Prasannan v. The Commissioner, Regional Transport Office Kollam & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY,THE 28TH DAY OF NOVEMBER 2018 / 7TH AGRAHAYANA, 1940** ## **WP(C).No. 21728 of 2018** ## **PETITIONER:** **PRASANNAN, AGED 45 YEARS, S/O VAMADEVAN, MAKOM VEEDU, KADAKKAL TOWN NORTH, KADAKKAL VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.I.DINESH MENON** ## **RESPONDENTS:** |**1**|**THE COMMISSIONER,**| |---|---| ||**REGIONAL TRANSPORT OFFICE,**| ||**CIVIL STATION, KOLLAM - 691 001.**| |**2**|**REGIONAL TRANSPORT OFFICER,**| ||**THE REGIONAL TRANSPORT OFFICE,**| ||**CIVIL STATION, KOLLAM - 691001.**| ||**SRI.P.SANTHOSHKUMAR, SPL. GP**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 WPC 21728 OF 2018 ## **JUDGMENT** The petitioner, who is the registered owner of a stage carriage bearing registration No.KL-24/F-6372 covered by Ext.P1 certificate of registration, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1[st] respondent to consider and pass appropriate orders on Ext.P4 complaint dated 01.06.2018, by hearing the petitioner and other concerned parties, within a time frame to be fixed by this Court. 2. On 12.07.2018, when this writ petition came up for admission, this Court noticed that the complaint made by the petitioner in Ext.P4 is in respect of stage carriage bearing registration No.KL-16/C-8300 and the document marked as Ext.P3 is stated to be a true copy of the time sheet of the said vehicle. The registered owner of that stage carriage is not made a party to this writ petition. The learned Senior Government Pleader, on instructions, submitted that no stage carriage with registration No.KL-16/C-8300 is operating under the 2[nd] respondent Regional Transport Authority. 3. Thereafter, various orders were passed in this writ petition and the petitioner has also appeared in person as the 3 WPC 21728 OF 2018 learned counsel, who filed this writ petition, relinquished the Vakalath. The petitioner has filed an affidavit dated 13.10.2018, in order to explain the facts and circumstances and he has also engaged another counsel. 4. The document marked as Ext.P3 is a time sheet prepared by the petitioner, as sated in the affidavit dated 13.10.2018. The timing of a stage carriage is settled or revised after convening a timing conference by the Secretary of the Regional Transport Authority, with notice to the applicant and also to other enroute operators. The set of timings arrived at in the timing conference shall be endorsed by the proceedings of the Secretary of the Regional Transport Authority. The said proceedings shall contain the timings settled in the timing conference in respect of the stage carriage of the applicant, on the route in question, in the form of a table. A part of that proceedings cannot be produced in a writ petition as the time sheet of that vehicle. 5. Chapter XI of the Rules of the High Court of Kerala, 1971 deals with proceedings under Articles 226, 227 and 228 of the Constitution. Rule 145 deals with form and presentation of an application under Article 226 or under Article 227 or 4 WPC 21728 OF 2018 under Article 228. Rule 147 deals with the documents which should accompany such an application under Article 226 or under Article 227 or Article 228. Rule 147 reads thus; “147. Documents to accompany petitions.- (1) The application shall be accompanied by: - (a) an affidavit verifying the facts relied on, - (b) a copy of the impugned order, if any, and - (c) a schedule of the documents relied on in the affidavit with copies of such of those documents as are in the possession of the petitioner. - (d) synopsis as prescribed in sub-rule (5) of Rule 35. - (2) The copies of the document filed under sub-rule (1) shall be, authenticated as true copies by the Advocate, and, if there be no Advocate by the party. - (3) Two authenticated copies of the application, the affidavit and the annexures thereto for the use of the Court, and in petitions where the State is a respondent, two more copies of the applications, the affidavit and the annexures thereto for the use of that respondent.” 6. Going by clause (b) of sub-rule (1) of Rule 147, if an order is impugned in an application filed under Article 226 or under Article 227 or Article 228 of the Constitution of India such application shall be accompanied by a copy of the order impugned. Further, sub-rule (2) of Rule 147 mandates that the copy of the impugned order and other documents which accompany an application filed under Article 226 or under Article 227 or Article 228 of the Constitution shall be 5 WPC 21728 OF 2018 authenticated as true copies by the Advocate and if there is no Advocate, by the party. In the instant case, the time sheet prepared by the petitioner, which is placed on record as Ext.P3, is not an authenticated copy of the proceedings of the Secretary of the Regional Transport Authority, settling the timings of the stage carriage of another operator, against which the petitioner has raised certain objections. 7. In the writ petition, the description and address of the 1[st] respondent is wrongly shown as Commissioner, Regional - Transport Office, Civil Station, Kollam 691 001 instead of the concerned Deputy Transport Commissioner, i.e., the Deputy Transport Commissioner, South Zone, Civil Station, – Kudappanakunnu, Thiruvananthapuram 695 043 or the concerned Regional Transport Officer, i.e., the Regional Transport Officer, Civil Station, Kollam-695 013. 