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Judgment
These two writ petitions have been filed by the petitioner Suresh Kumar Kannuajia for quashing the order dated 28th October, 2015 passed by the State Government and the order dated 20th October, 2015 passed by the Lucknow Development Authority in relation to the auction of land over Plot No. CP-44, Sector - E, Sitapur Road and another Plot No. CF-01, Viram Khand - 5, Lucknow, that was held on separate dates. The said auctions were set aside and cancelled on 20.12.2007 and 30.6.2008 respectively. Against the cancellation orders, several writ petitions were filed including one by the petitioner being Writ Petition No. 7807 (MB) of 2008. The entire bunch of writ petitions including that one of Sri Rampal Yadav being Writ Petition No. 397 (MB) of 2008, were disposed of on 21st July, 2014 with a direction to the Vice Chairman, Lucknow Development Authority to consider the representation of all the petitioners and pass orders within six weeks after providing an opportunity of hearing keeping in view the decision in the case of Kalu Ram Ahuja and another v. Delhi Development Authority, 2008 (10) SCC 696 and for a period of two months it was directed that status quo as was existing on that day shall be maintained by the parties.
The ground for cancellation of the auction proceedings in both the matters was that since there was no effective competition reflected by adequate participation of bidders and that only two persons in one of the auctions had participated, it was decided to cancel the auction proceedings. The petitioner had filed the aforesaid writ petition contending that since he was the highest bidder in the auction which was held after due advertisement, there was no valid reason for the decision taken by the Lucknow Development Authority to cancel the auction as no tangible reason existed in public interest to cancel the same. It was also contended that the bid of the petitioner was higher than the reserved price and therefore the cancellation and return of the draft to the petitioner was unjustified.
In this background, the Vice Chairman proceeded to hear the petitioner and after considering the representation rejected the same vide order dated 20th October, 2014 in both the cases as well as the other connected matters. A copy of the orders passed in both the matters are on record and they indicate that the petitioner had appeared on the date fixed i.e. 22.9.2014 and had placed his point of view pressing his representation. A copy of the decision was also sent to the petitioners in both matters.
The narration of the aforesaid fact of the decision having been taken on the directions of the High Court by the Vice Chairman of the Lucknow Development Authority, and the same having been rendered after hearing the petitioner with a copy of the order served on him, is entirely absent in the pleadings except for assailing the said order in the second paragraph of the writ petition and praying for quashing of the same in the relief clause. This fact is necessary to be emphasised in view of the developments that took later on at the instance of Sri Ram Pal Yadav, and as per the contention of Sri B.K. Singh, learned counsel for the petitioner, not at the instance of the petitioner.
It appears that after the matter had been decided by the Vice Chairman, Lucknow Development Authority an application for correction was filed according to Sri B.K. Singh, learned counsel for the petitioner by Rampal Yadav in Writ Petition No. 397 (MB) of 2008. On a specific query raised by the court and on an order passed by us on 3.12.2015, a supplementary affidavit has been filed on 8.12.2015. The order that was passed by us on 3.12.2015 is quoted hereinunder:--
"Heard Sri B.K. Singh, learned counsel for the petitioner and Sri Shailendra Singh Chauhan for the Lucknow Development Authority. The petitioner has come up challenging the order dated 28.1.2015, contending that the State Government has completely ignored the direction of the High Court, as also the contentions which have been raised by incorrectly mentioning that the matter has to be decided by the Vice Chairman, Lucknow Development Authority.
Learned counsel submits that the order being patently in the teeth of the direction of the High Court, deserves to be set aside.
A preliminary objection has been taken by the respondent Development Authority to the effect that the petitioner is relying on the corrected order passed by the High Court dated 22.12.2014 whereas the decision by the Vice Chairman had already been taken prior to that on 20.10.2014 on the directions dated 21.7.2014 issued by the High Court earlier. The objection is that the fact of the decision having been already taken by the Vice Chairman, Lucknow Development Authority was not brought to the notice of the High Court when the correction order was passed subsequently on 22.12.2014.
Learned counsel for the petitioner submits that this correction application was filed in Writ Petition No. 397 (MB) of 2008 by Ram Pal Yadav and, therefore, the petitioner, will file a supplementary affidavit explaining this fact as to why such disclosure was not made at the time when the High Court passed the subsequent order, directing the State Government to pass the order.
What we find from the record is that the Contempt Applications No. 1992 of 2015 and 1994 of 2015, both were filed by the petitioner himself, copy whereof has been filed as Annexure-12 to the writ petition, mentioning the correction order passed by the High Court.
The petitioner thus, appears to have willfully withheld and concealed the relevant fact of the order of the Vice Chairman dated 20.10.2014 before the High Court while obtaining the order dated 22.12.2014. In such a situation it is the petitioner who is trying to take benefit of the said order, therefore, the petitioner will have to explain as to why these facts were not brought to the notice of the High Court when the subsequent order was passed.
