Rajesh Meena vs Municipal Council Nagda

The petitioner has filed the present petition being aggrieved by order dated 10.11.2017, 30.11.2017 and 13.12.2017 issued by the respondent

demanding the rent along with penalty to the tune of Rs.4,03,019/-.

The facts, in short, are that the petitioner is in possession of Shop No.2 situated at Nagda Junction since 1986 on the basis of 'Shariyatnama'

executed by Municipal Council Nagda. The petitionr is using the said shop for doing his business. In the year 2013, the respondent issued the order to

deposit the rent with penalty. The petitioner along with other similarly situated shop owners filed writ petitions before this Court challenging the legality

and validity of the demand notices. By order dated 25.10.2013 all the writ petitions were disposed of by this Court by directing the petitioner to deposit

the amount of penalty of Rs.75,000/- and also directed the respondent Municipal Council to decide the objection submitted by the petitioner. 3. Being

aggrieved by the directions to deposit a sum of Rs.75,000/-, the present petitioner filed W.A. No.1105/2013. By order dated 6.1.2014, the Division

Bench of this Court has reduced the penalty from Rs.75,000/- to Rs.20,000/- in addition to the rent payable by the petitioner. According to the

petitioner, in compliance of the aforesaid order of Division Bench of this Court, he deposited the amount of Rs.20,000/- and the arrears of rent i.e. 21

months on 14.8.2015. In fact, the petitioner has deposited the amount in excess to the tune of Rs.5,300/-. The Chief Municipal Officer, Municipal

Council Nagda, issued the demand notices dated 10.11.2017, 30.11.2017 and 13.12.2017 directing the petitioner to deposit amount of Rs.4,03,019/-.

Being aggrieved by the aforesaid notices, the petitioner has filed the present petition.

Instead of filing any return, Shri Bhatnagar has agreed to argue the case along with record of the case.

Shri Tugnawat, learned counsel appearing for the petitioner, submits that the respondent has wrongly issued the impugned demand notices

demanding Rs.4,03,019/- when the petitioner has already deposited the rent and the penalty of Rs.20,000/- as directed by this Court. The Municipal

Council is not having any authority to issue the demand notices without following the procedure prescribed in Section 164 of the Municipalities Act,

1961. The respondent ought to have issued a bill before raising such demand. The petitioner cannot prefer an appeal against the impugned demand

notices, therefore, writ petition is the only remedy available to him, hence the impugned demand notices be quashed.

Shri Bhatnagar, learned counsel appearing for the respondent, produced the original record of the case and argued in support of the impugned

demand notices and prayed for dismissal of the writ petition.

The petitioner is a tenant of Shop No.2 by virtue of 'Shariyatnama' executed by the respondent â€" Municipal Council Nagda. By way of the

aforesaid 'Shariyatnama', the said shop was given to the petitioner on rent @ Rs.250/- per month. As per condition No.8 of said 'Shariyatnama', the

petitioner is liable to deposit the rent monthly and if there is any default of three months in payment of rent, then the Municipal Council shall have a

right to forfeit the security amount and initiate the proceedings for eviction. The condition No.8 of 'Shariyatnama' is reproduced below :-

“8 â€" lQy cksyhnkj dks leLr uhyke ds vykok rhu ekg dk lacaf/kr nqdku dk fdjk;k vfxze :i esa tek djuk vfuok;Z gksxk rFkk izfrekg dk fdjk;k

izR;sd ekg dh 10 rkjh[k rd uxjikfydk ukxnk ds dk;kZy; esa tek djuk gksxkA izfrekg 10 rkjh[k rd fdjk;k tek ugha fd;s tkus ij vfxze fdjk;k jktlkr dj

fy;k tkosxk ,oa iqu% rhu ekg dk fdjk;k vfxze tek u djus dh n'kk esa nqdku [kkyh djkus dk vf/kdkj uxjikfydk dks jgsxk rFkk cdk;k fdjk;s dh jkf'k

u0ik0 vf/kfu;e] 6 ds v/;k; 8 ds rgr~ olwy djus dk uxjikfydk dks vf/kdkj jgsxkA

The Municipal Council issued the demand notice on 11.9.2009 demanding arrears of rent to the tune of Rs.77,610/- along with penalty. The

petitioner along with others challenged the same before this Court by way of writ petition. By order dated 25.10.2013, the writ petition was disposed of

with a direction to the petitioner to move objection challenging the legality and validity of the demand within a period of one month. The Municipal

