared under sub-section (1) of Section 10, they are sent to you herewith and you are hereby called upon to show cause within a period of 15 days from the date of service of this notice, why the said statement be not taken as correct.

On your failure to dispute the correctness of the statements in any court, within the time allowed, the aforesaid statement shall be treated as final and ceiling area applicable to you and the surplus land shall be determined accordingly.

Given under my hand and seal of the Court this day of 29-11-1975.

S/d-

Signature of the Prescribed Authority of the Sub-

Division Prescribed Authority Tehsil Najibabad."

8 11. The notice was delivered to Shri Praveen Singh on 3.12.1975, but he

neither filed any objection to the proposed determination of his surplus

land nor sought extension of time for the said purpose. After service of

notice, the Prescribed Authority adjourned the case on 10.12.1975 and

again on 19.12.1975 apparently with the hope that the tenure-holder may

file objection to the statement prepared under Section 10(1). This is

evident from the proceeding sheets of the two dates, which are

reproduced below:

Proceedings dated 10.12.1975

10.12.1965 File received after service of notice on the tenure-holder on 3.12.1975.

It is ordered that the file be put up on 19.12.1975 after receipt of objections.

Sd/-

Prescribed Authority Proceedings dated 19.12.1975

19.12.1975 File put up. The tenure-holder has not filed any objection despite service.

It is ordered that the file be put up for ex-

parte orders on 27.12.1975.

Sd/-

Prescribed Authority"

9

12. On 27.12.1975, the Prescribed Authority noted that Shri Praveen

Singh has not filed any objection and declared that 18.22 acres of irrigated

land was surplus in the hands of the tenure-holder. After six months and

twelve days, Shri Praveen Singh submitted an application dated 8.7.1976

along with what was termed as an affidavit before the Prescribed Authority

and prayed that ex parte order dated 27.12.1975 may be set aside and he

may be given opportunity to file objections and tender evidence. The

Prescribed Authority rejected the application on the same day i.e. 8.7.1976

by observing that no valid ground has been made out for reconsidering the

matter after six months. The appeal preferred by Shri Praveen Singh

against the order of the Prescribed Authority was dismissed by Additional

Commissioner (Judicial), Allahabad (Appellate Authority) in default because

no one appeared on the date of hearing. The restoration application filed

by Shri Praveen Singh was dismissed on 27.8.1980. He then challenged

the orders of the Prescribed Authority and Appellate Authority in Writ

Petition No. 8342/1980, which was allowed by the High Court and the

matter was remitted to the Appellate Authority with a direction to decide

the application of Shri Praveen Singh afresh in accordance with law.

13. In compliance of the direction given by the High Court, the Appellate

Authority reconsidered the appeal of Shri Praveen Singh but dismissed the

same on the ground that the tenure-holder had not filed an application 10

under Section 5 of the Limitation Act for condonation of the delay and

even in the application filed for setting aside the ex parte order, no cause

was shown for the delay. The Appellate Authority also observed that the

tenure-holder had not denied receipt of notice dated 29.11.1975 issued

under Section 10(2) of the Act, but did not file any objection till the

passing of ex parte order on 27.12.1975 and that his assertion of having

come to know of the ex parte order from Lekhpal Halqa on 7.7.1976 is not

believable. It appears that after remand of the matter by the High Court,

Shri Praveen Singh died and, therefore, his legal representatives (including

the appellant herein) were substituted in his place.

14. The legal representatives of Shri Praveen Singh jointly filed Civil

Miscellaneous Writ Petition No. 22790/1990 and prayed for quashing of

orders dated 27.12.1975, 8.7.1976, 7.8.1990 passed by the Prescribed

Authority and the Appellate Authority respectively. They also prayed for

issue of a direction to the Appellate Authority to remand the case to the

Prescribed Authority for entertaining their objections. In paragraph 3 of

the writ petition, the following statement was made:

"That the petitioner's late father, against whom the proceedings had been initiated under Section 10(2) of the Ceiling Act, filed application on 8.7.1976 supported by an affidavit stating therein clearly that he was seriously ill for about ten months as such he was not in a position to file objection, and as a matter of fact he did not have any knowledge of the date of the proceedings that were being 11

conducted before the prescribed authority. True copy of the application dated 8.7.1976 of petitioners' late father is annexed herewith as Annexure 2. True copy of the affidavit filed in support of the application dated 8.7.1976 of the petitioners' father is annexed herewith as annexure

3."

(Emphasis added)

15. By an order dated 7.9.1990, the learned Single Judge of the

Allahabad High Court stayed the operation of the orders passed by the

Prescribed Authority and the Appellate Authority. The interim order

remained operative till 21.5.2001 that is the date on which the writ

petition was finally dismissed and during the interregnum the appellant

continued to enjoy the property.

16. In the special leave petition filed against the order of the High Court,

notice was issued on 12.10.2001, but the appellants prayer for stay was

declined. Thereafter, the surplus land of the tenure-holder was distributed

among the landless persons who were joined as parties pursuant to order

dated 27.3.2006 passed in I.A. No. 9/2004.

17. After service of notice, respondent Nos. 1 to 3 filed counter in the

form of an affidavit of Shri Pradip Kumar Singh, Additional Tehsildar,

District Bijnor, U.P. In his affidavit, Shri Pradip Kumar gave details of the

steps taken by the Prescribed Authority in terms of Section 10(1) and 12 10(2) of the Act and made a categorical assertion that notice issued on

29.11.1975 was duly served upon Shri Praveen Singh on 3.12.1975. This

is evident from paragraphs 4(iv) and (v) of the counter affidavit read as

under:

"(iv) That the averments of facts made in the list of dates against date 7.7.1976 are not admitted being incorrect. The notice in CLH Form No. 4 having been served on the tenure-

holder on 3.12.1975, it was for him to have filed his objection. It was for the tenure-holder to have managed his affairs. It is not for a Court or an Authority to communicate to the tenure- holder each and every order passed by it once service of the notice is complete, the Act does not require that each and every date of proceedings and the copy or information about the final order ex parte or otherwise be served on him. The tenure-holder avoided to file his objections since he had none. The statement of surplus land is prepared by the revenue authorities in accordance with the provisions of the Act which is prepared on the basis of revenue records of land held by a tenure-holder in his name and there is `Presumption of correctness of the revenue record.'