The petitioner shall file his personal affidavit and shall also remain present in Court on the next date.
List on Tuesday i.e. 8.12.2015 on the request of Sri Singh.
Sri Shailendra Singh Chauhan has filed his authority on behalf of the respondent Lucknow Development Authority. Let his name be shown in the cause list accordingly."
The supplementary affidavit states that the petitioners of Writ Petition No. 397 (MB) of 2008, Ram Pal Yadav and M/s. Fortuna Foundation Engineers & Consultants Pvt. Ltd. in Writ Petition No. 7980 (MB) of 2007, moved respective applications for modification of the judgment dated 21.7.2014 on 13.10.2014 with a request that the interpretation of the government order is involved, and therefore the representation may be decided by the State Government. It is on the applications of these two petitioners that an order was passed on 22.12.2014 by the division bench to the following effect:--
"Hon''ble Devi Prasad Singh, J.
Hon''ble Rajiv Sharma, J.
Heard learned counsel for the petitioner.
The judgment and order dated 21.7.2014 is corrected. The words, "Vice-Chairman, Lucknow Development Authority" are substituted by the words, "State of U.P.
The judgment and order is corrected accordingly."
It is thus clear that the petitioner had admittedly not moved any application and this fact has been admitted in paragraph 7 of the supplementary affidavit.
In paragraph 8 of the supplementary affidavit the petitioner has urged that he has not committed any mistake and the orders of the High Court have been complied with in letter and spirit by the petitioner and if this Court finds that the petitioner has committed any mistake or concealed any material fact he may be pardoned.
During the course of his submission Sri B.K. Singh has again asserted that the petitioner was not the applicant in the modification application and therefore it cannot be inferred that the petitioner intended to withhold any fact or misrepresent the matter before the court, but if the court arrives at any such conclusion the petitioner tenders his apology for the same.
Thereafter when the corrected order was passed on 22.12.2014, the petitioner Suresh Kumar Kannuajia filed two contempt petitions being Contempt No. 1992 of 2015 and Contempt No. 1994 of 2015 alleging that the directions of the High Court as corrected on 22.12.2014 has not been complied with. A compliance affidavit was filed in the contempt matter bringing on record the orders passed which are now impugned herein. The learned Contempt Judge taking notice of both the orders held that there was compliance of the direction of the writ court and in the event the petitioner is aggrieved, he can take appropriate steps to challenge the said orders. The contempt petition was accordingly dismissed on 26.11.2015. It is thus clear that even though the petitioner had not moved any application for correction in his writ petition calling upon the State Government to decide the representation yet the corrected order dated 22.12.2014 was sought to be taken benefit by the petitioner who filed two contempt applications for non-compliance thereof.
It is in this background that we had passed the orders on 3rd December, 2015 calling upon the petitioner to explain as to why the fact of the disposal of the representation by the Vice Chairman, Lucknow Development Authority vide order dated 20.10.2014 had not been brought to the notice of the division bench when the correction order was obtained much thereafter in December, 2014 and at the same time the petitioner was trying to take benefit of the corrected order on the strength of the threat of contempt filed by him. The petitioner in response thereto has filed the supplementary affidavit referred to hereinabove.
The order dated 28th October, 2015 has been challenged primarily on the ground that there is no compliance of the judgment of the High Court as corrected on 22.12.2014. In this regard, it would be relevant to put on record that firstly the petitioner admittedly had not moved any such application as is stated by him in the supplementary affidavit for correction of the judgment dated 21st July, 2014. In such a situation, in our opinion, the petitioner having not sought any such remedy, he was not entitled to claim any such benefit of the correction order. Secondly assuming that since it was a common judgment and the correction had been allowed the order appears to have been admittedly obtained without even reference to the fact that the judgment dated 21st July, 2014 had already been complied with by the passing of the order on 20.10.2014.
Sri Singh tried to emphasise that the application for correction of the judgment had been moved prior to that on 13.10.2014. The aforesaid fact may be correct, but the correction application remained pending and had not been disposed of till 22.12.2014. Shortly after the moving of the application, the Vice Chairman, Lucknow Development Authority had passed the orders on 20.10.2014 the hearing whereof had been conducted on 22.9.2014 in which the petitioner had also participated. The order dated 20.10.2014 therefore could have been and ought to have been brought to the notice of the court before obtaining the order dated 22.12.2014 but does not appear to have been done.
It is thus clear that the correction order dated 22.12.2014 was an outcome of clear misrepresentation and withholding of correct facts that have not been noticed in the said order. The petitioner also sought benefit of the very same order that is evident from his filing of contempt application which is an outcome of such misrepresentation.
