# Sunil Kumar v. State of U.P.and another

- **Citation:** (2003) 1 ILRA 127
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-01-31
- **Case number:** Civil Misc. Writ Petition No. 20105 of 2000
- **Bench:** M. Katju, Prakash Krishna
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunil-kumar-v-state-of-u-p-and-another-39891
- **Pages:** 6

## Headnote

Sri R.G. Padia
Sri Prakash Padia
Sri K.K. Roy
Sri Ramesh Chandra Singh
Sri Ram Harsh
Sri P.K. Gupta
Sri U.K. Uniyal
S.C.

Constitution
of
India,
Article
226-
Extraordinary jurisdiction- Petitioner not
approached with clean hand- guilty of
suppressions material facts not entitled
for any relief claimed for- Petition
rejected.

## Text

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1All] Sunil Kumar V. State of U.P.and another 127
on the point that the Magistrate has
directed to submit a report under section
173 Cr.P.C. which will mean that the
Magistrate directed the police, police
station Jaswant Nagar to submit a charge
sheet . The learned counsel for the
revisionist has submitted that only charge
sheet can be submitted under Section 173
Cr.P.C. The relevant provision of Section
173 Cr.P.C. shows that as soon as the
investigation is completed, the officer in
charge of the police station shall forward
the same to a Magistrate empowered to
take cognizance of the offence on a police
report. It necessarily does not mean the
submission of the charge sheet. The
charge sheet shall be submitted only if the
case is made out against the accused. If no
case is made out, the police has to
proceed under section 169 Cr.P.C. and
submit a final report. In both the
circumstances, the police has to submit a
report under section 173 Cr.P.C. It may
either be in the form of charge sheet or in
the shape of final report. Thus this
apprehension, on the part of revisionist ,
that the order of the Magistrate directing
the police to submit a report under section
173 Cr.P.C. would mean the direction to
submit a charge sheet, is without basis.
The impugned order does not necessarily
direct the I.O. to submit a charge sheet.
The I.O. shall, therefore, be free to submit
a charge sheet or a final report after
completion of the investigation.

3. With the above observation, the
revision is disposed of finally.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.01.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition No. 20105 of 2000

S.A.K. Roy

...Petitioner
Versus
District Magistrate, Allahabad and others

 ...Respondents

Counsel for the Petitioner:
Sri R.O.V.S. Chauhan
Sri Vishnu Gupta

Counsel for the Respondents:
Sri R.G. Padia
Sri Prakash Padia
Sri K.K. Roy
Sri Ramesh Chandra Singh
Sri Ram Harsh
Sri P.K. Gupta
Sri U.K. Uniyal
S.C.

Constitution
of
India,
Article
226-
Extraordinary jurisdiction- Petitioner not
approached with clean hand- guilty of
suppressions material facts not entitled
for any relief claimed for- Petition
rejected.

(Delivered by Hon'ble M. Katju, J.)

1. We have heard learned counsel
for the parties.

2. This writ petition has been filed
praying for a writ of certiorari to quash
the
auction
notice
dated
7.3.2000,
Annexure 6 to the writ petition and the
auction held in pursuance thereof on
15.3.2000 and all other proceedings in
pursuance thereto.
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128 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
3. It is alleged in paragraph 2 of the
writ petition that the father of the
petitioner was owner of house no. 8 and
8-A, Muir Road, Allahabad, 12 Kutchery
Road, Allahabad and House no. 1 Sir
Suleman Road, Allahabad. He submitted
a return under section 6 of the U.P. Urban
Land (Ceiling and Regulation), Act 1976.
The
competent
authority
declared
15560.13 sq. meter total land as surplus
land out of the aforesaid premises. Out of
house no. 8 and 8-A, Muir Road ,
Allahabad 11997.68 sq. meter land was
declared surplus. Out of house no. 12
Kutchery Road, Allahabad an area of
397.92 sq. meter land was declared
surplus and out of land of house no. 1 Sir
Suleman Road, Allahabad an area of
3164.53 sq. meter land was declared as
surplus. Out of 11997.68 sq. meter land
the father of the petitioner sold 11488 sq.
meter land to the Prayag Upniveshan
Avas Evam Nirman Sahkari Samiti Ltd.,
Dariyabad, Allahabad and the State
Government by its order dated 19.2.1983
granted exemption under section 20 (2) of
the Act. True copy of the exemption order
is Annexure 1 to the writ petition.

