Achhru and Others vs The Director of Consolidation etc.

Chet Ram Thakur, J.—In this Civil Writ Petition, Respondent No. 3 has taken a preliminary objection that the Petitioners are guilty of suppressing the material facts and making misstatements of facts and as such they are not entitled to the discretionary relief under Articles 226/227 of the Constitution of India.

Petitioners 2 to 5 are the sons of Shri Achhru Petitioner No. 1. Petitioners No. 2, 3 and 4 are major, whereas Petitioner No. 5 is a minor Shrimati Narainoo, the grand-mother of Petitioners 2 to 5, according to the Petitioners had gifted her entire 1/2 share in the land which measured 22 kanals 17 marlas on 12-5-1958 in favour of the Petitioners No. 2 to 5. This gifted property formed a compact and one major portion and during the Consolidation Proceedings in their village Diara, to which place the Respondent No. 5 belongs, the Consolidation Officer valued their lands at 14%. The contention of the Petitioners is that the Assistant Consolidation Officer committed this mistake by not taking into consideration this gifted land. If he had correctly taken into consideration the gifted land which measured 11 kanals 81/2| marlas along with the Abadi, then the percentage of the Petitioners would have worked out at 57 per cent against that of the predecessor-in-interest of Respondent No. 3 to be only 35 percent and it was in view of this error that the land in their possession was wrongly allotted to Respondent No. 3. The predecessor of Respondent No. 3 filed an appeal before the Settlement Officer who reversed the order of the Consolidation Officer. Thereupon the present Petitioners went in appeal to the Assistant Director who accepted the appeal and setting aside the order of the Settlement Officer, restored the order of the Consolidation Officer. Thereafter Respondent No. 3 made an application u/s 42 of the East Punjab Holdings (Consolidations and Prevention of Fragmentation) Act, 1948 (shortly called the Act) before the Director of Consolidation who accepted the same and reversing the order, restored the order of the Consolidation Officer and it is against that order of the Director of Consolidation, exercising the powers of the State Government dated 24th August, 1974, that this petition has been filed.

The main contention of the Petitioners is that because of the fact that the authorities concerned ignored the lands measuring 11 kanals 8 1/2 marlas acquired by them under a gift made by their grand-mother on 12-5-1958 that the percentage of their lands was worked out at a lower value. They had been in possession of the property acquired in gift with effect from Kharif 1959 and under (the scheme framed under the aforesaid Act, action by the consolidation authorities was to be taken on the basis of the entry incorporated in the jamabandi for the year 1958-59. Since the jamabandi had been prepared before the acquisition of the interest by Petitioners 2 to 5 the conclusion of the Assistant Consolidation Officer was obvioulsy incorrect inasmuch as he Wrongly calculated the percentage of the Petitioners by ignoring the entries incorporated in the khasra girdawaris and that it was his bounden duty to consider the khasra-girdawaris and if he had considered the same, then the percentage would have been 57 per cent.

In respect of the preliminary objection, it is stated by the Respondent No. 3 that though the Petitioners obtained the gift deed from Smt. Narainoo in respect of her 1/2 share of the land but Smt. Narainoo vide her application dated 11th December, 1959, maintained that the aforesaid deed was obtained through fraud and that she had not transferred any possession to the Petitioners. Eventually the aforesaid mutation was rejected on 31st January, 1960. The Petitioners were forced to file a suit for possession on 30th August, 1960, which suit was compromised on 21st March, 1961, whereby l/4th share of Shrimati Narainoo was decreed. Consequent to the aforesaid compromise decree a warrant of possession was obtained and the possession of l/4th share was obtained on 11th June, 1961, and it was, therefore, wrong that the Petitioners had entered into possession of the lands in 1959 and mutation was sanctioned only on the 24th October, 1961, and it was only in Rabi 1962 that the entries of possession as owners with respect to the lands obtained through decree were made in Khasra-girdawari. The Petitioners filed their rejoinder and they denied the correctness of the preliminary objection and in para-5 it had been stated that the gift was executed on 12-5-1958 and the presumption is that the possession is delivered when the gift is made in favour of the Petitioners- That in fact Smt. Narainoo was instigated by some other interested persons in the village so that she may put the Petitioners in trouble. They admitted the compromise arrived at between the parties on 21-3-1961 and they filed a copy of ''the compromise which is Annexure-1 to the rejoinder and the statements of Smt. Narainoo and Shri Bhola Nath, one of the Petitioners and those statements are Annexures J. and K. The Petitioners denied that they were entered in possession in Rabi 1962 after they had obtained the decree. In fact they have been incorporated as owners much earlier than Rabi 1962.

