Subaid N.K. v. District Geologist, Thrissur; Director, Mining and Geology, Office of the Mining and Geology, Kesavadasapuram, Pattam, Thiruvananthapuram; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY ,THE 02ND DAY OF APRIL 2019 / 12TH CHAITHRA, 1941** ## **WP(C).No. 5445 of 2019** ## **PETITIONER:** **SUBAID N.K., AGED 49 YEARS S/O.KUNJAMU, NADUTHARA HOUSE, WADAKKANCHERY P.O., WADAKKANCHERY VILLAGE, THALAPPILLY TALUK, TRISSUR DISTRICT.** **BY ADV. SRI.P.M.ZIRAJ** ## **RESPONDENTS:** |**1**|**THE DISTRICT GEOLOGIST,**| |---|---| ||**DEPARTMENT OF MINING AND GEOLOGY, THRISSUR**| ||**DISTRICT-680001.**| |**2**|**THE DIRECTOR,**| ||**MINING AND GEOLOGY, OFFICE OF THE MINING AND**| ||**GEOLOGY, KESAVADASAPURAM, PATTAM,**| ||**THIRUVANANTHAPURAM-695001.**| |**3**|**STATE OF KERALA,**| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT,**| ||**GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695001.**| ||**SRI.MANURAJ.K.J., GP**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 5445 of 2019** -2- ## **JUDGMENT** The petitioner, who is a lawyer by profession, who is stated to be owner of the property having an extent of 1 Hector 59.5 ares in Wadakkancherry Village in Thalappally Taluk has obtained Ext.P1 building permit dated 28.10.2017 and Ext.P2 Development permit dated 28.10.2017 issued by Wadakkanchery Municipality. The petitioner has filed this writ petition, on 21.02.2019, seeking a writ of mandamus commanding the 1[st] respondent District Geologist, Thrissur to consider Ext.P4 application and issue sufficient number of transit passes to transport ordinary earth stacked in the premises, which is stated to be the balance quantity of the earth removed by the petitioner from the foundation of the building. 2. On 22.09.2019, when this writ petition came up for admission, the learned Government Pleader sought time to get instructions. 3. On 25.03.2019, when this writ petition came up for consideration this Court noticed that though Ext.P4 ## **WP(C).No. 5445 of 2019** -3- application for mineral transit passes is one dated 28.01.2019, the same was sent by registered post only on 20.02.2019 from Pachalam Post Office in Ernakulam District. As per the counter affidavit filed by the 1[st] respondent, Ext.P4 application was received in the office of the said respondent only on 26.02.2019, without any signature. 4. In the counter affidavit filed by the 1[st] respondent, it is pointed out that based on an application made under subrule (2) of Rule 14 of the Kerala Minor Mineral Concession Rules, the petitioner was issued with Ext.P3 order dated 18.04.2018, whereby he has been granted mineral transit passes for transporting 1494 cubic meter ordinary earth in connection with the construction of a building as per Ext.P1 building permit dated 28.10.2017 and Ext.P2 development permit dated 28.10.2017. Thereafter, the petitioner submitted another request dated 01.06.2018 for removing the balance quantity of 300 cubic meter ordinary earth. Based on that application, the 1[st] respondent issued Ext.R1(a) order dated 04.06.2018, by renewing the validity of Ext.P3 order till ## **WP(C).No. 5445 of 2019** -4- 12.06.2018. It is thereafter that the petitioner made Ext.P4 request, which was received in the office of the 1[st] respondent on 28.01.2019, by registered post, and the said application does not contain the signature of the petitioner. In Ext.P4 application it is averred that, on the strength of Ext.P3 order dated 18.04.2018, the petitioner could not remove the entire quantity of ordinary earth stocked in the premises during the validity of that order. 5. Neither in Ext.P4 application, nor in this writ petition, the petitioner has disclosed the renewal granted to Ext.P3 order, by Ext.R1(a) order dated 04.06.2018, whereby the petitioner was granted permission to transport the balance quantity of 300 cubic meter ordinary earth and issued with mineral transit passes valid till 12.06.2018. 6. The petitioner has filed a reply affidavit, stating that, based on an application made for renewal of Ext.P3, he was permitted to transport 300 cubic meter of ordinary earth by Ext.R1(a) order and he was also issued with additional transit passes for that purpose. The petitioner kept the entire ## **WP(C).No. 5445 of 2019** -5- transit passes in his premises, which were lost due to flood along with other valuables and documents. On account of a communication gap, the petitioner omitted to disclose the issuance of Ext.R1(a) order and also the transit passes issued along with that order, to his counsel. It was for that reason the said order was omitted to be mentioned in the writ petition. Regarding Ext.P4 application, the petitioner has stated in the reply affidavit that, his representative by mistake put a copy of that application without signature in the envelop. The petitioner would contend that after the issuance of Ext.R1(a) order dated 04.06.2018, no earth was removed from the premises and no transit passes were used for transportation of earth. Hence, Ext.R1(a) order has no relevance. 7. Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for the respondents. 8. The pleadings and materials on record would show that on the strength of Ext.P1 building permit and Ext.P2 ## **WP(C).No. 5445 of 2019** -6- development permit dated 28.10.2017, the petitioner obtained Ext.P3 order dated 18.04.2018, of the 1[st] respondent District Geologist for transportation of 1494 cubic meter ordinary earth from the property in question. He was issued with necessary mineral transit passes for transportation, with validity upto 02.05.2018. Thereafter, the petitioner moved another application before the 1[st] respondent, for permission to transport balance quantity of 300 cubic meter of ordinary earth, by seeking renewal of Ext.P3 order. That request was allowed as per Ext.R1(a) order dated 04.06.2018, whereby the petitioner has been granted permission to transport the balance quantity of 300 cubic meter ordinary earth, and he was also issued with necessary mineral transit passes with validity upto 12.06.2018. 