Council was also directed to consider the objection filed by the petitioner. The petitioner was directed to deposit Rs.75,000/- in addition to the rent

after adjusting the amount of rent which has already been deposited. The direction given by this Court are reproduced below :-

“1. In case each of the petitioner deposits a sum of Rs.75,000/- in addition to the rent after adjusting the amount of rent which has already been

deposited and moves objections challenging the validity of demand within one month, then respondent shall consider the objections filed by the

petitioner in all the petitions and shall decide the same by passing a reasoned order.

If the petitioner is not in possession of the shop and has given the same to some other person, then petitioner shall move an appropriate application

for grant of permission alongwith full particulars that when the accommodation was given and deposits the amount as per agreement along with

interest on the amount from that day when occupation was given, then respondent shall consider the application for tr5ansfer of possession as per

terms of lease agreement.â€​

Thereafter, the petitioner filed writ appeal before this Court and the Division Bench of this Court has only reduced the amount from Rs.75,000/- to

Rs.20,000/and maintained the remaining directions given by the Writ Court. In compliance of the said direction of this Court, the petitioner has only

deposited the arrears of rent and the amount of Rs.20,000/-, but he has not submitted any objection to the demand and kept quite. Since the petitioner

did not submit any objection, then there was no occasion for the respondent â€" Municipal Council to decide the objection, but the demand raised by

the Municipal Council remained pending because the same has not been decided by this Court. Therefore, the respondent Municipal Council has

rightly issued the notices demanding arrears of rent as well as penalty. The opportunity given by this Court to the petitioner has not been availed by

him, therefore, no equity lies in favour of the petitioner. The relief under Article 226 of the Constitution of India is an equitable relief.

Now, the petitioner is challenging the demand on the ground that the recovery cannot be made without following the procedure prescribed in

Section 164 of the Municipalities Act as the bill for the sum claimed as due has not been issued. U/s. 164(1)(c) of the Municipalities Act, 1961, the

rent payable to the Municipalities in respect of land, building, shop, 'Gumthi' or other properties is payable after becoming due and if the bill is not paid,

then the Chief Municipal Officer may cause to be presented to the person liable for the payment thereof a bill for the sums claimed as due. A notice

for demand in the prescribed form may be issued. The demand notice has already been issued to the petitioner way back in the year 2013, which the

petitioner had challenged before this Court. The petitioner was given liberty to submit his objection, but he failed to submit any objection on merit and

failed to avail such opportunity given by this Court. Therefore, at this stage, the petitioner cannot raise the ground that the demand is not in accordance

with Section 164 of the Municipalities Act. Section 164 only provides an opportunity of hearing before making such demand, which was granted by

this Court to the petitioner and he failed to avail the same. The only remedy available to the petitioner is to file an appeal against such demand.

In order to get relief in a writ petition under Art. 226 of the Constitution of India the petitioners must have legal or statutory rights then only they

can claim equity from this court. The Apex Court in case of Ramesh Chandra Sankla Vs.Vikram Cement : (2008) 14 SCC 58 has held as under:-

“90. Now, it is well settled that jurisdiction of the High Courts under Articles 226 and 227 is discretionary and equitable. Before more than half a

century, the High Court of Allahabad in the leading case of Jodhey v. State , AIR 1952 All 788 observed: (AIR p. 792, para 10)