In the aforesaid background it does not lie in the mouth of the petitioner to contend that the impugned order dated 28th October, 2015 passed by the State Government reflects non-compliance of the direction of the High Court dated 22.12.2014. The State Government while passing the order dated 28.10.2015 has categorically indicated that the powers lie with the Vice-Chairman, Lucknow Development Authority who had already taken a decision on 20.10.2014 and the same being a competent order the State Government had rightly advised the Vice-Chairman to take appropriate action in the matter. This is how the representation has been disposed of by the State Government.
In our considered opinion, the petitioner cannot take advantage of the aforesaid legal jugglery attempted on behalf of the petitioner and then criticize the order of the State Government on the ground of non-compliance of the direction dated 22.12.2014. We therefore find this to be a ground which has been created that is an outcome of an incorrect representation of facts and obtaining an order from the High Court on 22.12.2014. Not only this, the threat of contempt was also attempted by the petitioner himself that was turned down by the learned Single Judge on 26.11.2015 and in our opinion rightly so. The order of the State Government cannot be faulted on any ground.
Sri B.K. Singh has urged that as a matter of fact the petitioner could have also challenged the order dated 20.10.2014 as and when it had been passed by the Vice-Chairman but the petitioner waited for the outcome of any decision being taken by the State Government. The petitioner therefore was knowingly pursuing his representation before the State Government which in our opinion was totally misdirected as the petitioner had neither moved any application before this court in his writ petition nor he appears to have been properly advised to pursue his cause against the order dated 20.10.2014. Thus the contention of Sri B.K. Singh that the petitioner has not committed any mistake is absolutely unfounded and we find that the petitioner has clearly attempted to seek benefit of an order which was an outcome of incorrect representation before this Court.
Apart from this, in both writ petitions the pleadings clearly and deliberately omit the description of sequence of events of the hearing before the Vice-Chairman on 22.9.2014 in which the petitioner had participated and the decision dated 20.10.2014 complying with the judgment dated 21.7.2014 of the High Court. The omission is also prominent in the list of dates and events. The supplementary filed does not give any explanation as to why such omission in the pleadings was attempted. To our mind the petition and the list of dates and events was drafted and sworn with a clear intent that gives an impression that it was done to withhold relevant information which was required to be narrated faithfully to avoid any opinion of suppression or concealment. The above mentioned facts were relevant and necessary for adjudication, inasmuch as, these facts take away the impact of the grounds on which the petitioner is questioning the order of the State Government. The said facts strike at the root of the bone of contention. Neither the petitioner nor the learned counsel have been able to give any satisfactory explanation about the same.
In the present case, inspite of the opportunity given by us vide order dated 3.12.2015, the supplementary affidavit does not express any acknowledgment or remorse on the above mentioned omission except for a passing sentence in the last line of Para 8 thereof by a qualified and guarded statement that no mistake has been committed, and even if the court thinks that a mistake has occurred, the petitioner may be pardoned. The reservation with which pardon has been sought is more of a justification as if the courts opinion may not be founded on a correct impression. We may clear any doubt in the mind of the petitioner and his counsel that the court has the onerous responsibility of discharging duties impartially while delivering justice but at the same time the responsibility of the litigant and his counsel as an officer of the Court is no less. If the same is lacking in bonafides, then such omissions are bound to end up in adverse impressions. We are thus constrained to make these observations with a hope that the courts are not confronted with such unsavoury situations in future.
The reason why we are mentioning these facts is that a writ petition is an original proceeding before the High Court where pleadings should be drafted with clarity and supported by material evidence as the entire assessment has to be gathered on the strength of such material. It is not a proceeding where oral testimony or evidence has to be separately led like in a civil court or such proceedings. The duty of a petitioner and his counsel is therefore greater while filing and settling drafts of pleadings in the writ jurisdiction which is also otherwise discretionary. It is for this reason that one has to approach under Article 226 of the Constitution with absolutely clean hands so as to avoid any impression of deliberate suppression.
Pleadings should not be saddled with necessary omissions so as to compel the court to excavate facts from remote corners of the records nor should the same be overburdened so as to virtually put patience itself on trial. It is common knowledge that with a heavy docket of cases and the pressure of work, relevant omissions that may be deliberate or careless or reckless, may have a hazardous impact on the outcome of a litigation. Lawyers as officers of the court have to therefore exercise their skill to effectively aid a court and avoid any such situation. A balanced presentation with the minimum necessary facts helps in understanding the controversy without any scope of speculation. We may also observe that as to whether a fact is relevant or not has to be taken into account but for that the existence of the pleading coupled with facts is necessary. The same cannot be a matter of indiscreet brevity. Shakespeare wrote in Hamlet
"Since brevity is the soul of wit,
And tediousness the limbs and outward flourishes,
I will be brief" (Act II Sc ii)
but brevity cannot be stretched to complete omission. Nor can brevity be encouraged to mean what Horace said,
"In labouring to be brief, I become obscure."
