Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK W.P.(C) No. 12599 OF 2017 In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950. --------------- Susanta Kumar Gouda and Saroj Kumar Gouda sons of Late Gopinath Gouda residing at Plot No.D/103, Sriram Vihar, Nayapalli Bhubaneswar Khordha – 753 012 … Petitioners -VERSUS- State of Odisha represented by the Secretary Department of General Administration Odisha Secretariat, Bhubaneswar and Others … Counsel appeared for the parties: Opposite Parties For the Petitioners : M/s. Ananta Narayan Pattanayak, Paresh Kumar Mohanty, Niranjan Das, and S. Mahakuda, Advocates For the Opposite Parties : Sri Jyoti Prakash Patnaik, Government Advocate for the opposite parties W.P.(C) No.12599 of 2017 Page 1 of 49 P R E S E N T: THE HONOURABLE DR. JUSTICE B.R. SARANGI AND THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing: 22.06.2023 :: Date of Judgment: 27.06.2023 MURAHARI SRI RAMAN, J.— Assailing the Order dated 20th May, 2017 passed by the learned Additional District Magistrate, Bhubaneswar in Revision Case No.201 of 1981 vide Annexure-12 in exercise of powers conferred under Section 7A(3) of the Odisha Government Land Settlement Act, 1962 (for brevity hereinafter referred to as “OGLS Act”), whereby lease of land measuring Ac.2.000 decimals bearing Plot No.2723 under Khata No.805 in Mouza: Andharua, Bhubaneswar as granted in favour of Late Manorama Gouda, vide Order dated 31.10.1978 of the Tahasildar in W.L. Case No.1002 of 1978 was directed to be cancelled, the petitioners, sons of original lessee-Manorama Gouda, approached this Court by way of filing writ petition under Article 226/227 of the Constitution of India with the following prayers: “It is, therefore, prayed that this Hon’ble Court may be graciously pleased to issue a rule Nisi calling upon the opp. parties to show cause as to why— (i) The order dated. 20.05.2017 in Revision Case No. 201 of 1981 (Under Annexure-12) passed by the W.P.(C) No.12599 of 2017 Page 2 of 49 learned A.D.M, Bhubaneswar (Opp. Party No.3) shall not be quashed being declared as illegal and arbitrary. (ii) A specific direction shall not be issued the learned A.D.M, Bhubaneswar (Opp. Party No.3) to settle the lease land in favour of the petitioners as per Orissa Government Land Settlement Act. (iii) If the Opposite Parties fail to show cause and or show insufficient cause writ application may be allowed by directing the Additional District Magistrate, (Opposite Party No.3) to settle the lease land in favour of the present Petitioners and prepare the Record-of-Right in the name of the Petitioners. (iv) And/or to pass such other order/Order(s)/ direction/direction(s) as deem fit and proper shall not be granted.” FACTS OF THE CASE AS NARRATED BY THE PETITIONERS AND REVEALED FROM THE DOCUMENTS FORMING PART OF THE WRIT PETITION: 2. It has been outlined by the writ petitioners that on consideration of application of their mother, Late Manorama Gouda, described as a landless agricultural labourer, for settlement of Government land in the Village: Andharua, Bhubaneswar the Tahasildar after causing enquiry through Revenue Inspector, Chandaka and inviting public objection, in the year 1978 passed Order dated 31.10.1978 in W.L. Case W.P.(C) No.12599 of 2017 Page 3 of 49 No.1002 of 1978 settling land to the extent of Ac.2.000 dec. in Plot No.2723 under Khata No.805 in Andharua Mouza for agriculture purpose on free of salami. 2.1. However, while the lessee-Late Manorama Gouda was possessing the said land, the learned Additional District Magistrate initiated proceeding being Revision Case No.201 of 1981 invoking power for revision vested under Section 7A(3) of the OGLS Act on the ground that “Government land has been settled by the Tahasildar under a mistake of fact/owing to fraud/ misrepresentation/on account of material irregularity of procedure”. The learned Additional District Magistrate set aside the Order dated 31.10.1978 of the Tahasildar and cancelled the lease by an Order dated 16.02.1982. 2.2. Aggrieved by said Order dated 16.02.1982, a writ petition being O.J.C. No.1815 of 1990 was preferred
Decision
before this Court which came to be disposed of in the following lines vide Order dated 16.12.1992: “*** That apart, the order-sheet annexed as Annexure-5 would reveal that there has been no valid service of notice and yet the final order of cancellation has been passed. Learned Additional Government Advocate appearing for the opposite parties fairly conceded to the aforesaid position. Under Section 7A(3) of the Act, no order of cancellation can be passed unless the person affected by the proposed order has been given a W.P.(C) No.12599 of 2017 Page 4 of 49 reasonable opportunity of being heard in the matter has been afforded to the petitioners and consequently the impugned order is vitiated on account of infraction of the proviso to Section 7A(3) of the Act as well as on account of the fact that there has been gross violation of the principles of natural justice. We accordingly set aside the order of the Additional District Magistrate may serve a copy of the notice upon the petitioners indicating the detailed grounds of irregularity or fraud or misrepresentation material committed by the petitioners, requiring the petitioners to file their show-cause in respect of the same and thereafter shall proceed with the matter in accordance with law. The writ applications are accordingly disposed of with the aforesaid directions.” 