Vijayan Nair v. Kerala State Road Transport Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY ,THE 08TH DAY OF MARCH 2019 / 17TH PHALGUNA, 1940 WP(C).No. 3853 of 2019** ## **PETITIONER:** **VIJAYAN NAIR, S/O. VASUDEVAN PILLAI,AGED 62, KOCHU MANACAUD VEEDU, TC.3/501, MUTTADA P.O, THIRUVANANTHAPURAM REP.BY POWER OF ATTORNEY, JAYAKUMARAN, S/O. KUNJAN, AGED 58, KARTHIKA, TC 2/1213, NEAR ARYA CENTRAL SCHOOL, PATTOM P.O, THIRUVANANTHAPURM.** **BY ADV. SRI.LIJU. M.P** ## **RESPONDENTS:** |**1**|**THE KERALA STATE ROAD TRANSPORT CORPORATION,**| |---|---| ||**CHIEF OFFICE, TRANSPORT BHAVAN, THIRUVANANTHAPURAM**| ||**695 001, REP. BY ITS CHAIRMAN.**| |**2**|**THE MANAGING DIRECTOR/CHAIRMAN,**| ||**KERALA STATE ROAD TRANSPORT CORPORATION, CHIEF**| ||**OFFICE, TRANSPORT BHAVAN,**| ||**THIRUVANANTHAPURAM 695 001.**| |**3**|**THE DISTRICT TRANSPORT OFFICER,**| ||**KERALA STATE ROAD TRANSPORT CORPORATION,**| ||**THIRUVANANTHAPURAM CITY,**| ||**THIRUVANANTHAPURAM 695 001.**| |**4**|**THE ASSISTANT TRANSPORT OFFICER,**| ||**KERALA STATE ROAD TRANSPORT CORPORATION,**| ||**THIRUVANANTHAPURAM CITY,**| ||**THIRUVANANTHAPURAM 695 001.**| ||**BY ADV. SRI.T.P.SAJAN,**| ||**ADV. SRI.P.C.CHACKO, SC, KERALA STATE ROAD**| ||**TRANSPORT CORPN.**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C)No.3853 of 2019** ## **:-2-:** ## **J U D G M E N T** Vijayan Nair, the petitioner herein, is a licensee under the respondents, in respect of shop room No.30 at Thiruvananthapuram City Unit Shopping Complex of the Kerala State Road Transport Corporation. This writ petition is filed by Vijayan Nair, through one Jayakumaran, who is the power of attorney holder of the former, as per Ext.P3 power of attorney dated 9.7.2002. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P4 notice dated 16.1.2019 issued by the 4th respondent Assistant Transport Officer, whereby Vijayan Nair is asked to appear before the 2nd respondent, the Chairman and Managing Director of the 1st respondent Corporation to execute a fresh licence deed. 2. According to the petitioner, in view of ## **W.P.(C)No.3853 of 2019** |**:-3-:**| |---| |Ext.P3 power of attorney, there is no legal| |impediment in allowing the power of attorney to| |enter into fresh agreement with the 2<br>nd<br>respondent,| |as per Ext.P4 notice. However, the 4<br>th<br>respondent| |issued Ext.P4 notice, whereby Vijayan Nair is asked| |to appear before the 2<br>nd<br>respondent Chairman and| |Managing Director to execute a fresh licence deed.| |Feeling aggrieved, the petitioner is before this| |Court in this writ petition under Article 226 of| |the Constitution of India, seeking a writ of| |certiorari to quash Ext.P4 notice and all| |proceedings thereunder; a writ of mandamus| |commanding the respondents to renew the licence| |deed in favour of the petitioner for shop room| |No.30 at Thiruvananthapuram City Unit Shopping| |Complex, mentioned in Ext.P4 notice, at the| |earliest, at any rate within a time limit as fixed| |by this Court; and a writ of mandamus commanding| ## **W.P.(C)No.3853 of 2019** ## **:-4-:** the respondents to allow the power of attorney holder of the petitioner as per Ext.P3, to represent the petitioner in connection with renewal of licence deed. 3. On 8.2.2019 when this writ petition came up for admission, the learned Standing Counsel for KSRTC sought time to get instructions. 4. A counter affidavit has been filed on behalf of the respondents, opposing the reliefs sought for in this writ petition. Paragraphs 4 to 7 of the said counter affidavit read thus; “4. I respectfully submit that clause 1 of the Exhibit P2 licence clearly stated that the licensee is permitted to occupy the shop. Again in clause 20 of Exhibit P2 licence deed it is stated that, “The licensee shall not assign or make over the licence or the benefits or burdens thereof or any part thereof to any other persons or body corporate. The licensee shall not underlet or sublet to any person or persons or body corporate the execution of the **W.P.