9. Without disclosing Ext.R1(a) order dated 04.06.2018 and also the transit passes issued for removing the balance quantity of ordinary earth, the petitioner has moved this writ petition, along with Ext.P4 application, by contending that he could not transport the entire quantity of ## **WP(C).No. 5445 of 2019** -7- ordinary earth during the validity of Ext.P3 order dated 18.04.2018. Based on Ext.R1(a) order, the petitioner was issued with additional mineral transit passes for transportation of the balance quantity of 300 cubic meter of ordinary earth. Now the stand taken by the petitioner in the reply affidavit is that, due to heavy rain, he was not in a position to transport ordinary earth from the premises and the entire transit passes kept in the premises were lost due to flood. As can be seen from Ext.R1(a) order, the validity of additional mineral transit passes were only upto 12.06.2018. Therefore, the validity of the additional passes was over much prior to the floods (which was in the month of August, 2018). The attempt made by the petitioner, who is stated to be a lawyer by profession in approaching this Court suppressing material facts cannot be viewed lightly. Though it is averred that he is a person with physical disability, the said fact is not substantiated by any materials placed on record. At any rate, physical disability, if any, of the petitioner cannot be put as a shield, once it is found that he has approached this Court with ## **WP(C).No. 5445 of 2019** -8- unclean hands. 10. 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. 11. 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 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 ## **WP(C).No. 5445 of 2019** -9- 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. 12. 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 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 ## **WP(C).No. 5445 of 2019** -10- 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 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 ## **WP(C).No. 5445 of 2019** -11- 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) ## 13. 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 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 ## **WP(C).No. 5445 of 2019** -12- 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. 14. In **Dnyandeo Sabaji Naik v. Pradnya Prakash Khadekar [(2017) 5 SCC 496]** a Three-Judge Bench of the ## **WP(C).No. 5445 of 2019** -13- Apex Court held that the Court must view with disfavour any attempt by a litigant to abuse the process. The sanctity of the judicial process will be seriously eroded if such attempts are not dealt with firmly. A litigant who takes liberties with the truth or with the procedures of the Court should be left in no doubt about the consequences to follow. Others should not venture along the same path in the hope or on a misplaced expectation of judicial leniency. Exemplary costs are inevitable, and even necessary, in order to ensure that in litigation, as in the law which is practised in our country, there is no premium on the truth. 15. Therefore, it is well settled that, a litigant who 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 ## **WP(C).No. 5445 of 2019** -14- 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. 16. Any attempt made by a litigant to mislead this Court, either by suppressing materials facts or by filing false affidavits or giving false statements should be curbed with an iron hand. Dismissal of such writ petitions imposing exemplary costs is inevitable, and even necessary, in order to prevent abuse of the process of this Court and to preserve the purity of judicial proceedings. 17. As held by the Apex Court in **Dnyandeo Sabaji Naik's case (supra)** a litigant who takes liberties with the truth or with the procedures of the Court should be left in no doubt about the consequences to follow. Others should not venture along the same path in the hope or on a misplaced expectation of judicial leniency. Exemplary costs are inevitable, and even necessary, in order to ensure that in litigation, as in the law which is practised in our country, there ## **WP(C).No. 5445 of 2019** -15- is no premium on the truth. 18. In the result, this writ petition is dismissed imposing a cost of **Rs.25,000/-** (Rupees twenty five 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.25,000/-** (Rupees twenty five 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** SJ ## **WP(C).No. 5445 of 2019** -16- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF BUILDING PERMIT DATED 28.10.2017 ISSUED BY THE SECRETARY, WADAKKANCHERY MUNICIPALITY.** ## **EXHIBIT P2** **TRUE COPY OF THE DEVELOPMENT PERMIT DATED 28.10.2017 ISSUED BY THE ASSISTANT ENGINEER, LOCAL SELF GOVERNMENT DEPARTMENT WADAKKANCHERY MUNICIPALITY DATED 28.10.2017.** ## **EXHIBIT P3** **TRUE COPY OF THE ORDER DATED 18.4.2018 ISSUED BY THE FIRST RESPONDENT.** **EXHIBIT P4 TRUE COPY OF APPLICATION DATED 28.01.2019 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT.** **EXHIBIT P5 TRUE COPY OF POSTAL RECEIPT DATED 20.02.2019.** **RESPONDENTS' EXTS:** **EXT.R1(A):TRUE COPY OF RENEWAL OF EXT.P3 DT.4.6.2018, No.200/18-19/3315/0E/C1/TDO/17.**