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RAMJI DAS v STATE - CW Case No. 4925 of 1996 [2006] RD-RJ 1940 (13 September 2006)




Ramji Das. VERSUS State of Raj. & Ors. 13.09.2006.


Mr.Vimal Choudhary, for the petitioner.

Mr.B.K.Sharma, Deputy Government Advocate.


Heard learned counsel for the parties.

At the time when the writ petition came up for admission on 22.10.1996, the court after hearing the learned counsel for the petitioner passed following order:-

"Learned counsel states that the assessment of the year 1986-87 made on the basis of the assessment of the year 1987-88 vide Annexure-1, is without jurisdiction. He further submits that the appeal has been decided by a person, who has initiated the enquiry against the petitioner.

Issue notice to the respondents returnable within 6 weeks. Meanwhile the respondents shall not recover the excess royalty amount for a period of 8 weeks, provided the petitioner furnishes the solvent security for the amount in question to the satisfaction of respondent No.4 with an undertaking within 2 weeks that in case he fails, he will return the amount of royalty alongwith interest.

Put up after 6 weeks."

Learned counsel for the petitioner has submitted that the above fact as recorded in the order dated

S.B.Civil Writ Petition No.4925/1996

-:2:- 22.10.1996 is corroborated by the perusal of Annexure-9 which goes to show that Shri Y.C.Gupta, the then

Superintendent Mining Engineer, Kota is the person who had conducted the inspection and checked the record relating to this case and had conducted the inquiry as would be evident from Annexure-9 which has been filed by the petitioner and the same person Shri Y.C.Gupta heard the appeal in the instant case and passed the judgment in appeal (Annexure-6) dated 03.06.1995. In the writ petition also the petitioner has made an averment and raised ground No.6 to the same fact. Ground No.6 of the writ petition reads as follows:-

"(vi) That the learned First Appellate Authority respondent No.3 was at the relevant time

Superintending Mining Engineer, Kota who inspected the site on 6.3.1987 and submitted his report on 20.3.1987 and a copy of the report was served upon the petitioner by the then Shri

Y.C.Gupta Superintending Mining Engineer, Kota, now learned first appellate authority on 23.3.87. In pursuance of this report the petitioner also submitted parawise reply but the learned Assessing Authority did not consider the submissions made by the petitioner and based the whole assessment on the repot submitted by the

Superintending Mining Engineer, Kota who heard the appeal of the petitioner. In such circumstances the learned Additional Director respondent No.3 who then was Superintending

Mining Engineer, Kota should not have heard the appeal of the petitioner but whould have sent to the Director for further orders of hearing by any other Additional Director or by the Director himself. Despite that the learned Additional

Director Shri Y.C.Gupta heard the appeal. Thus, the learned Additional Director seriously erred in deciding the appeal of the petitioner. Hence, the order of learned Additional Director is without competence and jurisdiction and therefore nullity which deserves to be quashed and set aside. A photo stat copy of the inspection report and reply thereto by the

S.B.Civil Writ Petition No.4925/1996

-:3:- petitioner are submitted herewith and marked as

ANNEXURES 9 and 10 respectively."

On the face of it, the aforesaid argument that person or authority who conducted the inquiry should not have heard the appeal is very convincing. Since the said argument was made on behalf of the petitioner at the time when the matter came up for admission on 22.10.1996 as recorded in the said order dated 22.10.1996, the court was inclined to admit the writ petition and, therefore, the orders for issuing notice to the respondents were passed and also an interim order was passed in favour of the petitioner.

However, a closure look at the order Annexure-6 which was passed by the appellate authority Additional

Director Shri Y.C.Gupta goes to show that appellate authority had specifically put this to the petitioner who was the appellant at that time that the matter had been initiated on the inquiry conducted by him and whether the petitioner would be willing to argue the appeal before him. The relevant portion of the order of Additional

Director Shri Y.C.Gupta may be reproduced hereunder :-

" ..., , ,


Thus, from the above, it is clear that the appellate authority proceeded to hear the appeal only after the petitioner agreed to argue the appeal as it was submitted that he had no objection to the appeal being heard by

S.B.Civil Writ Petition No.4925/1996


Shri Y.C.Gupta who had conducted the inquiry in the matter who thus had given given an option to the petitioner that he was willing to transfer the appeal to another authority if the petitioner so desires but the petitioner did not object to the same and proceeded to argue the appeal before him. It is also not contended that the above statement as recorded in the appellate order is incorrect.

In view of the above, I am of the view that the petitioner was not entitled to raise the aforesaid contention and the averment made in the body of the petition was a misleading one and the contention raised was a mis-statement of fact on which the court issued the order dated 22.10.1996.