4. It is alleged in paragraph 6 of the
writ petition that after the death of the
petitioner's
father
on
1.6.1998
the
petitioner and his brother are exclusive
owner of the aforesaid house no. 8 and 8A Muir Road, Allahabad. In paragraph 7
of the writ petition it is alleged that the
respondent did not take any proceeding
under Section 10 (5) of the Act and did
not call the petitioner to vacate the
aforementioned surplus land. As regards
the portion of the house no. 8 and 8-A
Muir Road, Allahabad after the sale of its
portion to the aforesaid housing society, it
is in possession of S.P. Gangapar,
Allahabad and it was allotted in his favour
on 17.5.1999 by the Rent Control and
Eviction Officer. True copy of the
allotment order is Annexure 2 to the writ
petition.

5. The Urban land (Ceiling and
Regulation), Act 1976 were repealed by
U.P. Act no. 15 of 1999. However, clause
3 of the Repealing Act saved such land in
which the possession of the vacant land
had already been taken over by the State
Government. It is alleged in paragraph 12
of the writ petition that the petitioners
have not been dispossessed from any part
of the land of the aforesaid house no. 8
and 8-A, Muir Road, Allahabad and they
have not been paid compensation.

6. In paragraph 14 of the writ
petition it is stated that the petitioner has
come to know that the respondents have
notified the aforesaid property for auction
vide Annexure 6 to the writ petition. In
paragraph 16 of the writ petition it is
stated that the petitioners have come to
know that the aforesaid property had been
auctioned on 15.3.2000. However, it is
alleged that the auction purchaser has not
been given possession.

7. A counter affidavit has been filed
on behalf of the A.D.A. In paragraph 4 of
the same it is stated that after the father of
the petitioner filed a return under section
6 he did not participate in the proceedings
after the notice under section 8 (3) of the
Act and hence an exparte order dated
30.3.1982 was passed under section 8 (4).
True copy of the order dated 30.3.1982 is
Annexure CA 1. Consequently, a final
statement under section 9 of the Act was
issued on 25.5.1982 which was duly
served on the returnee. Photocopy of the
final statement is Annexure CA 2 to the
counter affidavit. An appeal being appeal
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1All] S.A.K. Roy V. District Magistrate, Allahabad and others 129
no. 20/82 was filed by the returnee which
was allowed and the matter was remanded
back to the competent authority for
deciding the matter afresh after giving
opportunity of hearing to the returnee.
True copy of the order of the District
Judge, Allahabad is Annexure CA 3
Consequently
an
objection
dated
21.9.1984 was filed which was rejected
vide letter dated 22.2.1986 and the order
dated 30.3.1982 passed under section 8(4)
of the Act was confirmed. True copy of
the objection and order dated 21.9.1984
and the order dated 22.2.1986 are
Annexures CA 4 and CA 5 to the counter
affidavit.

8. Aggrieved by the order dated
22.2.1986 the returnee filed an application
dated 24.2.1986 for recalling of the order
dated 20.2.1986 praying for a decision on
merits. True copy of the application dated
24.2.1986 is Annexure CA 6. This
application
dated
24.2.1986
was
confirmed vide order dated 23.4.1986.
True copy of the order dated 23.5.1987
confirming the order dated 20.2.1986 and
rejecting the application dated 18.4.1986
and 31.3.1987 is Annexure CA 7. Yet
another application was moved by the
returnee on 1.6.1987 for recall of the
order dated 23.5.1987 and this application
was decided on 11.3.1988 by which order
dated
23.5.1987
was
recalled
on
17.3.1988 was fixed for hearing. True
copy of the application dated 1.6.1987
and order dated 11.3.1988 are Annexures
CA 8 and CA 9 to the counter affidavit.

9. Several dates were fixed after
11.3.1988 and ultimately because of the
non-participation
and
non-cooperative
attitude of the petitioner the matter was
decided again exparte on 29.9.1995
whereby the initial order dated 30.3.1982
was adopted as the order under section 8
(4) of the Act. True copy of the order
dated 29.9.1995 is Annexure CA 10.
Thereafter a notification under section 10
(3) were issued on 1.2.1996 vide
Annexure CA 11. In consequence to the
notification published on 15.6.1996 under
section 10 (3) of the Act a notice was
issued on 20.2.1997 vide Annexure CA
12 to the counter affidavit. The petitioner
moved an application on 10.8.1998 for
recall of the earlier orders under Section 8
(4) vide Annexure CA 13. The competent
authority disposed of the said application
by order dated 10.3.1999 vide Annexure
14 to the counter affidavit and the surplus
land was predetermined. This order dated
10.3.1999 modified the earlier order to a
certain extent and a notification under
section 10 (3) of the Act was published
and as a result surplus land was declared
which remained vested in the State of
11997.68 sq. meter out of the total
property of the returnee which was
confined to the two premises of the
returnee i.e. 8 and 8-A, Muir Road,
Allahabad. So far as the other premises
are concerned, these were not declared
vacant and they are still available to the
petitioners.