2.3. After the death of Manorama Gouda on 02.04.2004, the petitioners, her sons, approached this Court by way of another writ application being W.P.(C) No.5768 of 2016 with a prayer to direct the Additional District Magistrate for disposal of Revision Case No.201 of 1981 within stipulated period. This Court vide Order dated 06.04.2016 directed the said Authority to dispose of said revision case “within a period of two months from the date of production of the certified copy of the order” since the matter was pending since 1981. W.P.(C) No.12599 of 2017 Page 5 of 49 2.4. Pursuant to such direction and in order to comply the order of this Court, the learned Additional District Magistrate after affording due opportunity of hearing to the petitioners, concluded the proceeding in Revision Case No.201/1981 and passed the following Order dated 20.05.2017 (Annexure-12) [for brevity, relevant portions of the order is extracted herein below]: “Heard the learned advocate on behalf of the opposite parties. *** With a view to examining the genuineness and legality of the Lease, it requires to go into details of the concerned lease case. On perusal of the WL Case No 1002/1978 wherein the land was settled in favour of the OP, it is noticed that the lease case record was processed on 10.08.1978 basing on the application for settlement of land filed by Smt. Manorama Gouda of village Andharua. On 10.08.1978, the Tahasildar, Bhubaneswar initiated the lease case record and issued istahar inviting public objection with instructions to the Revenue Inspector, Chandaka to enquire and report on this matter alongwith sketch map. *** From the above order, it is clear that the eligibility aspect of the lessee for availing Govt. land in lease, has not been verified before passing such order, wherein two acres of valuable Government land at the vicinity of Bhubaneswar Municipal Corporation area is settled. W.P.(C) No.12599 of 2017 Page 6 of 49 Before settlement of Government land on lease, the Tahasildar must have to examine the following aspects as per the provisions of Odisha Land Settlement Act and Rules: (i) Whether the applicant is a landless agricultural labourer; (ii) If he or she is eligible for such lease as per his or her income; (iii) Whether the applicant belongs to the village or neighbouring Village where the land is to be leased out in his/her favour; (iv) Whether the land is leasable or not; (v) Compliance of other legal procedures as envisaged under OGLS Act and rule like proper proclamation of notice. (i) As per the provisions under 3(3)(b) of O.G.L.S. Act 1962, settlement of land for agricultural purpose will be made in favour of any landless agricultural labourers of the village in which the land is situated or in neighbouring village. The lessee did not belong to village Andharua or any neighbouring village where the case land had been leased out in her favour. She belonged to village Asuraipalli, P:S: Aska in Ganjam District. The R.I. in his enquiry report had also mentioned that the lessee did not come within the revenue circle area. Neither the RI nor the Tahasildar, had enquired about the extent of landed property the lessee owned or possessed before settlement of W.P.(C) No.12599 of 2017 Page 7 of 49 the lease. No other report in that support is available with the case record. Since no report as regards the landed property of the lessee was submitted by the Revenue Inspector nor any report to that effect was made available with the case record, the decision taken by the Tahasildar, to consider the applicant as a landless person is not correct and justified without having any evidence. the Revenue Inspector nor (ii) Another important aspect needs to be examined before sanction of lease is the eligibility of the applicant on the basis of Income. During enquiry, the neither Tahasildar, had ascertained anywhere as regards the income of the lessee. In the lease settlement order also, nothing as regards income of the family of the lessee has been mentioned. lease without examination of this aspect does not seem to be proper and in conformity with the provisions of law, the then in force. Settlement of (iii) As per the provisions of O.G.L.S. Act, the lease needs to be settled in favour of agricultural labourer of the village, in which the land is situated or in neighbouring village. The lessee in the instant case belongs to Ganjam District whereas the lease has been settled in her favour under Bhubaneswar Tahasil. So there has been gross violation of the provisions of O.G.L.S. Act while settlement of lease in favour of the O.P. Andharua village at (iv) As regards eligibility of land for the purpose of lease, the Tahasildar has properly verified and the W.P.