(v) That the averments of fact in list of date against date 8.7.1976 are not admitted as stated. It is submitted that an application dated 8.7.1976 filed by the tenure-holder did not dispute service of notice in CLH Form No. 4 dated 29.11.1975. The application was of a general nature. If a tenure-holder having been asked to file objections within 15 days of the date of service of him `chooses not to do so', would proceed to a presumption that he has nothing to say. Section 11 o the Act provides that where a tenure-holder chooses not to dispute and not to file any objection to the statement prepared by the Prescribed Authority under Section 10 of the Act within the stipulated period, the Prescribed Authority `shall' accordingly determine the surplus land of the tenure- holder. Sub-section (2) of Section 11 of the Act further provides that where an application is made by a tenure-holder within thirty days of the date of an order under sub-section (11) of the Act, that being a statutory duly cast on the 13

Prescribed Authority. In the present case the Prescribed Authority after passing order dated 27.12.1975 fixed the next date as 27.1.1976 i.e. after 30 days and it is only on 27.1.1976 that the Prescribed Authority sent notification regarding publication of surplus land in official Gazette which was so published on 5.6.1976."

18. Shri Sunil Kumar Singh, son of the appellant Dalip Singh and

grandson of late Shri Praveen Singh filed rejoinder affidavit dated 18 th

February, 2002. In paragraph 3 of the rejoinder affidavit Shri Sunil Kumar

Singh made the following statement :-

"That it is denied categorically that the father of the petitioner had ever received the notice dated 29.11.1975 along with the statement of surplus land, prepared under section 10(1) of the Act. It is humbly stated that father of the petitioner could not file any show cause without going through the above referred statement prepared under Section 10(1) of the Act."

19. We have heard learned counsel for the parties and scrutinized the

record. In our opinion, the appeal is liable to be dismissed only on the

ground that the tenure-holder Shri Praveen Singh did not state correct

facts in the application filed by him on 8.7.1976 before the Prescribed

Authority for setting aside the ex parte order and the appellant did not

approach the High Court with clean hands inasmuch as, by making a

misleading statement in paragraph 3 of the writ petition, an impression

was created that the tenure-holder did not know of the proceedings

initiated by the Prescribed Authority. By making the said statement, the 14

appellant succeeded in persuading the High Court to pass an interim order

which resulted in frustrating the efforts made by the concerned authority

to distribute the surplus land among landless persons. Even before this

Court, a patently false statement has been made in the rejoinder affidavit

on the issue of receipt of notice dated 29.11.1975 by Shri Praveen Singh.

20. A perusal of application dated 8.7.1976 submitted by Shri Praveen

Singh for setting aside ex parte order dated 27.12.1975 passed by the

Prescribed Authority makes it clear that he had pleaded his continuous

illness for ten months as the cause for his inability to file objection. In

paragraph 2 of the application, Shri Praveen Singh made a suggestive

assertion that he had no knowledge of the proceedings initiated by the

Prescribed Authority and he came to know about the case having been

decided ex parte only on 7.7.1976 when he went to Lekhpal to procure

memo. There was not even a whisper in the application that notice dated

29.11.1975 issued by the Prescribed Authority under Section 10(2) of the

Act had not been served upon him and on that account he could not file

objections within 15 days. The application filed by Shri Praveen Singh was

not supported by any medical certificate or other evidence which could

prima facie establish that he was really sick for ten months. This is the

reason why the Prescribed Authority refused to reconsider order dated

27.11.1975 and the Appellate Authority declined to entertain his prayer for 15

remand of the case to the Prescribed Authority for the purpose of fresh

determination of surplus area case. Notwithstanding this, in the writ

petition filed before the High Court a misleading statement was made that

due to serious illness, Shri Praveen Singh could not file objection and, as a

matter of fact, he did not have any knowledge of the dates of proceedings

which were conducted by the Prescribed Authority. In view of that

statement, the learned Single Judge of the High Court felt persuaded to

stay the orders passed by the Prescribed Authority and Appellate Authority

which, as mentioned above, resulted in frustration of the action to be

taken by the concerned authority for distribution of the surplus land to

landless persons for a good period of more than eleven years and enabled

the heirs of Shri Praveen Singh to retain possession of the surplus land

and enjoy the same. Before the High Court also, no evidence was

produced in support of the assertion regarding serious illness of Shri

Praveen Singh. Insofar as this Court is concerned, Shri Sunil Kumar Singh,

grandson of Shri Praveen Singh and son of the appellant, boldly made a

false statement that his grandfather did not receive notice dated

29.11.1975 along with the statement of surplus land prepared under

Section 10(1) and he could not file any show cause without going through

the statement. We are amazed at the degree of audacity with which Shri

Sunil Kumar Singh could make a patently false statement on oath. 16

21. 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.

22. In the result, the appeal is dismissed. We would have saddled the

appellants with exemplary costs but, keeping in view the fact that

possession of the surplus land was taken in 2002 and the same has been

distributed among landless poor persons, we refrain from doing so.

........................................J. [G.S. Singhvi]

......................................J. [Asok Kumar Ganguly] New Delhi December 3, 2009