“10. … There are no limits, fetters or restrictions placed on this power of superintendence in this clause and the purpose of this article seems to be

to make the High Court the custodian of all justice within the territorial limits of its jurisdiction and to arm it with a weapon that could be wielded for

the purpose of seeing that justice is meted out fairly and properly by the bodies mentioned therein.â€​

(emphasis supplied)

The power of superintendence under Article 227 of the Constitution conferred on every High Court over all courts and tribunals throughout the

territories in relation to which it exercises jurisdiction is very wide and discretionary in nature. It can be exercised ex debito justitiae i.e. to meet the

ends of justice. It is equitable in nature. While exercising supervisory jurisdiction, a High Court not only acts as a court of law but also as a court of

equity. It is, therefore, power and also the duty of the Court to ensure that power of superintendence must “advance the ends of justice and uproot

injusticeâ€​. -------

From the above cases, it clearly transpires that powers under Articles 226 and 227 are discretionary and equitable and are required to be exercised

in the larger interest of justice. While granting relief in favour of the applicant, the court must take into account the balancing of interests and equities.

It can mould relief considering the facts of the case. It can pass an appropriate order which justice may demand and equities may project. As

observed by this Court in Shiv Shankar Dal Mills v. State of Haryana (1980)2 SCC 437 , courts of equity should go much further both to give and

refuse relief in furtherance of public interest. Granting or withholding of relief may properly be dependent upon considerations of justice, equity and

good conscience.

The Supreme Court of India in case of Dalip Singh v. State of U.P., reported in (2010) 2 SCC 114 has held as under:-

“7. In Prestige Lights Ltd. v. SBI (2007)8 SCC 449 , it was held that in exercising power under Article 226 of the Constitution of India the High

Court is not just a court of law, but is also a court of equity and a person who invokes the High Court’s jurisdiction under Article 226 of the

Constitution is duty-bound to place all the facts before the Court without any reservation. If there is suppression of material facts or twisted facts have

been placed before the High Court then it will be fully justified in refusing to entertain a petition filed under Article 226 of the Constitution. This Court

referred to the judgment of Scrutton, L.J. in R. v. Kensington Income Tax Commissioners (1917)1 KB 486 (CA) and observed: (Prestige Lights Ltd.

Case (2007)8 SCC 449 , SCC p. 462, para 35)

In exercising jurisdiction under Article 226 of the Constitution, the High Court will always keep in mind the conduct of the party who is invoking such

jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, then the Court

may dismiss the action without adjudicating the matter on merits. 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.

In A.V. Papayya Sastry v. Govt. of A.P. (2007)4 SCC 221 , the Court held that Article 136 does not confer a right of appeal on any party. It

confers discretion on this Court to grant leave to appeal in appropriate cases. In other words, the Constitution has not made the Supreme Court a

regular court of appeal or a court of error. This Court only intervenes where justice, equity and good conscience require such intervention.

In Sunil Poddar v. Union Bank of India (2008)2 SCC 326, the Court held that while exercising discretionary and equitable jurisdiction under Article

136 of the Constitution, the facts and circumstances of the case should be seen in their entirety to find out if there is miscarriage of justice. If the

appellant has not come forward with clean hands, has not candidly disclosed all the facts that he is aware of and he intends to delay the proceedings,

then the Court will non-suit him on the ground of contumacious conduct.

In K.D. Sharma v. SAIL (2009)12 SCC 481, the Court held that the jurisdiction of the Supreme Court under Article 32 and of the High Court

under Article 226 of the Constitution is extraordinary, equitable and discretionary and it is imperative that the petitioner approaching the writ court

must come with clean hands and put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief.

If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the

threshold without considering the merits of the claim. The same rule was reiterated in G. Jayashree v. Bhagwandas S. Patel (2009)3 SCC 141.

The Apex Court again in case of Ritesh Tewari v. State of U.P., reported in (2010) 10 SCC 677 has held as under:-

“26. The power under Article 226 of the Constitution is discretionary and supervisory in nature. It is not issued merely because it is lawful to do so.