(C)No.3853 of 2019** ## **:-5-:** license or any part thereof. The licensee shall inform the Corporation all details regarding the personnel employed in the trade and business and obtain the approval of the Corporation for such personnel and the business shall not be left in charge of any person not so approved by the Corporation failing which it will be deemed that the licensee has created a sub contract and this contract is liable to instant, termination without notice. The corporation shall have the right of instant termination without notice.” 5. It is also stated in clause 19 in Exhibit P2 licence that in case the Corporation finds that the licensee becomes unable to conduct the business to the best satisfaction of the Corporation, the Corporation reserve the right to terminate the licence by giving one month notice in advance to the licensee. It is pertinent to note that in clear violation of the aforesaid terms the petitioner admittedly executed Exhibit P3 power of attorney and under the guise of that the business is run by another person. Clause 2 of the Exhibit P3 power of attorney clearly reveals that it is a sublease **Clause 2 of the Exhibit P3 power of** **W.P.(C)No.3853 of 2019** ## **:-6-:** **attorney as follows; to obtain and occupying the shop room and to possess and hold the shop room from KSRTC for conducting business therein** . The above Clause is in clear violation of Clause 20 of Exhibit P2 licence deed. That apart, the power of attorney Mr.K.Jayakumaran submitted a representation to the 4th respondent requesting to transfer the licence in his name. True copy of the representation submitted by the power of attorney Mr.K.Jayakumaran to the 4th respondent dated 20.01.2019 is produced herewith and marked as **Exhibit R1(a)** . Exhibit R1(a) shows that petitioner Mr.Vijayan Nair transferred his right to power of attorney holder Mr.Jayakumaran and the power of attorney holder demanding renewal of licence in his name. It is only a licence and it is a personal right and it cannot be transferred as stipulated in section 56 of the Easement Act. 6. I respectfully submit that there is a change of policy decision of KSRTC in the matter of renewal of licence to the existing stall holders. Kerala State Road Transport Corporation is having more than 92 dipots and station master office in the State and there are large number of rooms and stall in the said ## **W.P.(C)No.3853 of 2019** ## **:-7-:** bus stations. Since the KSRTC going through stringent financial crises for payment of pensionery benefits etc. Therefore in order to achieve maximum income, KSRTC has taken decision that fresh tender has to be invited for granting license if 3 year period is over for the licence. True copy of terms and conditions for granting license for the stalls in the KSRTC bus stations issued by the 1st respondent dated 7.12.2017 is produced herewith and marked as **Exhibit R1(b)** . When Exhibit R1(b) order has been issued by the 1st respondent, several other stall holders approached this Hon'ble Court for a direction for renewal of their licence and this Hon'ble Court was pleased dismiss the Writ Petitions, permitting the KSRTC to conduct tender for the granting of licence. True copy of the judgment dated 05.04.2018 in W.P.(C)No.3635 of 2018 of this Hon'ble Court is produced herewith and marked as **Exhibit R1(c)** . 7. I respectfully submit that in pursuance to Exhibit R1(b) circular, tender has been conducted in respect of 92 stalls in which 3 years licence period is over and the petitioners got substantial increase in the ## **W.P.(C)No.3853 of 2019** ## **:-8-:** monthly licence fee. Rs.25,37,856/- was received from 92 stall as monthly licence fee prior to Exhibit R1(b) new tender conditions. Where as when auction was conducted in respect of 92 stalls pursuance to Exhibit R1(b) tender conditions the monthly licence fee has been increased as Rs.47,08,708/-. Therefore there is an increase of Rs.21,70,852/- ie 86% increase of monthly licence fee for 92 stalls only. True copy of the statement showing the details of monthly license fee received from 92 stalls before and after the implementation of Exhibit R1(b) circular is produced herewith and marked as **Exhibit R1(d)** .” 5. The petitioner has filed a reply affidavit dated 4.3.2019. 6. Heard the learned counsel for the petitioner and also the learned Standing Counsel for KSRTC representing respondents 1 to 4. 