TMI Blog2019 (1) TMI 1779X X X X Extracts X X X X X X X X Extracts X X X X ..... orders have been passed without following the principle of natural justice but in fact the show cause notice has been issued and the same has been responded by them, therefore the same is said to be active concealment on their part and thus the writ petitions deserve to be dismissed on the ground of suppression of material facts. The ground taken by the petitioners is violation of principle of natural justice but the same has been found to be a ground non-est because show cause notice has been issued which has been responded to, therefore, it will be said to be the material suppression of fact and hence the petitioners deserve to be given any benefit - Petition dismissed. - W.P.(C) Nos. 3140, 3179, 3141, 3150, 3201 and 3260 of 2018 - - - Dated:- 8-1-2019 - S.N. Prasad, J. For the Appellant : Awanish Shekhar, Sadhya Sahay and Sidhartha Roy, Advocates For the Respondent : Dhananjay Kr. Dubey, Sr. S.C.-I and Sumeet Gadodia, Advocate ORDER S.N. Prasad, J. 1. In all these writ petitions common questions are involved, therefore, these writ petitions have been listed together for its common hearing and are being disposed of by this common order. 2. Rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Jharkhand has been represented by the retained counsel for the State of Jharkhand, Jharkhand State Tourism Development Corporation has been represented by learned counsel Mr. Sumit Gadodia. State of Jharkhand has not filed counter affidavit but counter affidavit has been filed on behalf of Jharkhand State Tourism Development Corporation wherein stand has been taken that there is no illegality in the impugned order for the reason that the lease deed agreement have been entered in between authorities of the Bihar State Tourism Development Corporation as it then was but after creation of the State of Jharkhand, Jharkhand Tourism Development Corporation Ltd. taken over the jurisdiction within the state and property lying within the territorial jurisdiction of the State of Jharkhand. As per the lease deed agreement entered into between the parties, the specific condition has been stipulated at condition No. 4 to the effect that the lessee shall pay, on time, the municipal charges including holding tax, water cess etc. as levied by Deoghar Municipal Corporation or any other competent authority/authorities for the lease period payable in respect of aforesaid property including pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been stated that under the provision of condition No. 20 there is no stipulation made therein that any show cause would be issued before summarily affecting the lessee in case of violation of any terms and conditions of the lease deed agreement. 8. This Court has heard learned counsel for the parties at length, gone through the pleadings made on their behalf. The factual aspect which has been gathered by this Court is that the petitioners have entered into a lease deed agreement with the respondent-Tourism Development Corporation which is for the period of 66 years basing upon certain terms and conditions. Some of the conditions needs to be referred herein which is subject matter of adjudication of the issue involved in this case. Condition No. 4 which stipulates about making payment of the municipal charges which is referred hereinunder: The lessee shall pay, on time (as may be determined by the Lessor), to the all municipal charges including holding tax, water cess etc as levied by the Deoghar Municipal Corporation or any other competent authority/authorities for the lease period payable in respect of aforesaid property including proportionate share of such charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the notice of the lessor at any stage during lease period that the lease of the aforesaid property has been obtained by mis-representation or mis-statement or suppression of the fact or fraud or if the lessee has violated any of the terms and conditions of the lease agreement or if fails to clear all his/her dues including statutory charges/dues payable to the lessor or any other competent authority within three months of the same falling as dues, then the lessor shall have rights to take any or has acted as stated hereunder, i.e. lease may be terminated/cancelled without any compensation to the lease, the lessee shall be summarily evicted including penal interest therein shall be recovered by the lessee and all the property of the lessee situated in and around the said lease property shall be seized and shops of all the lessor and the entire proceeds shall be forfeited irrespective of the amount. The lessee shall be black listed and shall not be allowed to take part in future in any settlement process of any property of the lessor. 10. In the backdrop of this lease deed agreement the factual aspects raised by learned counsel for the parties has been appreciated by this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt of India in the case of S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar and Others, (2004) 7 SCC 166 wherein it has been held that the suppression of fact must be material one since had it not been suppressed, it would have been had effect on the merit of the case. It must be a matter which was material for consideration of the court, whatever view the court may have taken. Paragraph 13 of the judgment is quoted herein below for ready reference:- 13. As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the courts to deter a litigant from abusing the process of court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material for the consideration of the court, whatever view the court may have taken. Thus when the liability to income tax was questioned by an applicant on the ground of her non-residence, the fact that she had purchased and was maintaining a house in the country was held to be a material fact, the suppr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction. A person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But even if the said dirt is removed and the hands became clean, whether the relief would still be denied is the question. And while answering this their Lordship after discussing the judgment rendered in S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar and Others, (2004) 7 SCC 166 wherein the petitioner even on availability of alternative remedy prosecuted a proceeding under Article 226 for the same relief. Hon'ble Supreme Court has held that when a party has moved High Court under Article 226 and failed to obtain relief and then moved an application under Article 32 before this Court for the same relief, normally the court will not entertain the application under Article 32 but wherein appellate jurisdiction the order is not a speaking one or the matter has been disposed of on some other ground, this court, as, in a suitable case, entertain the application under Article 32 and as such it has been held that the fact a suit had already been filed by the appellant was not such a fact the suppression of such could have affected the final di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play hide and seek or to pick and choose the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of writ courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because the court knows law but not facts. 39. If the primary object as highlighted in Kensington Income Tax Commrs. is kept in mind, an applicant who does not come with candid facts and clean breast cannot hold a writ of the court with soiled hands . Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground of suppression of material facts as indicated hereinabove. 19. These writ petitions are also fit to be dismissed on the ground that the lease deed agreement has been entered into by the petitioners as well as the respondent-Jharkhand Tourism Development Corporation incorporating therein certain terms and conditions which are binding upon them being a bilateral contract but the admitted position is that Clause No. 4 which stipulates of making payment of municipal tax as per the detail given therein has admittedly not been paid by them as per their response as would be evident from one of the response annexed with the counter affidavit filed in W.P.(C) No. 3179 of 2018 wherein the copy of the show cause notice has been annexed as Annexure-E and response has been annexed as Annexure-F and from its perusal it transpires that payment of maintenance charge and holding charge has been denied to be a liability of the petitioners which suggest that they have not paid the municipal charges as per the details enumerate under Condition No. 4. So far as subletting of the premises, the specific stand has been taken by the respondent-Jharkhand Tourism Development Corporation that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relates to condition No. 4 which has been admitted by the petitioners as per their reply to the show cause and condition No. 9 even if on the ground of jurisdiction it will be referred before the authority, there will be no change in the circumstance because ultimately it is either the Deputy Commissioner or the Sub-Divisional Magistrate will have to ensure protecting the property of the State Tourism Development Corporation and as such if on the ground of jurisdiction it will be remitted before the authority, there will be no change in position and therefore it will lead to empty formality and futile exercise. 21. Reference in this regard may be made to the judgment rendered in the case of Escorts Farms Ltd. v. Commissioner, Kumaon Division, Nainital, U.P. others, reported in (2004) 4 SCC 281 wherein Hon'ble the Apex Court has held at paragraph-64 which is being quoted herein below: 64. Right of hearing to a necessary party is a valuable right. Denial of such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. In these appeals preferred by the holder of lands and some other transferees, we have found that the terms of g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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