The extraordinary power in the writ jurisdiction does not exist to set right mere errors of law which do not occasion any substantial injustice. A writ

can be issued only in case of a grave miscarriage of justice or where there has been a flagrant violation of law. The writ court has not only to protect

a person from being subjected to a violation of law but also to advance justice and not to thwart it. The Constitution does not place any fetter on the

power of the extraordinary jurisdiction but leaves it to the discretion of the court. However, being that the power is discretionary, the court has to

balance competing interests, keeping in mind that the interests of justice and public interest coalesce generally. A court of equity, when exercising its

equitable jurisdiction must act so as to prevent perpetration of a legal fraud and promote good faith and equity. An order in equity is one which is

equitable to all the parties concerned. The petition can be entertained only after being fully satisfied about the factual statements and not in a casual

and cavalier manner. (Vide Champalal Binani v. CIT (1971)3 SCC 20 ; Chimajirao Kanhojirao Shirke v. Oriental Fire and General Insurance Co. Ltd.

(2000)6 SCC 622 ; LIC v. Asha Goel (2001)2 SCC 160; Haryana Financial Corpn. v. Jagdamba Oil Mills(2002) 3 SCC 496; Chandra Singh v. State of

Rajasthan (2003) 6 SCC 545 and Punjab Roadways v. Punja Sahib Bus and Transport Co.(2010)5 SCC 235)

Where a party’s claim is not founded on valid grounds, the party cannot claim equity. A party that claims equity must come before the court

with clean hands as equities have to be properly worked out between parties to ensure that no one is allowed to have their pound of flesh vis-Ã -vis

the others unjustly.(Vide Sikkim Subba Associates v. State of Sikkim (2001)5 SCC 629.)

In A.P. State Financial Corpn. v. Gar ReRolling Mills (1994)2 SCC 647 , this Court observed: (SCC p. 662, para 18)

“18. … Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law.â€​

In M.P. Mittal v. State of Haryana (1984)4 SCC 371 , this Court held: (SCC p. 374, para 5)

“5. … it is open to the High Court to consider whether, in the exercise of its undoubted discretionary jurisdiction, it should decline relief to such

petitioner if the grant of relief would defeat the interests of justice. The Court always has power to refuse relief where the petitioner seeks to invoke

its writ jurisdiction in order to secure a dishonest advantage or perpetuate an unjust gain.â€​

This Court in State of Maharashtra v. Prabhu (1994)2 SCC 481 considered the scope of equity jurisdiction of the High Court under Article 226 of

the Constitution and pointed out as follows: (SCC p. 486, para 5)

“5. … It is the responsibility of the High Court as custodian of the Constitution to maintain the social balance by interfering where necessary for

sake of justice and refusing to interfere where it is against the social interest and public good.â€​

The present appeal does not present any specialfeature warranting exercise of equitable discretionary jurisdiction in favour of the appellants. The

equity jurisdiction is exercised to promote honesty and not to frustrate the legitimate rights of the other parties.

It is settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development

cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the

competence of any authority to validate such an order. It would be ironical to permit a person to rely upon a law, in violation of which he has obtained

the benefits. (Vide Upen Chandra Gogoi v. State of Assam (1998)3 SCC 381; Satchidananda Misra v. State of Orissa (2004)8 SCC 499 and SBI v.

Rakesh Kumar Tewari (2006)1 SCC 530.)

In C. Albert Morris v. K. Chandrasekaran (2006)1 SCC 528 ,this Court held that a right in law exists only and only when it has a lawful origin.

In Mangal Prasad Tamoli v. Narvadeshwar Mishra (2005)3 SCC 422, this Court held that if an order at the initial stage is bad in law, then all

further proceedings consequent thereto will be non est and have to be necessarily set aside.

Therefore, in view of the above law laid down by the Apex Court, the remedy of writ petition is not available to the petitioner. The petition is

accordingly dismissed.

However, there shall be no order as to costs.