Abdul Karim and Others vs State and Others

Mansoor Ahmad Mir, J.—The Civil Miscellaneous Appeal is directed against the order dated 10th March, 2006 passed by Principal

District Judge, Srinagar, in the suit titled as Abdul Karim and Ors. v. State of J. & K. and Ors. whereby and where-under, application for grant of

ad-interim relief came to be dismissed, which shall be hereinafter referred to as impugned order.

It is useful to give a flash back of the case, the womb of which has given birth to the appeal in hand.

Appellants/plaintiffs filed a suit for, declaration declaring the plaintiffs as the exclusive owners and in possession of land measuring 2 Kanal 15

marlas under survey Nos. 526/min, 529/min and 551/min, situate at Gagribal, Srinagar and, Government order No. 1762 GD of 1982 dated 30th

July, 1982, hereinafter, referred to as impugned order, null and void, invalid, inoperative, in effective and illegal and, restraining the defendants from

causing any kind of interference with the possession and user of the suit land. Along with the suit, plaintiffs filed an application for grant of ad-

interim relief which came to be dismissed vide impugned order.

Plaintiffs have pleaded that they are in possession of the suit land continuously and uninterruptedly since 2nd Feb., 1944 and their continued

possession has ripen into the ownership. Defendants intend to install 3300/1100 KV Power Receiving and Transmission plant in the suit land which

is dangerous to the lives and properties of the plaintiffs and other neighbouring residents. In terms of the impugned Government order land

measuring 4 Kanals 5 marlas under khasra Nos. 526/min, 527/min and 551/min was sought to be transferred from Sericulture Department to

Power Development Department illegally. Plaintiffs came to know about the impugned government order in the month of April, 2004.

Defendant filed written statement and resisted the suit on the grounds which can be aptly and precisely summarized as under:

Plaintiffs 5 and 6, Mohammad Amin & Ishtiaq Ahmad, have filed two suits which are sub-judice before two civil Courts. Plaintiffs 3 and 4 had

filed writ petition OWP No. 1174/87 titled as Ab. Rashid and Anr. v. State and Ors. which came to be finally decided vide Judgment dated 12th

July, 1989. Plaintiffs 3 and 4 had also filed two suits which also came to be dismissed in default.

Moot question for consideration is whether the trial Court exercised the discretion rightly while passing the impugned order.

In order to determine the controversy, it is necessary to notice some of the facts herein as under:

Land measuring 4 kanals 5 marlas falling under survey Nos. 526/min, 527/min. and 551/min. including suit property belonged to the Sericulture

Department came to be transferred to Power Development Department for installation of receiving station in order to cater the need and

requirement of inhabitants of Buchwara Gagribal vide impugned order. It appears that construction/installation of said receiving station gave birth to

number of litigations and by one pretext or the other plaintiffs tried to stop the construction/restoration of the said receiving station. Plaintiffs 3 and

4, namely, Abdul Rashid and Mohammad Farooq filed OWP No. 1174/1987 which came to be dismissed by the Division Bench of this Court

vide judgment dated 12th July, 1989. It is apt to reproduce the relevant portion of the said judgment herein, which read as under:

We were also taken through the Master Plan of the Srinagar City, the perusal of which clearly shows in so far as the receiving stations are

concerned, that their installation fall within the permissible limits and it is specially mentioned that additional sites for such uses shall be allocated

from other land uses at desirable places in the City. In view of the public utility services it is not expected to restrain the respondents from

augmenting the resources for the supply of power to the citizens of the locality. We have also perused the report of the Commissioner and of the

Retired Superintending Engineer on which great emphasis is laid by learned Counsel for the petitioners and find that in view of the stand taken by

the respondents based on the Project Report of the Experts in the branch namely TATA Consulting Engineers Bombay which stood approved by

the Planning Commission and the Central Electricity Authority Govt. of India, the reports, if allowed will lose their significance and cannot be relied

on to restrain the respondents from installing the receiving stations at Buchwara, Srinagar. it is evident from the petition itself that between the

houses of the petitioners and the proposed installation of the receiving station there is a distance of about 27 feet intervening the road much more

the distance which is permissible under J. & K. Electricity Rules 1978, the maximum of which provided under Rule 80 of Clearance from the

building horizontally and vertically, is 12 feets. Even otherwise in so far as the easementary rights are concerned petitioners have already gone in

the civil suits during the pendency of which this is not the domain of the High Court to enter into controversial questions of fact based on rights

ordinarily available to the citizens under the ordinary civil law, and the writ petition under such circumstances under Article 226 of the Constitution

of India or Section 103 of the State Constitution cannot be entertained. The arguments of the learned Counsel for the petitioners, therefore, fails on

all the counts and we do not find any ground to entertain the writ petition as no legal or fundamental right of the petitioners, is shown to have been

violated by the action of the respondents which is proposed to be in the larger public interest.

