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M/S Sharda Glass Industries & Another v. State Of U.P. & Others - WRIT - C No. 9252 of 2006 [2006] RD-AH 5747 (9 March 2006)


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Court No. 34

Civil Misc. Writ Petition No. 9252 of 2006

M/s. Sharda Glass Industries & Anr.


State of U.P. & Ors.


Hon. Dr. B.S. Chauhan, J.

Hon. Dilip Gupta, J.

The only contention raised in this petition is that after the commencement of the Recovery of Debts Due to Bank and Financial Institution Act, 1993, the amount advanced to the petitioner as a loan in 1992 cannot be recovered as arrears of land revenue. The petitioner has not denied his liability to pay the amount but his contention is that the recovery cannot be made as arrears of land revenue.

The petitioner has not filed the copy of the agreement executed with the U.P. Financial Corporation and nor has he indicated the schedule of payment. He has also not shown any inclination to bring these documents on record. Infact, he has not even disclosed and nor he is willing to disclose the amount paid by him. The learned counsel for the petitioner on 15.2.2006 had sought time to take instruction from his client as to whether he is willing to deposit the amount with the respondents/creditors directly. Even today we asked the learned counsel whether his client was willing to deposit any part of the admitted liability with the creditors or with the Registrar General of this Court so that the technical objection would not survive and we could ask the respondents to give some reasonable time to the petitioner to deposit the balance amount or examine his case on the quantum of amount but the learned counsel only stated that the petitioner is entitled to the relief sought by him as the Court cannot uphold the recovery by such a mode which is in contravention of law.

In such a situation when the liability is admitted, it has to be seen whether any relief can be granted to the petitioner under Article 226 of the Constitution of India even if his contention is accepted.

In our opinion, the grant of relief under Article 226 of the Constitution is discretionary and the Court can decline relief where the petitioner seeks to secure a dishonest advantage or perpetuate unjust gain. In the instant case, as stated above, the petitioner has not denied the liability and all that he contends is that recovery cannot be made as arrears of land revenue. In such circumstances, we do not consider it to be a fit case where the petitioner should be permitted to raise this issue.

In Andhra Pradesh State Financial Corporation Vs. M/s. GAR Re-Rolling Mills & Anr., AIR 1994 SC 2151 the Hon'ble Supreme Court observed:-

"A court of equity, when exercising its equitable jurisdiction under Article 226 of the Constitution must so act as to prevent perpetration of a legal fraud and the courts are obliged to do justice by promotion of good faith, as far as it lies within their power. Equity is always known to defend the law from clefty evasions and new subtelities invented to evade law."

In the case of M.P. Mittal Vs. State of Haryana & Ors. AIR 1984 SC, 1888, the Hon'ble Supreme Court held as follows:-

"The appeal arises out of a writ petition, and it is well settled that when a petitioner invokes the jurisdiction of the High Court under Article 226 of the Constitution, 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. This is a case where the High Court was fully justified in refusing relief."

The Hon'ble Supreme Court in State of Maharastra Vs. Prabhu (1994) 2 SCC 481 considered the equity jurisdiction of the High Court under Article 226 of the Constitution and pointed out as follows:-

"Even assuming that the construction placed by the High Court and vehemently defended by the learned counsel for respondent is correct should the High Court have interfered with the order of Government in exercise of its equity jurisdiction................. Where the Government or any authority passes an order which is contrary to rules or law it becomes amenable to correction by the courts in exercise of writ jurisdiction. But one of the principles inherent in it is that the exercise of power should be for the sake of justice. One of the yardstick for it is if the quashing of the order results in greater harm to the society then the court may restrain from exercising the power...........Therefore, even if the order of the Government was vitiated either because it omitted to issue a proper show-cause notice or it could not have proceeded against the respondent for his past activities the High Court should have refused to interfere in exercise of its equity jurisdiction as the facts of the case did not warrant interference.......... 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."

The same position was reiterated by the Hon'ble Supreme Court in the case of Chandra Singh Vs. State of Rajasthan & Anr. AIR 2003 SC 2889 in which it was observed as follows:-

"Issuance of a writ of Certiorari is a discretionary remedy (Champalal Binani v. CIT, West Bengal, AIR 1970 SC 645). The High Court and consequently this Court while exercising its extra ordinary jurisdiction under Articles 226 or 32 of the Constitution of India may not strike down an illegal order although it would be lawful to do so. In a given case, the High Court or this Court may refuse to extend the benefit of a discretionary relief to the applicant."

In ONGC Ltd. Vs. Sendhabhai Vastram Patel & Ors,. (2005) 6 SCC 454, the Supreme Court held as follows:-

"It is now well settled that the High Court and the Supreme Court while exercising their equity jurisdiction under Articles 226 and 32 of the Constitution as also Article 136 thereof may not exercise the same in appropriate cases. While exercising such jurisdiction, the superior courts in India may not strike down even a wrong order only because it would be lawful to do so. A discretionary relief may be refused to be extended to the appellant in a given case although the Court may find the same to be justified in law. [See S.D.S. Shipping (P) Ltd. V. Jay Container Services Co. (P) Ltd. (2003) 9 SCC 439]."

The observations made in the aforesaid decisions compel us not to grant relief to the petitioner.

For the reasons stated above, we are not inclined to entertain this petition. It is, accordingly, dismissed.

Date - 9.3.2006



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