(C) No.12599 of 2017 Page 8 of 49 R.I. in his report has categorically mentioned that the land is free from encroachment having no forest growth over it. So no irregularity or illegality is noticed as regards the nature of the land for the purpose of lease. (v) As per the provisions of Rule 5(5) of O.G.L.S. Rules, a copy of the proclamation shall be published by affixing in the notice board of Tahasil Office and Gram Panchayat Office. No evidence in support of affixing the copy of notice in Tahasil Office and Gram Panchayat Office Notice Board for wide publicity is available. It is therefore revealed that the procedure for proclamation of notice as laid down under the Rules has not been adhered to, while deciding the lease case in favour of the lessee. (vi) The case land is situated just at the periphery of Bhubaneswar Municipal Corporation area which comes under the CDP area of Bhubaneswar Development Authority. Bhubaneswar City being the State Capital has enough scope for expansion in the course of development and as such Tahasildar, Bhubaneswar, as the custodian of Government land should keep the big patches of land at convenient locations, reserved for future development. But here Tahasildar had taken resort to settlement of big patches of valuable of private individuals, without thinking a little on preservation of land for the purpose of expansion of the city & future development. favour land in In view of the above discussion, it is observed that, the Tahasildar, Bhubaneswar has not examined all the W.P.(C) No.12599 of 2017 Page 9 of 49 parameters, as laid down under Odisha Government Land Settlement Act and Rules while settling the lease of the case land in favour of the lessee. As such, the lease, of the case land involves certain material irregularity, legal deformity and procedural lapses. Hence, the lease of the case land is cancelled. Send a copy of this order alongwith L.C.R. to the Tahasildar, Bhubaneswar for necessary correction.” 2.5. The petitioners, sons of Late Manorama Gouda, challenged aforesaid order in suo motu revision proceeding by way of petition invoking provisions of Article 226/227 of the Constitution of India inter alia on the following grounds: i. After observing due process inviting objection and publication of notice, the Tahasildar having granted lease in the year 1978, the same could not be cancelled by way of suo motu revision proceeding purported to have been initiated under Section 7A of the OGSL Act. ii. The original lessee-Manorama Gouda, belonging to backward class and a landless person, lived on the leasehold land as granted by the Tahasildar till she breathed her last on 02.04.2004, as such the finding of the Additional District Magistrate that she did not belong to the area in which the land is situated or of any neighbouring village is contrary to material available on record. W.P.(C) No.12599 of 2017 Page 10 of 49 iii. Despite the fact that there was requirement to find out whether Manorama Gouda was a raiyat; her annual income stood below the prescribed limit at the relevant point of time; and the plot allotted was “kept reserved for tenants” belonging to “backward class and landless agricultural labourer”, the decision of the Tahasildar in granting lease of the land in question could not be said to have been faulted with. OBJECTION OF THE OPPOSITE PARTY NOS.3 AND 4 BY WAY OF COUNTER-AFFIDAVIT: 3. Supporting the Order dated 20.05.2017 passed in Revision Case No.201 of 1981 by the Additional District Magistrate, it is reiterated that as the lessee- Manorama Gouda, being of the Village: Asuraipalli in the District: Ganjam within the Balisira Revenue Circle of Aska Tahasil, did not belong to the locality (Bhubaneswar) where the land in question is situated, which fact could come to fore on due enquiry being made from Tahasildar, Aska in Ganjam District. Furthermore, no evidence was available on record of the Tahasildar of Bhubaneswar with regard to her annual income at the relevant point of time. 3.1. Relying on the decisions, namely Laxmipriya Tripathy Vrs. State, W.P.(C) No.3749 of 2013, vide Judgment dated 07.08.2013 reported at 2013 SCC OnLine Ori W.P.(C) No.12599 of 2017 Page 11 of 49 215 and Asha Hans Vrs. State of Odisha, W.P.(C) No.33349 of 2011 &c., vide Judgment dated 06.04.2022, it is submitted by the opposite parties that land was settled with the lessee in clear violation of the provisions of the OGLS Act with the fraud being played by the petitioners upon the Court, no interference in the present case is warranted. REJOINDER AFFIDAVIT OF THE PETITIONERS: 4. Enclosing copy of Legal Heir Certificate, dated 08.02.2004 issued by the Tahasildar, Bhubaneswar, the petitioners claimed that they, being sons of Late Manorama Gouda, are the legal heirs. 4.1. It is submitted that consequent upon direction to afford opportunity to adduce evidence vide Judgment dated 18.12.1992 rendered by this Court in the case of Sankar Charan Patra & Others, O.J.C. No.2421 of 1990, etc., etc., similarly circumstanced persons have been granted lease in the village: Andharua, Bhubaneswar by virtue of Order dated 28.08.2005 of the Additional District Magistrate. ARGUMENTS ADVANCED BY COUNSEL FOR THE RESPECTIVE PARTIES: 5. Sri Ananta Narayan Pattanayak, learned Advocate appearing for the petitioners reiterating the stand taken in the writ petition, contended that there was no W.P.