Learned counsel for the petitioner submitted that that was a concession made by the counsel appearing on behalf of the petitioner before the appellate authority and he had no authority on behalf of the petitioner to make such a concession.

I have considered the above submission made by the learned counsel for the petitioner and I am of the view that if that was the case, the plea to that effect should have been raised differently. In the instant case, the objection which has been taken and recorded in the order dated 22.10.1996 as was submitted on behalf of the petitioner was that the appellate authority had no jurisdiction to hear the appeal when the inquiry had been conducted by him as if despite the objection the appellate authority proceeded to hear the appeal. The petitioner has not stated that he was given an option by

S.B.Civil Writ Petition No.4925/1996

-:5:- the appellate authority as mentioned in the order


In view of the above, I am of the view that a serious mis-statement of fact has been made by the petitioner before the court when the writ petition was heard for admission as also by making the averments contained in the ground No.6 of the writ petition.

The remedy under Article 226 of the Constitution of

India to say the least is discretionary remedy and the petitioner must come with clean hands before the court.

In the case of Hari Narain Vs. Badri Das reported in AIR 1963 SC 1558, the Hon'ble Supreme Court took a strict view with regard to making misstatements of the fact in the pleadings. No doubt the aforesaid case was of Special

Leave Petition filed under Article 136 of the

Constitution of India but nonetheless I am of the view that principles governing the pleadings as enumerated in the aforesaid judgment are squarely applicable to writ petitions under Article 226 of the Constitution of India.

While dealing with a similar situation, though it was submitted before the Hon'ble Supreme Court that the ground which was alleged to be a misstatement had not been raised at the time when the appeal was argued for admission, the Hon'ble Supreme revoked the leave granted and the S.L.P. was dismissed. The relevant portion of the judgment of Hon'ble Supreme in this regard reads as under:-

"(9) On the other hand, Mr.Setalvad contended that he had appeared at the time when special leave was granted and to the best of his recollection he had not referred to these

S.B.Civil Writ Petition No.4925/1996

-:6:- grounds, but had merely urged his contention that the High Court had misconstrued S.13(1)(a) of the Act. We have no hesitation in accepting

Mr.Setalvad's statement; but, in our opinion, in dealing with the respondent's prayer that special leave granted to the appellant should be revoked, what was actually urged before the

Court cannot be decisive of the matter and may not even be very material. It is true that in the present case, special leave was granted on the 26 th September, 1962 and it is possible for

Mr.Setalvad to recall what he argued before the

Court when special leave was granted. But it is necessary to bear in mind that the appeal may come on for hearing long after special leave is granted, that counsel appearing at the stage of admission may not be same as at the stage of final hearing, and the Bench that granted special leave may not necessarily deal with the appeal at the final stage. Therefore, it is no answer to the respondent's contention that though the material statements in the special leave petition may be substantially inaccurate, though not wholly untrue, those statements may not have influenced the Court in granting special leave. Mr.Setalvad has also invited our attention to the fact that the impugned statements and grounds are substantially copies from the averments made in the appeal before the

High Court. That may be so, but the fact still remains that two important statements which, if true, may have been of considerable assistance to the appellant in invoking the protection of

S.13(1)(a) even on the construction placed by the High Court on that section are found to be untrue, and that, in our opinion, is a very serious infirmity in the petition itself. It is of utmost importance that in making material statements and setting forth grounds in applications for special leave care must be taken not to make any statements which are inaccurate, untrue or misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact containing in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading. That is why we have come to the conclusion that in the present

S.B.Civil Writ Petition No.4925/1996

-:7:- case, special leave granted to the appellant ought to be revoked. Accordingly special leave is revoked and the appeal is dismissed. The appellant will pay the costs of the respondent."

In the light of the above and in the facts of the present case, the aforesaid statement which was made at the time of admission as recorded in the ordersheet dated 22.10.1996 and as contained in para 6 of the grounds are untrue and misleading in the light of the observations made in Annexure-6, the order passed by the appellate authority and relying upon the same as is recorded in the ordersheet dated 22.10.1996 the court was persuaded to issue notices in the matter and even pass interim order in favour of the petitioner. The petition suffers from mis-statement of fact and the petitioner has not come with clean hands and the petitioner has taken undue advantage of these.

In view of the above misstatement made in the pleadings and the statement made on behalf of the petitioner at the time when the petition was heard for admission on 22.10.1996, I am of the view that this writ petition deserves to be dismissed and is hereby dismissed. The interim order dated 22.10.1996 passed by this court stands vacated and the stay application also stands dismissed.


Solanki DS, Jr.P.A.


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