8. In **Sali Mohan v. Kolazhi Grama Panchayath, Thrissur and others [2015 (4) KHC 261]** this Court held that, Section 27 of the General Clauses Act, 1897 (for brevity, 'the State Act') as well as Section 26 of the Interpretation and General Clauses Act, 1125 (for brevity, 'the State Act') do not lay down an inflexible or conclusive presumption as to service 6 WPC 21728 OF 2018 of notice by registered post. It only states that a presumption as to service of document by post can be drawn if the circumstances enumerated in Section 27 of the Central Act or Section 26 of the State Act are present, unless the contrary is proved. One of the essential circumstances for drawing such a presumption as to service of document by post is that the registered postal article should be 'properly addressed'. A postal article with incomplete or indefinite address, without specifying some definite place for delivery, such as a particular house or building, or a particular post box, or a particular number in a street, along with the name of the locality where the addressee resides or carries on business or employed, cannot be termed as one 'properly addressed' in order to draw a presumption as to service of document by post, under Section 27 of the Central Act or Section 26 of the State Act, or under Section 16 or Section 114 of the Evidence Act, 1872. 9. In **Sali Mohan's case (supra)** this Court held further that, for drawing a presumption under the proviso to - sub rule (2) of Rule 51 of the Rules of the High Court of Kerala, 1971 that the notice had been duly served on the respondent, one of the essential circumstances is that the 7 WPC 21728 OF 2018 ' ' notice was properly addressed . If the postal article containing the notice issued by this Court contain only an incomplete or indefinite address, without specifying some definite place for delivery, such as a particular house or building, or a particular post box, or a particular number in a street, along with the name of the locality where the respondent resides or carries on business or employed, it cannot be termed as a notice 'properly addressed' to the respondent, in order to draw a presumption under the proviso to sub-rule (2) of Rule 51, that the notice had been duly served on such respondent. 10. Rule 146 of the Rules of the High Court of Kerala, 1971 provides that an application under Article 226 or under Article 227 or under Article 228 of the Constitution of India shall be as in Form No.10, as per which, the cause title of the writ petition should contain the description and also the address of the parties, intended for service of notice. Rule 148 mandates that, all persons directly affected shall be made parties to the writ petition, and that notice of the writ petition shall, on admission, be given to all such persons either by personal service or by public advertisement, as the Court in each case may direct. Going by sub-rule (1) of Rule 51, unless 8 WPC 21728 OF 2018 otherwise ordered, every notice shall be sent, in the first instance, to the address of the respondent given in the memorandum of appeal or petition, as the case may be, by means of registered post, acknowledgment prepaid and that, an acknowledgment purporting to be signed by the respondent shall be deemed to be sufficient proof of service of such notice. 11. In **Sali Mohan's case (supra)** this Court held that, the provisions under the Indian Post Office Rules, 1933 and that under the Postal Manual mandate that no postal article shall be accepted for registration unless it bears the name and complete address of the sender as well as the addressee. When the address of the parties given in the memorandum of writ petition, appeal, etc., are intended for sending notice or other communications by this Court, it is inevitable that, the memorandum of writ petition, appeal, etc., filed before this Court should contain complete and definite address, specifying the definite place for delivery, such as a particular house or building, or a particular post box, or a particular number in a street, along with the name of the locality where the party resides or carries on business or employed. 12. In **Sali Mohan's case (supra)** it was noted that 9 WPC 21728 OF 2018 this Court vide Notification No.A1-14065/2007 dated 09.10.2007 has instructed that, the actual postal address of the parties, with correct Pin Code, should be shown in all proceedings filed in this Court and that no proceedings shall be received without such actual postal address. The aforesaid notification was issued, when this Court noticed that the address of the parties given in the memorandum of writ petition, appeal, etc., are not the actual address, as a result of which, the notice and other articles sent by post in such address are returned by the Postal Department stating that ' ' addressee not known . 13. In **Prabodh Verma v. State of U.P. [(1984) 4 SCC 251]** a Three-Judge Bench of the Apex Court held that a High Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them before it as respondents in a representative capacity, if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them the High Court ought to dismiss the petition for non-joinder of necessary parties. 