(C) No.12599 of 2017 Page 12 of 49 jurisdiction vested in the Additional District Magistrate to initiate proceeding for suo motu revision of the lease granted in 1978. The Tahasildar having followed the essential procedure envisaged under the OGLS Act and rules framed thereunder, there was no scope for the authority to exercise power under Section 7A(3) of the OGLS Act. It is vehemently contested by urging that Late Manorama Gouda after her marriage with Gopinath Gouda left Asuraipalli in Ganjam District and both came to stay in Andharua, Bhubaneswar in the year 1960. To buttress such contention, he has referred to copy of document showing one of the petitioners, namely Susanta Kumar Gouda passed High School Certificate Examination as ex-Regular candidate in the year 1986 from Government Boys’ High School, Unit-8, Bhubaneswar. Sri Ananta Narayan Pattanayak, learned Advocate laid emphasis on the averments contained in paragraph-7 of the Rejoinder-affidavit sworn to by Susanta Kumar Gouda-petitioner No.1, which is to the following effect: “*** It is submitted that original lessee after being settled in village Andharua were working as daily labourer and maintaining their livelihood with that earning. It is a fact that though the original lessee was a landless person and there is no shelter over their head she applied for a piece of land on lease before the Tahasildar, Bhubaneswar in the year 1978. ***” W.P.(C) No.12599 of 2017 Page 13 of 49 5.1. Sri Jyoti Prakash Patnaik, learned Government Advocate appearing for the opposite parties, in order to demolish such an argument of the advocate for the petitioners, submitted that mere contention that Late Manorama Gouda was “daily labourer” would not suffice for consideration of grant of lease under Section 3 of the OGLS Act. Rather, as per pre- amended provision contained in Section 2(b-1) of the OGLS Act, the applicant-intending lessee was required to demonstrate that she was “a landless agricultural labourer” who had “no profitable means of livelihood other than agriculture”. 5.2. The learned Government Advocate Sri Jyoti Prakash Patnaik drew attention of this Court to the Order dated 04.01.2023 and Order dated 13.01.2023 passed in the instant writ petition: “04.01.2023 *** 2. Perused impugned order. Of the reasons for cancellation we find, two of them were that original allottee was not a resident of the locality but resident of district Ganjam and secondly, income status had not been inquired into by the Revenue Inspector at the time of granting the allotment. *** 13.01.2023 W.P.(C) No.12599 of 2017 Page 14 of 49 1. Mr. Pattanayak, learned advocate appears on behalf of petitioners and draws attention to order dated 4th January, 2023. Mr. Rout, learned advocate, Additional Standing Counsel appears on behalf of State and with reference to aforesaid order submits, enquiry report has been received regarding residence of original allottee. He serves copy of enquiry report dated 7th January, 2023 to Mr. Pattanayak.” 5.3. Enclosing such enquiry report to the counter-affidavit dated 23.01.2023 filed by the opposite party Nos.3 and 4, the learned Government Advocate pressed into service the following text contained in said report of the Revenue Inspector, Balisira: “With reference to your above order, I am to submit the inquiry report regarding the status of Domicile/Nativity/ Resident, as per your direction. I put field inquiry in Asuraipalli Mouza and also verified the record it revealed as follows: Manorama Gouda W/o: Gopinath Gouda is a native resident of village Asuraipalli, but now she resides at Bhubaneswar. Her husband is a recorded tenant of mouza Asuraipalli i.e. Khata No: 64, plot No. 725, Area:0.054 Ac. The local statement of the villagers is enclosed here with for your kind information and necessary action.” 5.4. Enclosing said report, the Tahasildar, Aska of Ganjam District communicated it to the Tahasildar, Bhubaneswar vide Letter No.73, dated 07.01.2023 by stating thus: W.P.(C) No.12599 of 2017 Page 15 of 49 Confirmation of nativity of one Late Manorama Gouda W/o Gopinath Gouda of Village- Asuraipalli, P.S.- Aska in the District of Ganjam in connection with W.P.(C) No.12599/2017. “Sub.: *** In inviting a reference to the letter on the subject cited above, I am to inform that the fact of nativity of above- named person is verified in the field through the Revenue Inspector, Balisira of this Tahasil and it is reported that Smt. Monarama Gouda and her family are native of village- Asuraipalli under Balisira RI Circle of this Tahasil on verification of RoR of the said village. Further RI, Balisira has reported that Smt. Gouda belongs to village Asuraipalli and a dilapidated house of Smt. Gouda is present in the said village as she has left Asuraipalli since long days back as evident from the local statement attached to the report of the RI Balisira. The report of RI, Local Statement of villagers and copy of the RoR in the name of the husband of Smt. Gouda are enclosed herewith for ready reference.” 5.5. Sri Jyoti Prakash Patnaik, learned Government Advocate vehemently opposing the contention and averment of Sri Ananta Narayan Pattanayak, learned Advocate for the petitioners urged that having not placed any material before the learned Additional District Magistrate after being given scope by virtue of W.P.(C) No.12599 of 2017 Page 16 of 49 Order dated 16.12.1992 passed in O.J.C. No.1815 of 1990, to the effect that at the material period Late Manorama Gouda fell within the definition of “landless agricultural labourer” as envisaged under Section 2(b- 1) of the OGLS Act so that she was entitled to claim settlement of Government land in terms of Section 3. 