10. In paragraph 9 of the counter
affidavit it is stated that the petitioners are
not in possession of the land in question.
In paragraph 12 it is stated that the vacant
possession of the portion had already been
taken and the same had been auctioned
and possession had already been taken
over by the auction purchaser.

11. A counter affidavit has also been
filed on behalf the respondents 5 and 6
and we have perused the same. In
paragraph 3 of the same it is stated that
the respondents 5 and 6 have already
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130 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
invested huge amount in the purchase of
the land in dispute. They have duly
purchased the land in question in a legal
and bona fide manner. In paragraph 6 of
the counter affidavit it is stated that the
land in question has already been declared
surplus vide order dated 10.3.1999
Annexure CA 1. In paragraph 8 it is stated
that the vacant part of the premises was
put to auction by the A.D.A. and the
respondents 5 and 6 made their bids
which was the highest bid and their bid
was
accepted.
Subsequently,
they
deposited 25% of the total bid amount i.e.
2,25,000/- which was duty accepted by
the Secretary, A.D.A. vide order dated
15.3.2000
Annexure
CA-2.
The
respondents 5 and 6 were directed to
deposit the balance 75% and that too was
deposited well within time i.e. before
30.3.2000. Subsequently, the auction was
confirmed in favour of the respondents 5
and 6 vide order dated 10.4.2000
Annexure CA 4.

12. In paragraph 13 of the counter
affidavit it is stated that the possession
had already been given to the respondents
5 and 6 and the auction has been
confirmed but these relevant facts was
suppressed by the petitioner while filing
the writ petition and by such suppression
the petitioner obtained the interim order
dated 1.5.2000. The interim order was
obtaining without arraying respondents 5
and 6 as parties.

13. In paragraph 20 of the counter
affidavit it is stated that the petitioner
moved a highly belated application dated
7.8.1998 for recalling the order dated
29.9.1995. The competent authority
allowed the said application by order
dated 10.3.1999. This order has become
final and never been challenged in any
competent court of law. In paragraph 24 it
is stated that possession has already been
taken of the land in question by A.D.A.
and it has been given to the respondents 5
and 6. In paragraph 30 it is stated that the
auction was confirmed on 10.4.2000 and
possession was given thereafter to the
respondents 5 and 6.

14. We have carefully perused the
affidavits in this case and heard the
submissions of the learned counsel for the
parties.

15. It is evident from a perusal of
Annexure CA 1-A of the counter affidavit
of Lalta Prasad that the public auction of
the surplus land in question had already
been held by the A.D.A. on 15.3.2000
which was confirmed on 10.4.2000 vide
Annexure CA 3 and the possession had
been given to the respondents 5 and 6 as
is
evident
from
the
certificate
of
possession, copy of which is Annexure
CA 4.

16. Thus it is evident that the
possession had been with respondents 5
and 6 since 10.4.2000 and it has wrongly
been alleged by the petitioners that they
are still in possession.

17. In our opinion, the petitioner has
not come to the Court with clean hands as
he has suppressed very relevant facts in
this petition as stated in paragraphs 13,18
and 24 of the counter affidavit of Lalta
Prasad. In our opinion this concealment of
material facts was done by the petitioner
for obtaining the interim order dated
1.5.2000 of this Court. In our opinion, the
petition is liable to be dismissed on this
ground alone namely that the petitioner
has not come with clean hands as he has
suppressed material facts.
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1All] S.A.K. Roy V. District Magistrate, Allahabad and others 131
Writ jurisdiction is discretionary
jurisdiction. One of the grounds for
refusing to exercise jurisdiction under
Article 226 is that the petitioner has not
come with clean hands.

18. In Asiatic Engineering Co. V.
Achhru Ram, AIR 1951 All 746 (para 51)
a Full Bench of this Court observed :

"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 means of a
petition for exercise of the 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 & from giving
incorrect information to the Court. Courts
for their own protection, should not
attempt, in any manner, to misuse this
valuable right by obtaining ex parte orders
by
suppression, misrepresentation or
misstatement of facts. Applying this
principle to the present case, we feel that,
in this case, the petitioner Company has
disentitled itself to ask for a writ of
prohibition
by
material
suppression,
misrepresentations
&
misleading
statements which have been found by us
above."