In the result the petition fails which is hereby dismissed summarily and so also CMPs connected with the petition.

It appears that two suits were also filed by the plaintiffs 3 and 4 but they have chosen not to pursue the said suits and came to be dismissed in

default. Thereafter three suits came to be filed titled as Mohammad Amin v. State and Ors. Ishtiaq Hussain v. State and Ors. and Abdul Karim

and Ors.v. State and Ors.. Two applications for grant of ad-interim relief came to be filed in suits titled as Mohd. Amin v. State and Ors. and

Ishtiaq Hussain. v. State and Ors. which came to be dismissed. Copies of the aforesaid orders are contained in annexures R3 and R4 to the

objections filed by respondents in CMP No. 86/2006.

In the writ petition OWP No. 1174/87, plaintiffs 3 and 4 had not taken the plea that they are in possession of the suit land or portion of the

same but had taken the plea in the said suits and writ petition that their easementary rights were at stake and would be affected by the installation

and construction of the receiving station. And had stated that they are in possession of land comprising under khasra numbers 540, 541 and 542

situate at Old Gagribal, Srinagar and the receiving station was to be installed on the land falling under survey Nos. 526, 527, 525, 526/1. In the

suit in hand they have claimed to be the owners of land falling under survey Nos. 526/min, 527/min, and 551/min by adverse possession. Plaintiffs

3 and 4 had the knowledge of the impugned government order at the time of filing of the writ petition No. 1174/87. It is profitable to reproduce

relevant portions of paras 2 and 5 of the said writ petition herein, which read as under:

that the petitioners are owners in possession of land situate at Old Gagribal Srinagar comprising of Khasra Nos. 540, 541, and 542

respectively....

That some time back the respondents 2 and 3 came to a plot of land comprising in khasra No. 526, 527, 525, 526/1 and started expavating

earth and laying foundation of the construction of a building. Upon enquiry by the petitioners, it was disclosed that the respdts. intend raising,

constructing and installing a 33 KV/II KW power Receiving and Transmission Station/Plant on the aforesaid land....

Plaintiffs have also not disclosed in the suit that they had filed a writ petition and suits. Plaintiffs have also not disclosed that two miscellaneous

applications for grant of ad-interim injunction were dismissed in terms of the orders contained in annexures R3 and R4, as discussed hereinabove.

It is yet to be established whether plaintiffs are in possession and whether their possession has ripen into ownership by virtue of the doctrine of

adverse possession.

It is beaten law of the land that persons who seek equity must do equity and if a party suppresses material facts is not entitled to discretionary

relief muchless a temporary injunction.

Kerala High Court in case titled Vellakutry v. Karthyayani reported in AIR 1968 Ker 179 has observed as under:

In the circumstances, no prima facie strong case of the kind requisite for the grant of a temporary injunction can be said to have been made out

in the case. The assertion in the plaintiffs affidavit in support of her prayer for temporary injunction that the defendant have no right to the properties

is an utter lie to her knowledge in view of Ext. B-3 order. Hide-and-seek is not the procedure for obtaining temporary injunction. Any party who is

seen to have suppressed from Court material facts in his or her knowledge does not deserve the grant of any discretionary relief much less a

temporary injunction to the oppression of others during the pendency of the suit. The grant of temporary injunction by the District Judge, in reversal

of the Munsiff, was quite unwarranted in this case.

Calcutta High Court in case titled as Mahua Vs. Union of India (UOI) and Another, has observed as under:

It is true that obtaining of passport is not conclusive evidence of acquisition of citizenship. In the instant case all the aforesaid documents

including the application made by the applicant for being registered as an Indian Citizen go to show that the applicant chose voluntarily to change

his citizenship and acquired the Chinese citizenship and became a Chinese national. The aforesaid documents have been sought to be impeached

by the applicant in this application on the ground that the applicant was compelled fo execute the said documents due to coercion, but no particular

of any alleged coercion, has been stated and as such I am unable to take any notice of the said allegation of coercion Bishundeo Narain and

Another Vs. Seogeni Rai and Jagernath, The suppression of the fact of obtaining Chinese Passport in the petition itself as well as of his application

for registration as an Indian Citizen u/s 5 of the Citizenship Act, in my opinion do not entitle the applicant for equitable relief of injunction claimed in

the instant application....

It is profitable to reproduce relevant portions of paras 1 and 2 of the judgment delivered by Bombay High Court in case titled as Agarwal

Industries Ltd. Vs. Golden Oil Industries (P) Ltd., , herein as under:

In spite of the Courts repeatedly stating and reaffirming the principle that it is the duty of a party asking for an injunction to bring to the notice of

the Court all facts material and relevant to the issue, the litigants continue in their efforts to obtain favourable orders from the Court, ex parte,

without disclosing all material facts to the Court. This Company petition is an ideal example of how an ex parte order was taken from this Court

without mentioning the relevant facts, which would be necessary for the decision of the winding up petition....