5.6. Advancing further argument the learned Government Advocate submitted that the writ petition is incompetent for non-joinder of necessary and proper parties. Having not impleaded other legal heirs, as is manifest from the Legal Heir Certificate (Annexure-14) enclosed to the Rejoinder-affidavit dated 05.05.2023 filed by the petitioners, the writ petitioners have played fraud on the Court, as such the writ petition is liable to be dismissed with exemplary cost. CONSIDERATION OF RIVAL CONTENTIONS AND ARGUMENTS: 6. From the pleadings it is manifest that the petitioners have not denied that their father is “recorded tenant” of Plot No.725, Khata No.64 measuring area Ac.0.054dec. in Mouza Asuraipalli in the district of Ganjam, which fact emanates from the report of the Revenue Inspector of Balisira Circle submitted in compliance of Order of this Court in the present writ petition. Copy of report being confronted to the petitioners, pursuant to which they have filed rejoinder dated 05.05.2023. To support the said fact W.P.(C) No.12599 of 2017 Page 17 of 49 contained in the report, copy of Record-of-Right published on 22.04.1999 is placed on record by the opposite parties which shows that landed property stands in the name of Gopinath Gouda, the father of the petitioners, indicating landed property is situated at Asuraipalli Mouza under Aska P.S. in the District: Ganjam. Therefore, the petitioners’ claim of being “landless person” is not only false but also appears to be fabricated. 6.1. Delving further into the matter, it is revealed that no scrap of document is adduced to show that the case of Manorama Gouda fell within the scope of the term “landless agricultural labourer” as defined in Section 2(b-1) of the OGLS Act. For better understanding, said definition, as it existed prior to amendment in 1990, is reproduced herein below: “(b-1) ‘LANDLESS AGRICULTURAL LABOURER’ means a person who has no profitable means of livelihood other than agriculture and who owns no land excluding his homestead.” 6.2. It is well-settled in Krushna Chandra Pattanayak Vrs. Additional District Magistrate, 90 (2000) CLT 877 that “the aforesaid pre-amended provision shows that the applicant must be a landless agricultural labourer who has no profitable means of livelihood other than agriculture”. None of the documents enclosed to the W.P.(C) No.12599 of 2017 Page 18 of 49 writ petition demonstrates that at any point of time when the application for settlement of Government land was made, Late Manorama Gouda was not only “landless”, but also she was “agricultural labourer”. Further the pleadings fall short of fact that “other than agriculture” she had no “profitable means of livelihood”. The petitioners have filed Rejoinder- affidavit dated 05.05.2023 by affirming the following fact: “7. *** It is submitted that original lessee after being settled in village Andharua were working as daily labourer and maintaining their livelihood with that earning.” Further perusal of record, it is glaring from paragraph 4 of the further affidavit dated 07.02.2023 filed by the petitioners that “the original lessee after being settled in village Andharua were working as daily labourer and maintaining their livelihood with that earning”. The petitioners have stated in their affidavit that “the original lessee was a landless person”. Hence, it is undoubted that Late Manorama Gouda was earning her livelihood as “daily labourer”, but not “agricultural labourer”. Mere averment that Late Manorama Gouda was “landless person” does not satisfy the eligibility criteria envisaged under Section 2(b-1) for settlement of Government land under Section 3 of the OGLS Act. W.P.(C) No.12599 of 2017 Page 19 of 49 6.3. Late Gopinath Gouda, shown as husband of Late Manorama Gouda in the Legal Heir Certificate issued in the year 2004, has landed property at Asuraipalli under Aska P.S. of Ganjam District as per copy of Record-of-Right, which was published in the year 1999, enclosed to counter-affidavit of the opposite parties. For convenience, paragraph 10 of the counter- affidavit is extracted herein below: that, lessee the original “10. That in response to the said query the Tahasildar Aska conducted enquiry through R.I., Balisira Circle and reported vide Letter No.73 dtd. 07.01.2023 late Manorama Gouda W/o. Gopinath Gouda was a native of Village: Asuraipalli under Balisira R.I. Circle of Aska Tahasil and her family ordinarily resides there. This is also evident from the address mentioned in RoR of the said village. Thus, it is amply clear that the original lessee was not at all a native of village Andharua under Bhubaneswar Tahasil at the time of Settlement of lease. Further, the lessee owns land to the extent of Ac.1.000 at her native place. So, it shows that the lessee was not landless person at the time of settling of lease in her favour which is a gross violation to the provision of OGLS Act. The report of the Tahasildar, Aska along with its enclosure are annexed herewith as Annexure-A/4.” The fact as narrated in paragraph 10 of the counter- affidavit filed by the opposite parties has not been disputed nor denied by the petitioners in the W.P.(C) No.12599 of 2017 Page 20 of 49 Rejoinder-affidavit dated 05.05.2023 save and except saying that “the original lessee Smt. Gouda and her family members have already left the paternal village since long and settled in Mouza Andharua and thereafter they have no connection or connectivity with the parental village since time immemorial”. This Court on examination of documents is of the considered opinion that the petitioners have made misleading and false statement before this Court by contending in the Rejoinder-affidavit that Gopinath Gouda and Manorama Gouda “have left the parental village and district since long, i.e. in the year 1960 and permanently settled in Mouza Andharua, Bhubaneswar” is misleading and misstatement of fact inasmuch as the petitioners have not objected to the existence of entries in the Record-of-Right published in the year 1999 standing in the name of Gopinath Gouda in Asuraipalli under Aska P.S. of Ganjam District. 