Now it is quite clear that the Petitioners did not disclose this fact that they had filed a suit for possession which clearly means that they were not put in possession as averred by them in the petition. So this is a clear mis-statement of facts. The learned Counsel for the Petitioners has admitted that it had wrongly been written that it was a suit for declaration but in fact it was a suit for possession and the averments made in the reply by the counsel for Respondent No. 3 that the Petitioners Were put in possession only under a warrant of possession issued after the decree in 1961, is not being denied, and therefore, the submission of the Petitioners that they had been put in possession of 11 kanals 81/2 marlas of lands in 1959 Rabi is wrong. In fact under the decree Annexure 1 the Petitioners got only 1/2 of the share of Smt. Narainoo i.e., they got only 5 kanals 14 1/4 marlas of lands and therefore, this was really a clear mis-statement of fact that they were in possession as owners of 11 kanals 8 1/2 marlas of lands. In fact they were not in possession of even this much of land in 1959. Therefore, what follows that the Petitioners not only suppressed the material facts rather they made a mis-statement of fact. In these circumstances if the material facts have been suppressed then the party by its conduct disentitles itself to the relief under Article 226 of the Constitution. It is the duty of the Petitioner who seeks relief under Article 226 of the Constitution to be very frank and candid in his relation to the facts and to keep back no facts which would throw light on any material point. The Petitioners who seek an extraordinary relief must approach the Court with clean hands. The material facts having a bearing on the relief should be disclosed in the petition. In this regard reference may be made to G. Appukkuttan Pillai Vs. Government of India and Others, The Petitioners, it appears, has not made a full and true disclosure of the facts but has in order to put forward his case that if the lands 11 kanals 8 1/2 marlas which was a compact area, had been taken into consideration then the percentage of the value of their land would have come to 57 per cent, but the parties ignored that land which was in their possession, which is totally false. Therefore, they disentitled themselves to this extra ordinary remedy. In N. Bommon Behram and Anr. v. The Government of Mysore and Ors. AIR 1970 Mys 89 also it has been observed by a Division Bench of that Court that it is an elementary principle that persons seeking the assistance of the Court in exercise of its extraordinary jurisdiction must come with clean hands. They should not suppress facts or state false facts or withhold material facts from the Court. Learned Counsel for the Petitioners has submitted that the suppression was not intentionally made and, therefore, the petition could not be dismissed on that score and he placed reliance on Manibhai Hathibhai Patel Vs. C.W.E. Arbuthnot, This authority is distinguishable inasmuch as here the omission cannot be said to be un-intentional or inadvertent. They were aware that they had filed a suit and they were not put in possession. Mutation had been rejected by the Revenue Officer because Shrimati Narainoo put up an application before the Tehsildar that a gift had been procured from her by fraud and mis-representation and it was thereafter that the present Petitioners filed a suit and they got only \\ share of Smt. Narainoo i.e. l/4th out of the total area of land measuring 22 kanals 17 marlas. It was a suit filed by the Petitioners for declaration and possession but in the copy they intentionally omitted to state that it was a suit for possession and they wrongly showed it as a suit for declaration so as to show to the Court that they Were already in possession since Rabi 1959 and which was against facts, because as averred by the Respondents, they were put into possession only after the decree 1961 under a warrant of possession. Similarly the authority Raghbir Singh Vs. Municipal Board of Hardwar Union, Hardwar and Another, cited by the Petitioners'' learned Counsel is not helpful to him because it only says that omission to mention a particular fact does not necessarily disentitle the Petitioners to get a relief under Article 226 unless the fact which has been omitted to be mentioned is material to the relief claimed by the applicant. In the instant case, it was necessary for them to have disclosed that they got only 5 kanals and 14 1/4 marlas of lands by gift and they were put in possession only under a decree by a warrant of possession. This was a material fact because the valuation for the purposes of consolidations depended upon the area that was in their ownership and possession.

The result, therefore, is that the Petitioners have disentitled themselves to this extraordinary relief because of their conduct in not coming with clean hands to the Court. The petition, therefore, is dismissed with no order as to costs.