2...The passages quoted above leave no manner of doubt that a dishonest litigant loses his remedy, when discretionary relief is obtained by

misrepresentation. The affidavit in support must make candid and fair statement of facts. Facts must not be stated in a manner to mislead the Court

as to the true facts. There must be no concealment of material facts. It is no excuse for the party to say that he/she was not aware of the

importance of any fact which he/she has omitted to bring forward.

On the basis of the aforesaid observations, this Court would be fully justified in dismissing the application as well not accepting the company

petition, which has only been lodged as yet and has not been accepted.

Apex Court in case titled as M/s. Gujarat Bottling Co. Ltd. and others Vs. Coca Cola Company and others, has observed that conduct of a

party who claims equitable relief should be free from any blame. Further observed that if the conduct of a party is not free from blame he is not

entitled to discretionary relief. Applying the test to the instant case, petitioners have concealed the material facts and by hook or crook had tried to

stall the installation of receiving station, which is against the public interest. It is profitable to reproduce para-50 of the said judgment herein, which

reads as under:

In this context, it would be relevant to mention that in the instant case GBC had approached the High Court for the injunction order, granted

earlier, to be vacated. Under Order 39 of the Code of Civil Procedure, Jurisdiction of the Court to interfere with an order of interlocutory or

temporary injunction is purely equitable and, therefore, the Court, on being approached, will apart from other considerations, also look to the

conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is

wholly equitable in nature, the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not

responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom

he was seeking relief. His conduct should be fair and honest. These considerations will arise not only in respect of the person who seeks an order

of injunction under Order 39, Rule 1 or Rule 2 of the Code of Civil Procedure, but also in respect of the party approaching the Court for vacating

the ad-interim temporary injunction order already granted in the pending suit or proceedings.

Viewed thus, the plaintiffs have not disclosed all the facts discussed herein-above, thus are not entitled to equitable relief.

The installation/construction of receiving station is for the benefit of public. It is the duty of the Court to protect the public interest but at the

same time it is the duty of the Court to safeguard the individual rights also.

Delhi High Court in case titled as Jayant Gas Service and Others Vs. Delhi Vidyut Board, has observed that Court has to consider the need of

the public at large. The public interest are of paramount consideration and is relevant factor. It is profitable to reproduce para-12 of the said

judgment herein, which read as under:

The Court is also to consider that the need of the public at large is an important factor to be taken notice of while dealing with an application

for temporary injunction. In Raunaq International Limited Vs. I.V.R. Construction Ltd. and Others, it was held by the Supreme Court that factors

like involving larger outlays of public money and delaying the availability of services, facilities of goods like delay in commissioning of power project

could lead to power shortage, retardation of industrial development, hardship to the general public and substantial cost escalation are to be taken

note of by the Court while considering request for grant of interim stay. Some of the aforesaid factors are also present in the facts of the present

case. Such factors in my considered opinion are relevant factors to be considered in a case of injunction also, for grant of injunction in favour of the

petitioner would mean that the same could lead to tremendous public hardship and substantial financial outlay in redoing the entire work, thus

involving larger outlays of public money and delaying the availability of services to the general public. The route map has already been prepared

and no violation of the same could be pointed out by the petitioners except for stating that such route would introduce additional risk to the already

existing hazardous premises. All the towers in the aforesaid route have already been constructed except for tower No. 16. The said route is being

laid and tower is being constructed after getting the matter examined through a High Power Technical Committee. The Committee in its Report

emphatically stated that alternative is not possible.

Apex Court in case titled as Raunaq International Limited Vs. I.V.R. Construction Ltd. and Others, has also observed that Court should have

regard to the public interest while dealing with the application for grant of interim relief, it is profitable to reproduce paras 10 and 24 of the said

judgment herein, which read as under:

What arc these elements of public interest? (1) Public money would be expended for the purposes of the contract. (2) The goods or services

which are being commissioned could be for a public purpose, such as. construction of roads, public buildings, power plants or other public utilities.

(3) The public would be directly interested in the timely fulfillment of the contract so that the services become available to the public expeditiously.

(4) The public would also be interested in the quality of the work undertaken or goods supplied by the tenderer. Poor quality of work or goods

can lead to termendous public hardship and substantial financial outlay either in correcting mistakes or in rectifying defects or even at times in

redoing the entire work - thus involving larger outlays of public money and delaying the availability of services, facilities or goods, e. g., a delay in

commissioning a power project, as in the present case, could lead to power shortages, retardation of industrial development, hardship to the

general public and substantial cost escalation.