6.4. Further fact that non-joinder of necessary and proper party would lead to hold that the petitioners have played fraud not only on the Court but also the authorities. It is evident from the copy of the Legal Heir Certificate issued only for the purpose of “Bank Dues” in the year 2004 that besides the petitioners, sons of Late Gopinath Gouda and Late Manorama W.P.(C) No.12599 of 2017 Page 21 of 49 Gouda, two other legal heirs namely Snehanjali Gouda and Geetanjali Gouda are available. On specific query from this Court as to why other two legal heirs were left from being impleaded as parties, the learned Advocate for the petitioners could not give any reply. The position of their appearance before the Additional District Magistrate in the proceeding for revision could also not be clarified by said Advocate. It is also very queer to notice that an enquiry report enclosed to Letter No.7789, dated 26.05.2016 issued by the Tahasildar, Bhubaneswar forming part of writ petition at Annexure-10 shows that the Revenue Inspector noted down that Sri Saroj Kumar Gouda-petitioner No.2 is an “Advocate”. The conduct of the petitioners is tell-tale. It is their own document which discloses about other legal heirs. Being sisters of the petitioners, this Court feels that they are necessary parties. The petitioners’ concerted effort to grab valuable property situated at densely populated area of Capital City of Bhubaneswar shows that they have not approached this Court with clear heart and clean hand, but with poisoned mind. LEGAL POSITION AS TO INVOCATION OF WRIT JURISDICTION AGAINST THE MISSTATEMENT AND MISLEADING OF MATERIAL FACT AND CONSCIOUS OMISSION OF THE PETITIONERS TO IMPLEAD NECESSARY PARTIES: W.P.(C) No.12599 of 2017 Page 22 of 49 7. Therefore, question that arises in this writ petition is whether sitting in its writ jurisdiction, this Court should take note of the material suppression by the writ petitioners and dismiss this writ petition. It is trite law that a petitioner has to come with clean hands and has to disclose the relevant materials and act in good faith. Any departure from the same may lead to a dismissal of a writ petition at the very threshold. 7.1. At this juncture, this Court, therefore, embarks on examination of the terms “fraud”, “fraudulent concealment” and the necessity of approaching this Court with clean hands, clear mind and clear heart. 7.2. ‘Fraud’, according to Black’s law Dictionary, 10th Edition, is knowing misrepresentation or knowing concealment of a material fact made to induce another to act to his or her detriment; a reckless misrepresentation made without justified belief in its truth to induce another person to act; a tort arising from a knowing or reckless misrepresentation or concealment of material fact made to induce another to act to his or her detriment. 7.3. “Fraudulent concealment” as defined in Black’s law Dictionary, 10th Edition, is the affirmative suppression or hiding, with the intent to deceive or W.P.(C) No.12599 of 2017 Page 23 of 49 defraud, of a material fact or circumstance that one is legally (or, sometimes, morally) bound to reveal. 7.4. According to the Law Lexicon, Third Edition (2012), the Latin Maxim “suppressio veri, suggestio falsi” defines that the suppression of the truth is equivalent to the suggestion of falsehood. The suppression or failure to disclose what one party is bound to disclose to another, may amount to fraud. Where a person is found to be guilty of suppressio veri suggestio falsi for having concealed material information from scrutiny of the Court, he is not entitled for any equitable relief. [Refer, Arbind Kumar Pal Vrs. Hazi Md. Faizullah Khan, AIR 2007 (NOC) 1035 (Pat) = (2006) 1 BLJR 430]. 7.5. The maxim that one who comes to Court must come with “clean hands” is based on conscience and good faith. The maxim is confined to misconduct in regard to, or at all events connected with, the matter in litigation. “Clean hands” means a clean record with respect to the transaction with the defendant, and not with respect to any third person. 7.6. In The King Vrs. Williams and Others, (1914) 1 KB 608 it has been pointed out that: “*** In my view the writ is discretionary. A party may by his conduct preclude himself from claiming the writ ex debito justitiae, no matter whether the proceedings W.P.(C) No.12599 of 2017 Page 24 of 49 which he seeks to quash are void or voidable. If they are void it is true that no conduct of his will validate them; but such considerations do not affect the principles on which the Court acts in granting or refusing the writ of certiorari. This special remedy will not be granted ex debito justitiae to a person who fails to state in his evidence on moving for the rule nisi that at the time of the proceedings impugned he was unaware of the facts on which he relies to impugn them.” 7.7. It is axiomatic that any petitioner seeking a writ of mandamus, has to approach the court with clean hands and to produce before the court all material facts that are relevant for adjudication of the said matter. The principle of uberrima fides— abundant good faith— as stated in The King Vrs. The General Commissioners for the purposes of the Income Tax Acts for the District of Kensington, (1917) 1 KB 486, that a petitioner who does not bring on record the relevant true facts before the court, does not deserve to get any relief from the court, has application to the present context. 