The necessary contents of pleadings can neither be simplified or over simplified by complete omission of bare necessary details. Brevity is an ornament of precision and not a tool for deliberate suppression or omission. Material omissions and suppressions have an element of wrong intent to manipulate results.
The court can always call upon a party to rectify any bonafide omission on a request if required in order to prevent any miscarriage of justice but this does not absolve the responsibility of disclosure of a faithful description of events in the drafting and pleadings by a litigant or his counsel while presenting a writ petition. This is necessary to reaffirm the trust that the court reposes in the presentation of petitions. Any deficit on that count can neither be appreciated or encouraged.
It should be remembered that the effort in a court of law is to find out the truth for ensuring justice. This exercise therefore cannot be a cat and mouse chase or an arena for a game of dice. A court is a temple of justice and not a place for unscrupulous litigants to gamble. The purity of proceedings are supposed to be sacrosanct. This purity is therefore also necessary in pleadings on oath. It is essential to the very cause of justice as the courts are repositories of ultimate faith. It is therefore a matter of confidence and trust that admits of no compromise on this score. We should not be construed to be either too sensitive or oversensitive as this is a matter of discipline of law. One fact here and another fact there would make a world of difference and may have bearing not in a mere litigation but a wider impact on society. Judgments at times change destinies and have the capacity to mould civilizations. We therefore cannot underplay or minimise the importance of correct and essential pleadings.
The petitioner has also assailed the order dated 20.10.2014 on merits. We have examined and heard the contentions of the petitioner on this issue as well and we find that even though the petitioner appears to be a clear fence sitter and an opportunist litigant, yet the submission raised that he being the highest bidder and the auction proceedings having been carried out in accordance with an advertisement cannot be accepted, inasmuch as, there is a plausible reason given by the Lucknow Development Authority indicating inadequate competitive bidders being the reason for cancellation of the auction proceedings. In our considered opinion, this being a matter of settlement of public largesse, the Lucknow Development Authority was well within its jurisdiction to cancel the auction proceedings if there were inadequate number of bidders which is also evident from the reasons recorded in the impugned order dated 20.10.2014 that are well founded and rational.
The decision in the case of Kalu Ram Ahuja (supra), proceeds on the factual foundation that a mere communication had been given by the Delhi Development Authority rejecting the highest bid and did not make any mention of a reason that may have prompted the Vice-Chairman to reject the bid, nor any record was produced to show that the decision of the Vice-Chairman was based on any rational and tangible reason. In that case some representation had been made by an Ex Municipal Member on the basis whereof the auction had been cancelled. This was taken by the Supreme Court to be an arbitrary exercise of power and held the orders passed therein by the Vice-Chairman was legally unsustainable.
In the instant case the reason does exist in the order of the Vice-Chairman, Lucknow Development Authority where it has been recorded that it was found that on account of inadequate competitive bidders participating in the auction it was found necessary to cancel the auction proceedings. The aforesaid reason is not contrary to the government order dated 6th February, 1997 on which reliance is being placed. The government order does not advocate any arbitrary exercise of power so as to compel the acceptance of highest bid in all circumstances. The said government order was only a guideline to be followed. The order dated 20.10.2014 categorically records that the then Vice-Chairman, Lucknow Development Authority in both the matters had clearly indicated the aforesaid reason for cancelling the auction which is on record. The Vice-Chairman was also correct in applying the law laid down by the Apex Court in the case of Meerut Development Authority Vs. Association of Management Studies and Another, and the decision in the case of U.P. Avas Evam Vikas Parishad and Others Vs. Om Prakash Sharma, and the decision in the case of Maa Binda Express Carrier and Another Vs. Northeast Frontier Railway and Others, to record a finding that merely because a person is a highest bidder he does not acquire any right unless his bid is accepted.
Apart from this, the Vice-Chairman has also appropriately recorded a finding that there was no element of malafides or discrimination or otherwise any other unlawful element in the decision making process reflected while cancelling the auction proceedings.
The petitioner had also received back the earnest money deposited by him.
In the aforesaid circumstances, the conclusion drawn by the Vice-Chairman is fully supported in law and does not suffer from any legal infirmity so as to warrant any interference under Article 226 of the Constitution of India.
The writ petitions do not raise any ground nor any facts have been pleaded so as to allow us to invoke our discretionary jurisdiction under Article 226 of the Constitution of India, moreso when the attempt of the petitioner has been, in a circumvented way, resulted in multiplicity of litigation on account of an order of the High Court that could not have been obtained without incorrect representation of facts as indicated above. We also do not find the explanation given by the petitioner to be bonafide in his supplementary affidavit and we accordingly dismiss the petition with costs.