Dealing with interim orders, this Court observed in Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd.

and Others, that an interim order should not be granted without considering the balance of convenience, the public interest involved and the

financial impact of an interim order. Similarly, in Ramniklal N. Bhutta v. State of Maharashtra the Court said that while granting a stay, the Court

should arrive at a proper balancing of competing interests and grant a stay only when there is an overwhelming public interest in granting It, as

against the public deteriment which may be caused by granting a stay. Therefore, in granting an injunction or stay order against the award of a

contract by the Government or a government agency, the Court has to satisfy itself that the public interest in holding up the project far outweighs

the public interest in carrying it out within a reasonable time. The Court must also take into account the cost involved in staying the project and

whether the public would stand to benefit by incurring such cost.

Applying the test to instant case the public interest would be affected by granting the ad-interim relief.

Keeping in view the judgment delivered by the Division Bench of this Court plaintiffs were given liberty to prove their easementary rights the

claim for which was made in the two suits, reference whereof is made in the judgment and also in the objections filed by the respondents herein,

which came to be dismissed in default.

Plaintiffs/appellants have failed to disclose all the facts as discussed herein-above, thus, no equitable relief can be granted in their favour.

In the given circumstances, it cannot be said that plaintiffs have a prima facie case.

The construction/installation of receiving station is for the benefit of public and thus balance of convenience is also not in favour of the plaintiffs.

Plaintiffs would not suffer from any irreparable loss for the feason that if they succeed in proving their case in that event compensation can be

awarded in their favour.

It is also pleaded that the construction of receiving station is hazardous and dangerous to the plaintiffs and the neighbouring residents. Suffice to

say is that the plaintiffs have not instituted the suit in a representative capacity, so they could not seek the remedy of interim injunction on the said

ground. However, it is just another pretext to protract the installation of receiving station. Trial Court discussed this aspect threadbare in the

impugned order which is well reasoned and self explanatory.

The plaintiffs not only played hide and seek role but they have also tried to use all weapons in their armoury in order to stall the

installation/construction of the receiving station. Virtually they misused the remedies in order to hamper and cause hindrance in

construction/installation of the receiving station. It appears that plaintiffs have acted in such a way which is really against the interests of public at

large. It is duty of the Court to check, such litigations and come down heavily in order to see and ascertain that remedies are not misused and to

curb the false and frivolous litigations. And litigants should not be allowed to raise the same disputes in different litigations by by approaching

different forums.

Apex Court in case titled Rajappa Hanamantha Ranoji v. Mahadev Channabasappa reported in AIR 2000 SC 2108 has observed as under:

It is distressing to note that many unscrupulous litigants in order to circumvent orders of Courts adopt dubious ways and take recourse to

ingenious methods including filing of fraudulent litigation to defeat the orders of Courts. Such tendency deserves to be taken serious note of and

curbed by passing appropriate orders and issuing necessary directions including imposing of exemplary costs. As noticed, despite eviction order

having become final nearly a quarter century ago-respondent No. 1 still could not enjoy the benefit of the said order and get possession because of

the filing of the present suit by the brother of the person who had suffered the eviction order. Under these circumstances, we quantify the costs

payable by the appellant to respondent No. 1 at Rs. 25,000/-

Apex Court in case titled as Municipal Corporation of Delhi Vs. Kamla Devi and another, has observed as under:

7...Moreover, the frame of the suit and the language arid terms in which the declaration and prohibitory injunction are asked for suggest a clear

attempt to overreach the process of Court. The object clearly was to obtain a declaration that the assessment order dated January 28, 1991, is

illegal and invalid from a Court outside Delhi. The fact that Kamla Devi (Plaintiff) chose to conceal the fact of her filing the appeal against the said

assessment order is also indicative of the mala fides on her part It is true that the Court has limited the prohibitory injunction only to properties in

Ghaziabad but it has granted a declaration that the very assessment order is void and illegal which means that it cannot be enforced even within the

limits of Delhi Municipal Corporation. In Special Leave Petition, it is stated by the Corporation that the Bill of demand pursuant to the assessment

order aforesaid was sent only to July 8, 1991, to the respondent whereas the suit was filed on April 19, 1991. Once this Court is satisfied that

Kamla Devi has abused the process of law and misused the legal system, the objections put forward by the respondents counsel are of no

consequence. This Court is entitled to act in such cases to prevent such abuse and misuse.

Plaintiffs 3 and 4 filed writ petition which came to be dismissed, abandoned two suits and plaintiffs 5 and 6 filed two applications for grant of

interim relief in two suits filed by them which came to be dismissed, reference of which is made hereinabove. Plaintiffs have also concealed all the

material facts, as discussed hereinabove.

Thus plaintiffs have not acted fairly and are to be saddled with costs.

In the given circumstances, I am of the considered view that trial Court has exercised discretion rightly.

Viewed thus, the appeal is dismissed along with all connected CMP(s) and appellants are saddled with costs of Rupees 30,000/-.

Send down the record along with a copy of this order.