19. In the present case the petitioner
suppressed and concealed the facts in this
writ petition that possession of the land
had been taken by the State and handed
over
to
the
auction
purchasers
(respondents 5 and 6), as is evident from
the certificate of possession, copy of
which is Annexure CA 4 to the counter
affidavit. He also suppressed the fact of
the auction by the A.D.A. on 15.3.2000
and of its confirmation on 10.4.2000. The
affidavit in support of the writ petition
was sworn on 27.4.2000, and it is not
possible for us to believe that the
petitioner did not know of the above facts.
Yet the petitioner has falsely stated in
paragraphs 12 and 18 of the writ petition
that they are in possession. There is no
mention in the writ petition of the auction
of the land in dispute. It is therefore
evident
to
us
that
the
petitioner
suppressed all these material facts in order
obtain the interim order of this Court
dated 1.5.2000.

20. This practice of suppressing
material facts to obtain interim orders
from this Court has assumed colossal
dimensions. This Court has been too
indulgent to this malpractice, and the
result has been that a large number of
petitions are being filed in the Court
concealing and suppressing relevant and
material facts only to obtain interim
orders, and knowing that because of the
heavy pendency of cases in the Court stay
vacation applications are not taken up for
hearing for years. The only way to stop
this malpractice is to dismiss such writ
petitions on the ground that the petitioner
has not come with clean hands, without
going into the merits. Writ jurisdiction is
equity jurisdiction, and he who seeks
equity must come with clean hands.

21. Since in this case the petitioner
has not come with clean hands as he has
suppressed material and relevant facts we
dismiss this writ petition on this ground
without going in the merits. Interim order
is vacated.
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132 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.1.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition No. 1704 of 2001

Dr. Vijay Laxmi Agarwal
...Petitioner
Versus
The Vice Chancellor, Mahatma Jyotiba
Phoole Ruhil Khand University, Bareilly
and others

 ...Respondents

Counsel for the Petitioner:
Sri Ishrat Ali
Sri Surendra Prasad
Sri Irshad Ali

Counsel for the Respondents:
Dr. R.G. Padia
Sri A.K. Pandey
Sri Govind Saran

Constitution of India, Article 226-Practic
8 C Procedure- averments made in writ
petition- No specific denial - mere bald
denial- shall be treated as admission.

Held - Para 7

The replies to paragraphs 11 and 12 of
the
writ
petition
are
contained
in
paragraphs 27 and 28 of the counter
affidavit
of
the
committee
of
management. The only answer contained
therein is that the allegations contained
in paragraphs 11 and 12 of the writ
petition are denied. It is settled law that
if there is no specific denial of the
allegations in the petition then a mere
bald denial will not do and it will be
treated as an admission. In paragraphs
27 and 28 of the counter affidavit there
is merely a bald denial and not a specific
denial of the allegations contained in
paragraphs 11 and 12 of the writ
petition. We have, therefore to hold that
the petitioner was not given any show
cause notice or opportunity of hearing
before passing the impugned order.

Statutes
of
Ruhil
Khand
University
Statute
No.11.20-appointment
of
officiating
principal-Senior
most
lecturer-superseded-No
show
cause
notice given held illegal-senior most
lecturer is entitled to work as officiating
Principal.

Held.- Para 9

In
our
opinion,
this
would
avoid
arbitrariness and would be sufficient
compliance of the principles of natural
justice. Fairness demands that a person
should know why some action is being
taken against him. Since ordinarily the
senior most teacher has a right to be
appointed as Principal, he must at least
know why the action is being taken
against him and he must be given a show
cause notice and opportunity of hearing
(which need not be personal hearing)
before taking the action.

(Delivered by Hon'ble M. Katju, J.)

1. Heard Sri Ishrat Ali learned
counsel for the petitioner and Dr. R.G.
Padia
for
Dr.
(Smt.
Neerja
Garg
respondent no. 3.

2. A counter affidavit has been filed
on behalf of respondent no. 2, the
Committee of Management of S.B.D.
Mahila Mahavidyalaya, Dhampur, district
Bijnor through Dr. Awadhesh Saxena.

3. The short point involved in this
case is as to who is entitled to be
appointed as officiating Principal of the
institution till the regular selection is
made by the U.P. Higher Education
Services Commission. Admittedly the
petitioner Dr. Vijay Laxmi Agarwal is
senior to Dr. Neerja Garg Statute 11.20 of