7. Along with the counter affidavit filed by the respondents, a representation dated 20.1.2019 of Jayakumaran, the power of attorney holder of ## **W.P.(C)No.3853 of 2019** **:-9-:** Vijayan Nair, addressed to the 4th respondent Assistant Transport Officer is placed on record, wherein the power of attorney holder has admitted that Vijayan Nair has transferred his right over shop room No.30 at Thiruvananthapuram City Unit Shopping Complex of KSRTC to Kunjan, the father of Jayakumaran, after accepting consideration. 8. As pointed out by the learned Standing Counsel for KSRTC, clause (2) of Ext.P3 power of attorney provides as follows; “2. To obtain and occupy the shop room and to possess and hold the shop room from K.S.R.T.C. for conducting business therein.” 9. Therefore, as borne out from the materials on record, the shop room in question was in the possession of Kunjan, the father of Jayakumaran, till his death and now that shop is run by Jayakumaran, who is the power of attorney holder of the original licencee. The petitioner has filed ## **W.P.(C)No.3853 of 2019** **:-10-:** this writ petition before this Court on 7.2.2019, few days after submission of Ext.R1(a) dated 20.1.2019 to the 4th respondent Assistant Transport Officer, wherein Jayakumaran has admitted that Vijayan Nair, the licensee, has transferred his right over the shop room in question to Kunjan. Suppressing that material fact, Jayakumaran, on the strength of Ext.P3 power of attorney, has filed this writ petition, by contending that, in view of that power of attorney, the respondent cannot insist that Vijayan Nair, the licensee, should appear in person before the Chairman and Managing Director of KSRTC to execute fresh agreement. 10. 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 ## **W.P.(C)No.3853 of 2019** **:-11-:** 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. 11. 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 ## **W.P.(C)No.3853 of 2019** ## **:-12-:** 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 appellant-Company 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 ## **W.P.(C)No.3853 of 2019** ## **:-13-:** 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 made 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 out that the facts have not been fully and fairly stated to ## **W.P.(C)No.3853 of 2019** ## **:-14-:** it, the Court will set aside, any action which it has taken on the faith of the imperfect statement." (Emphasis supplied) 12. 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 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. ## **W.P.(C)No.3853 of 2019** **:-15-:** 13. Viewed in the light of the law laid down in the decision referred to supra, conclusion is irresistible that the petitioner, who has approached this Court with unclean hands, suppressing material facts from the notice of this Court, is not entitled for any relief in exercise of the writ jurisdiction of this Court under Article 226 of the Constitution of India. In the result, this writ petition fails and the same is accordingly dismissed. Sd/- **ANIL K.NARENDRAN JUDGE** ami/ ## **W.P.(C)No.3853 of 2019** ## **:-16-:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE ORDER DATED 21-04-2004 ISSUED ON BEHALF OF 1ST RESPONDENT.** **EXHIBIT P2** **TRUE COPY OF THE LICENSE DEED DATED 0505-2004.** **EXHIBIT P3** **TRUE COPY OF THE POWER OF ATTORNEY DATED 09-07-2002.** - **EXHIBIT P4** **TRUE COPY OF THE NOTICE DATED 16-01-2019 ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P5** - **TRUE COPY OF THE RECEIPT DATED 05-012019 ISSUED BY 1ST RESPONDENT.** **EXHIBIT P6 TRUE COPY OF THE HEARING NOTICE DATED 30-01-2019 ISSUED BY HEALTH OFFICER, THIRUVANANTHAPURAM CORPORATION.** **EXHIBIT R1(a) TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE POWER OF ATTORNEY MR.K.JAYAKUMARAN TO THE 4TH RESPONDENT DATED 20.1.2019** **EXHIBIT R1(b)** **TRUE COPY OF TERMS AND CONDITIONS FOR GRANTING LICENSE FOR THE STALLS IN THE KSRTC BUS STATIONS ISSUED BY THE 1ST RESPONDENT DATED 7.12.2017** - **EXHIBIT R1(c)** **TRUE COPY OF THE JUDGMENT DATED 5.4.2018 IN WPC NO.3635 OF 2018 OF THIS COURT** **EXHIBIT R1(d)** **TRUE COPY OF THE STATEMENT SHOWING THE DETAILS OF MONTHLY LICENSE FEE RECEIVED FROM 92 STALLS BEFORE AND AFTER THE IMPLEMENTATION OF EXHIBIT R1(a) CIRCULAR.**