10 WPC 21728 OF 2018 14. Despite the law laid down in the decision referred to supra, the petitioner has presented this writ petition before this Court on 29.06.2018, without impleading the affected party in the party array. Even after the order of this Court dated 12.07.2018, the petitioner has not chosen to take steps to implead the affected party. The conduct of the petitioner in approaching this Court without the affected party in the party array and producing document, which is not an authenticated copy of the original has to be deprecated in strongest terms and I do so. 15. As stated by Scrutton, L.J., in **R. v. Kensington Income Tax Commissioners [(1917) 1 KB 486]** , an applicant 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, maneuvering or misrepresentation, which has no place in equitable and prerogative jurisdiction. 16. In **Prestige Lights Limited v. State Bank of India [(2007) 8 SCC 449]** the Apex Court reiterated that a prerogative remedy is not a matter of course. Therefore, in 11 WPC 21728 OF 2018 exercising extraordinary power, a writ court will indeed bear 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, the court may dismiss the action without adjudicating the matter. 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. 17. In **Prestige Lights' case (supra)** the Apex Court held further that, under Article 226 of the Constitution of India, the High Court is exercising discretionary and extraordinary jurisdiction. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the court, the writ court may refuse to 12 WPC 21728 OF 2018 entertain the petition and dismiss it without entering into merits of the matter. Paragraphs 33 and 34 of the said judgment read thus: “33. It is thus clear that though the appellantCompany had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the Writ Court may refuse to entertain the petition and dismiss it without entering into merits of the matter. 34. The object underlying the above principle has been succinctly stated by Scrutton, L.J., in **R v. Kensington Income Tax Commissioners, [(1917) 1 KB 486 : 86 LJ KB 257 : 116 LT 136** - **(CA)]** , in the following words: "It has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the 13 WPC 21728 OF 2018 material facts - facts, not law. He must not misstate the law if he can help it - _the court is supposed to know the law. But it knows nothing about the facts_ , and 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 action which it has taken on the faith of the imperfect statement." (Emphasis supplied) ## 18. In **K.D. Sharma v. Steel Authority of India Ltd.** **[(2008) 12 SCC 481]** , the Apex Court held that the party who invokes the extraordinary jurisdiction of the Apex Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play 'hide and seek' or to 'pick and choose' the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of writ Courts and exercise would become impossible. The petitioner must WPC 21728 OF 2018 14 disclose all the facts having a bearing on the relief sought without any qualification. This is because, "the Court knows law but not facts". In the said decision, the Apex Court held further that, if the primary object as highlighted in **R. v.** ## **Kensington Income Tax Commissioners [(1917) 1 KB** **486]** is kept in mind, an applicant 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, maneuvering or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the 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 an applicant requires to be dealt with for Contempt of Court for abusing the process of the court. 19. Therefore, it is well settled that, a litigant who WPC 21728 OF 2018 15 invokes the extraordinary jurisdiction of this Court under Article 226 of the Constitution must come with clean hands and clean objects. The judicial proceedings are sacrosanct, and no person would be allowed to abuse the judicial process, particularly, in public law remedy. In writ proceedings, the Court places implicit faith on the parties and their pleadings, as it does not indulge in any fact finding or roving enquiry of what has been asserted. Since Article 226 of the Constitution of India espouses equity jurisprudence, a litigant who has approached the Court with unclean hands, without disclosing full facts, is not entitled for any reliefs. 20. In the result, this writ petition is dismissed imposing a cost of **Rs.10,000/-** (Rupees Ten Thousand only) payable by the petitioner to the Chief Minister's Distress Relief Fund, to provide relief to flood victims in Kerala. The petitioner shall remit the said amount in the Chief Minister's Distress Relief Fund, within three weeks from the date of receipt of a certified copy of this judgment. Failing which, the State Government shall recover the said amount by initiating revenue recovery proceedings against the petitioner. The remittance/recovery of **Rs.10,000/-** (Rupees Ten WPC 21728 OF 2018 16 Thousand only) as cost by/from the petitioner shall be brought to the notice of this Court by way of a memo filed by the learned Senior Government Pleader. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** 17 WPC 21728 OF 2018 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT-P1: TRUE COPY OF THE CERTIFICATE OF REGISTRATION. EXHIBIT-P2: TRUE COPY OF THE TIME SHEET. EXHIBIT-P3: TRUE COPY OF THE NEW TIME SHEET. EXHIBIT-P4: TRUE COPY OF THE COMPLAINT DATED 01.06.2018.** ## **RESPONDENTS'EXHIBITS: NIL** **TRUE COPY** **P.A. TO JUDGE**