7.8. In S.J.S. Business Enterprises (P) Ltd. Vrs. State of Bihar and others, (2004) 7 SCC 166 suppression of material fact by a litigant disqualifies such litigant from obtaining any relief. The relevant portion is reproduced below: W.P.(C) No.12599 of 2017 Page 25 of 49 litigant litigant disqualifies such “13. As a general rule, suppression of a material fact from by a obtaining any relief. This rule has been evolved out of the need of the courts to deter a litigant from abusing the process of court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material from the consideration of the court, whatever view the court may have taken.” 7.9. In Asiatic Engineering Co. Vrs. Achhru Ram and others, AIR 1951 Allahabad 746 (Full Bench), the Court observed that no relief can be granted in a writ petition under Article 226 which is based on misstatement or suppression of material facts. The Court observed in paragraph 51, at page 767 as follows: “51. In our opinion, the salutary principle laid down in the cases quoted above should appropriately be applied by Courts in our country when parties seek the aid of the extraordinary powers granted to the Court under Art. 226 of the Constitution. A person obtaining an ex parte order or a rule nisi by the means of a petition extraordinary powers under Art. 226 of the Constitution must come with clean hands, must not suppress any relevant facts from the Court, must refrain from making misleading statements and from giving incorrect information to the Court. Courts, for their own protection, should insist that persons these extraordinary powers should not attempt, in any manner, to misuse this for exercise of invoking W.P.(C) No.12599 of 2017 Page 26 of 49 valuable right by obtaining ex parte orders by suppression, misrepresentation or misstatement of facts.” 7.10. In Chancellor Vrs. Bijayananda Kar, AIR 1994 SC 579, the Supreme Court held that a writ petition is liable to be dismissed on the ground that the petitioner did not approach the Court with clean hands. 7.11. In Amar Singh Vrs. Union of India, (2011) 7 SCC 69, it has been observed as follows: “53. Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead initiated proceedings without full the courts, disclosure of facts. Courts held that such litigants have come with ‘unclean hands’ and are not entitled to be heard on the merits of their case. 54. In Dalglish Vrs. Jarvie, 2 Mac. & G. 231, 238, the Court, speaking through Lord Langdale and Rolfe B., laid down: ‘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 fact which he has omitted to bring forward.’ 55. In Castelli Vrs. Cook, 1849 (7) Hare, 89, 94, Vice Chancellor Wigram, same principles as follows: formulated the W.P.(C) No.12599 of 2017 Page 27 of 49 ‘A plaintiff applying ex parte comes under a contract with the Court that he will state the whole case fully and fairly to the Court. If he fails to do that, and the Court finds, when the other party that any the applies material fact has been suppressed or not property brought forward, the plaintiff is told that the Court will not decide on the merits, and that, as has broken faith with the Court, the injunction must go.’ to dissolve injunction, 56. In the case of Republic of Peru Vrs. Dreyfus Brothers & Company, 55 L.T. 802, 803, Justice Kay reminded us of the same position by holding: If there is an ‘*** important misstatement, speaking for myself, I have never hesitated, and never shall hesitate until the rule is altered, to discharge the order at once, so as to impress upon all persons who are suitors in this Court the importance of dealing in good faith with the Court when ex parte applications are made.’ 57. In one of the most celebrated cases upholding this principle, in the Court of Appeal in R. Vrs. Kensington Income Tax Commissioner, 1917 (1) K.B. 486 Lord Justice Scrutton formulated as under: it ‘and it has been for many years the rule of the Court, and one which is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte full and fair statement he should make a disclosure of all the material facts— facts, not law. He must not misstate the law if he can help it— W.P.(C) No.12599 of 2017 Page 28 of 49 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 that obligation is that if it finds out that the facts have 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.’ the Court enforces 58. the is one of It fundamental principles of jurisprudence that litigants must observe total clarity and candour their pleadings and in especially when it contains a prayer for injunction. A prayer for injunction, which is an equitable remedy, must be governed by principles of ‘uberrima fide’.” 7.12. In Rama Chandra Singh Vrs. Savitri Devi, (2003) 8 SCC 319 it is stated as follows: “15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well-known vitiates every solemn act. Fraud and justice never dwell together. 16. Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter. 17. It is also well settled that misrepresentation itself amounts innocent misrepresentations may also give reason to claim relief against fraud. Indeed, fraud. to W.P.(C) No.12599 of 2017 Page 29 of 49 18. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad. 19. In Derry Vrs. Peek, [1889] 14 A.C. 337, it was held: ‘In an action of deceit the plaintiff must prove actual fraud. Fraud is proved when it is shown that a false representation has been made knowingly, or without belief its truth, or recklessly, without caring whether it be true or false. in A false statement, made through carelessness and without reasonable ground for believing it to be true, may be evidence of fraud but does not necessarily amount to fraud. Such a statement, if made in the honest belief that it is true, is not fraudulent and does not render the person make it liable to an action of deceit.’ 20. In Kerr on Fraud and Mistake at page 23, it is stated: ‘The true and only sound principle to be derived from the cases represented by Slim Vrs. Croucher, (1860) 1 DeGF&J 518 is this: that a representation is fraudulent not only when the person making it knows it to be false, but also when, as Jessel, M.R., pointed out, he ought to have known, or W.P.(C) No.12599 of 2017 Page 30 of 49 must be taken to have known, that it was false. This is a sound and intelligible principle, and is, moreover, not inconsistent with Derry Vrs. Peek, (1889) 14 AC 337 = (1886-90) AllER Rep 1. A false statement which a person ought to have known was false, and which he must therefore be taken to have known was false, cannot be said to be honestly believed in. ‘A consideration of the grounds of belief’, said Lord Herschell, ‘is no doubt an important aid in ascertaining whether the belief was really entertained. A man’s mere assertion that he believed the statement he made to be true is not accepted as conclusive proof that he did so’.’ 21. In Bigelow on Fraudulent Conveyances at page 1, it is stated: ‘If on the facts the average man would have intended wrong, that is enough.’ It was further opined: in render view, will ‘This conception of fraud (and since it is not the writer’s, he may speak of it without diffidence), the steadily kept administration of the law less difficult, or rather will make its administration more effective. Further, not to enlarge upon the last matter, it will do away with much of the prevalent confusion in regard to ‘moral’ fraud, a confusion which, in addition to other things, often causes lawyers to take refuge behind such convenient and indeed useful but often obscure language as ‘fraud upon the law’. What is fraud upon the law? Fraud can be committed only against a being capable of W.P.(C) No.12599 of 2017 Page 31 of 49 rights, and ‘fraud upon the law’ darkens counsel. What is really aimed at in most cases by this obscure contrast between moral fraud and fraud upon the law, is a contrast between fraud in the individual’s intention to commit the wrong and fraud as seen in the obvious tendency of the act in question.’ 22. Recently this Court by an order dated 3rd September, 2003 in Ram Preeti Yadav Vrs. U.P. Board of High School & Intermediate Education & Ors. reported in (2003) 8 SCC 311 held: ‘13. Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by words or letter. Although negligence is not fraud but it can be evidence on fraud. (See Derry Vrs. Peek [1889] 14 A.C. 337). 14. In Lazarus Estate Vrs. Berly [1971] 2 W.L.R. 1149 = (1956) 1 QB 702 the Court of Appeal stated the law thus: ‘I cannot accede to this argument for a moment ‘no Court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything’. The Court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever.’ W.P.(C) No.12599 of 2017 Page 32 of 49 15. In Vrs. S.P. Chengalvaraya Naidu Jagannath, 1994 (1) SCC 1 this Court stated that judicial acts, ecclesiastical or temporal.’ fraud avoids all 23. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. 24. In Arlidge & Parry on Fraud, it is stated at page 21: ‘Indeed, to be the word sometime appears virtually synonymous with ‘deception’, as in the offence (now repealed) of obtaining credit by fraud. It is true that in this context ‘fraud’ included certain kind of conduct which did not amount to false pretences, since the definition referred to an obtaining of credit ‘under false pretences, or by means of any other fraud’. In Jones, for example, a man who ordered a meal without pointing out that he had no money was held to be guilty of obtaining credit by fraud but not of obtaining the meal by false pretences: his conduct, though fraudulent, did not amount to a false pretence. Similarly it has been suggested that a charge of conspiracy to defraud may be used where a ‘false front’ has been presented to the public (e.g. a and to business creditworthy when in fact it is neither) but there has been nothing so concrete as a false pretence. However, the concept of deception (as defined in the Theft Act 1968 ) is broader than that of a false includes a pretence (inter alia) reputable appears that be in it W.P.(C) No.12599 of 2017 Page 33 of 49 as misrepresentation defendant’s intentions; both Jones and the ‘false front’ could now be treated as cases of obtaining property by deception.’ the to 25. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata.