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Article 226 in The Constitution Of India 1949
the Contempt of Courts Act, 1971
Advocate General, State Of Bihar vs Madhya Pradesh Khair Industries ... on 5 March, 1980
Daryao And Others vs The State Of U. P. And Others(And ... on 27 March, 1961
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Madras High Court
T.T.Balsamy vs Smt.Sheela Balakrishnan on 12 September, 2012
       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 12/09/2012

CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR

Contempt Petition (MD)No.31 of 2012
and
W.P.(MD)No.6678 of 2011

T.T.Balsamy				.. Petitioner
					
Vs.

1.Smt.Sheela Balakrishnan,
  Additional Chief Secretary/
  The Principal Secretary to
  Government, Municipal Administration
  and Water Supply Department,
  Secretariat, Chennai-9	

2.The Joint Secretary to Government
  Municipal Administration
  and Water Supply Department,
  Secretariat, Chennai-9

3.Mr.S.Chandramani,
  The Deputy Secretary to Government,
  Municipal Administration and Water Supply 	
  Department,
  Secretariat, Chennai-9

4.Mr.Chandra Kant B Kamble,
 The Commissioner of Municipal
 Administration, Chepauk, Chennai	... Respondents

PRAYER

Petition filed under Section 11 of the Contempt of Courts Act, 1971 to
punish the respondents herein for having disobeyed the order of this Court made
in W.P.(MD)No.6678 of 2011, dated 29.07.2011.

!For Petitioner  ... Mr.UM.Ravichandran
^For Respondents ... Mr.T.S.Mohamed Mohideen
		    Addl. Government Pleader
:ORDER

Alleging non compliance of the order made in W.P.(MD)No.6678 of 2011, dated 29.07.2011 contempt petition (MD)No.31 of 2012 has been filed against Smt.Sheela Balakrishnan, Additional Chief Secretary/The Principal Secretary to Government, Municipal Administration and Water Supply Department, Secretariat, Chennai-9, the Joint Secretary to Government of the same Department, Mr.S.Chandramani, the Deputy Secretary to the Government, Municipal Administration and Water Supply Department, Secretariat, Chennai-9, and Mr.Chandra Kant B.Kamble, the Commissioner of Municipal Administration, Chennai.

2.Record of proceedings shows that the contempt petition has been adjourned on earlier occasions and when the matter came up on 10.09.2012 Mr.T.S.Mohamed Mohideen, Learned Additional Government Pleader submitted that after considering the case of the petitioner with reference to the orders passed in W.P.No.13120 of 2011, dated 09.06.2011 and the order made in W.P.(MD)No.6678 of 2011, the Government have rejected the case of the petitioner for alteration of date of birth on the ground that the application was not made within a period of five years from the date of entering into service, as per Rule 49(C) of the Tamil Nadu State and Subordinate Service Rules, 1955.

3.Perusal of the Government Letter in Pri 18857/ME/1/2011/11/, 05.4.2012 discloses that before filing of writ petition in W.P.(MD)No.6678 of 2011, the Madurai Bench of this Court, the petitioner has filed another writ petition in W.P.No.13120 of 2011 in the Principal Bench of this Court, praying for a direction to the Government to consider alteration of date of birth. Therefore, Registry was directed to secure the entire case papers in W.P.No.13120 of 2011 and the orders passed thereon, by the Principal Bench.

4.Writ petition in W.P.No.13120 of 2011 has been filed on 06.06.2011 and the petitioner has sought for the following prayer:

"Writ Petition under Article 226 of the Constitution of India praying for a writ of certiorarified mandamus calling for the records of the 3rd respondent pertaining to the order dt.01/07/1994 made in Letter No.8554/ME/94-2 and 1st respondent herein pertaining to the order made in Letter No.5996/ME-1/2011-3, dated 13.05.2011 and quash the same and consequently direct the 1st respondent to alter the date of birth of the petitioner from 04.07.1953 to 29.04.1955 in his service records with all consequential benefits".

5.Letter No.5996/ME/1/2011-3, dated 13.05.2011 of the Principal Secretary to the Government, Municipal Administration and Water Supply Department, Chennai reads as follows:

"Letter No.5996/ME-1/2011-3, dated 13.05.2011 From Thiru.K.Ashok Vardhan Shetty I.A.S Principal Secretary to Government To Thiru.T.T.Balsamy, Commissioner, Tiruchirappalli City Municipal Corporation, Trichy.

Sir, Sub:Establishment-Date of Birth Alteration-Request of Joint Director of Municipal Administration Thiru.T.T.Balsamy, now Commissioner Tiruchirappalli City Municipal Corporation to alter his date of birth to 29.04.1955 instead of 04.07.1953 - Regarding.

Ref:1.Letter (MS)No.154, Personnel & Administrative Reforms (S) Department, dated 24.05.1995,

2.Representation from Thiru.T.T.Balsamy, Commissioner, Tiruchirappalli City Municipal Corporation, dated 28.02.2011

3.Commissioner of Municipal Administration Letter Roc.No.14947/2011/C1, dated 30.03.2011.

I am directed to invite attention to your representation cited and to inform that your request to alter your date of birth from 04.07.1953 to 29.04.1955 cannot be complied with as per Rule 49(c) of the General Rules for the Tamil Nadu State and Subordinate Service, 1955. Your representation is accordingly rejected.

Yours faithfully, for Principal Secretary to Government".

6.Writ Petition in W.P.(MD)No.6678 of 2011 has been filed in the Madurai Bench of this Court, on 23.06.2011. The prayer made in the latter writ petition is as follows:

"Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus, directing the first respondent to comply the Sub Registrar report in letter No.82 of 2011, dated 28.04.2011 without insisting limitation as per Rule 49(C) of the Tamil Nadu State Subordinate General Service Rules, 1955 and to pass necessary orders to the claim of the petitioner and alter the date of birth as 29.04.1955 with all consequential benefits on the representation dated 06.06.2011"

7.Perusal of the supporting affidavits in both the writ petitions shows that the averments made in both the writ petitions, from paragraphs 1 to 12 upto the words Letter No.5996/ME/1/2011/3, Municipal Administration and Water Supply Department, dated 13.05.2011 are one and the same. In W.P.(MD)No.6678 of 2011 filed on 23.06.2011 in Madurai Bench of this Court, at Paragraph 12, after the date 13.05.2011, the petitioner has added only one sentence which reads thus: "The petitioner has further submitted that on 06.06.2011, the petitioner sent a review petition to the first respondent along with all the documents. The review petition is still pending before the first respondent".

8.Grounds raised in both the supporting affidavits, from grounds (a) to (i), are common in both the writ petitions.

9.Ground (j) in W.P(MD)No.6678 of 2011 and ground (n) in W.P.No.13120 of 2011 are one and the same. Grounds (q) in the two writ petitions upto the words "should have been extended to me" are one and the same.

10.In W.P.(MD)No.6678 of 2011 after the above said words in ground

(q) the petitioner has added the following:

"The Hon'ble Supreme Court has not passed any objectionable order in this regard while considering the request of the petitioner by the first and second respondents. Letter No.154, Personnel and Administration Reforms (S) Department, dated 24.05.1955 is quoting the Hon'ble Supreme Court in Civil Appeal No.5422 of 1994 merely interpretation decided on August 3 1994. Hence interpretation is not applicable to the petitioner's case".

11.The other grounds raised in the supporting affidavits filed in the writ petitions are as follows:

Madurai Bench W.P.(MD)No.6678 of 2011 Principal Bench W.P.No.13120 of 2011

(o)I produced genuine documents as to my date of birth and requested for alteration of the date of birth in my service registers. Pursuant to my representation, enquiry was conducted and the Government after due enquiry satisfied themselves with regard to the genuineness of the documents and my claim for change of date of birth in the service register. After having accepted my representation and conducted enquiry, the impugned order rejecting my application under Rule 49(c) is wrong and liable to be set aside.

(k)As per the order of the Hon'ble Tribunal made in O.A.No.4283 & 4284/1992 dated 12.11.1993 and Hon'ble High Court in its W.P.No.25389 of 2004 accepted and implemented by Government in 27.10.1994 in favour of Tmt.Gnanam. Similar order was implemented by the Government in 31.05.2006 in favour of Thiru.S.Sathyanathan. Another order was implemented by the Government in 02.11.1993 in favour of Thiru.T.P.Ekambaram. Since the case of applicant also falls within four corners of this case, the Government should have extended the same benefit to me also.

(p)I am advised to submit that a judgment reported in 2003(2) CTC page 103 our Hon'ble High Court in para 5 has held that "we are not impressed by this contention there is a specific G.O on record which is G.O.Ms.No.395 dated 15.12.1992, where by an amendment was effected to rule 49 and subsequently there is another G.O in G.O.Ms.No.66 dated 02.02.1996 where by further amendment was made which has the effect that such limitation is not applicable to Government servants who entered in service before 19.08.1970. Both the above G.O numbers 395, dated 16.12.1992 and G.O.Ms.No.66, dated 02.02.1996 when read together, the obvious result would be that the limitation of 5 years made applicable to erstwhile Rule 49 would not be so applicable in cases of the Government servants who have entered the service before 19.08.1970. In the wake of this rule there will be no question of finding fault with the order of the Tribunal. There is no question of limitation applicable in this case. Therefore, the judgment of High Court in Second Appeal granting declaration regarding date of birth would be binding and the Government and the Government is bound to treat the first respondent has having been born on 16.07.1945". In the above case the Hon'ble Court confirmed that the public document would be binding on Government and my date of birth genuineness report being the public document which also binding on Government without any limitation principle".

(l)In the similar facts and circumstances the Tamil Nadu Administration Tribunal, Chennai in their OA No.1376 of 2001 filed by S.Marimuthu, Tahsildar, Villupuram Revenue Unit prayed for alteration of date of birth from 08.06.1943 to 16.07.1945. It has been revealed by the TAT and awarded to the petitioner has benefited interim injunction granted by Tamil Nadu Administration Tribunal, Chennai, the Government of Tamil Nadu has passed Government Order (2D 207, Revenue SER (1) Department, dated 29.06.2001) in favour of the petitioner to retain his service beyond the date of superannuation i.e., 30.06.2011.

(m)The Supreme Court has in AIR 1988 SC 1796 and 2009 (7) SCC 203 held that as per Section 35 of the Evidence Act, the birth certificate alone is authenticated proof of age and the SSLC certificate is not proof of birth date. As per 2009 (1) SCC 80. I am entitled to change of date of birth from the date of knowledge.

(o)In similar circumstance, the Hon'ble Supreme Court of India decision was taken in their Civil Appeals Reported Nos.865-86 Corum No.4236-37 22.07.2002 in SLPs (c) (2007) (15) SCC of 553 2002 dated of B.N.Kirpal, J, Chief Justice of Supreme Court and K.G.Balakrishnan and Arjit Pasayat,JJ. In it has been revealed at fag end of retirement the appellant will be treated as being service as per his date of birth 04.06.1945.The appellant will be entitled to reinstatement and all the consequential benefits including arrears of salary often deducting the terminal benefits if received by the appellant.

(p)Government has retained Rule 49(c) of the Tamil Nadu Subordinate Servants Rules. The said rule provides for consideration of genuine cases for change of date of birth after a period of 5 years, if the said representation is supported by genuine and authenticated documents. I produced genuine documents as to my date of birth and requested for alteration of the date of birth in my service registers. Pursuant to my representation, enquiry was conducted and the Government after due enquiry satisfied themselves with regard to the genuineness of the documents and my claim for change of date of birth in the service register. After having accepted my representation and conducted enquiry, the impugned order rejecting my application under Rule 49(c) is wrong and liable to be set aside"

12.As stated supra, in W.P.No.13120 of 2011, filed on 06.06.2011, in the Principal Bench of this Court, the petitioner has challenged the letter dated 13.05.2011, by which the Principal Secretary to the Government, Municipal Administration and Water Supply Department, Chennai has rejected the request of the petitioner, dated 28.02.2011 and informed the petitioner that his request for alteration of his date of birth from 04.07.1953 to 29.04.1955 cannot be complied with, as per Rule 49(c) of the General Rules for the State and Subordinate Service Rules, 1955. The writ petition is for a Certiorarified Mandamus.

13.In the said writ petition filed in the Principal Bench of this Court, the petitioner has also relied on some of the judgments said to have been passed in respect of few individuals. The Hon'ble Mr.Justice N.Paul Vasanthakumar, after hearing Mr.Ravi Shankar Rao, learned counsel for the petitioner and Mr.V.Subbiah, learned Special Government Pleader, on behalf of the respondents, and after considering the facts and circumstances of the case, and taking note of the judgment of the Supreme Court in State of Tamil Nadu Vs.T.V.Venugopalan reported in 1994(6)SCC 302 has dismissed writ petition No.13120 of 2011 on 09.06.2011. Thus, this Court has exercised its power of judicial review under Article 226 of the Constitution of India, tested the correctness of the order, dated 13.05.2011 passed by the Principal Secretary to the Government, Municipal Administration and Water Supply Department, Chennai and upheld the abovesaid order of the Government.

14.Paragraphs 2 to 4 of the order made in W.P.No.13120 of 2011, dated 09.06.2011 are extracted hereunder:

"2.The application filed by the petitioner seeking correction of the date of brith was rejected by the third respondent by the impugned order dated 04.08.1994 by invoking Rule 49(c) of the Tamil nadu Government Subordinate Service Rules, 1955 which contemplates that any alteration in the date of birth as entered in the official records shall be entertained only if such application is made within five years of entry into service. The petitioner's subsequent application was also rejected by the first respondent by order dated 13.05.2011 on the very same ground.

3.The petitioner was appointed on 20.10.1984. The application submitted by the petitioner is dated 27.11.1993. Thus, it is evident that the petitioner applied for alteration of date of birth after 9 years of entry into service. The said application cannot be entertained by virtue of the above referred statutory provision. The Supreme Court in 1994(6)SCC 302(State of Tamil Nadu Vs.T.V.Venugopalan) considered the very same issue and the Supreme Court held that the application for correction of the date of birth of an in-service employee should be made within five years from the date of entry into service and any application made for correction of the date of birth after the expiry of five years would not be permitted as the government employee loses his right to make such application.

4.In view of the above statutory bar, the impugned order is legal and no case is made out to interfere with the said order. The writ petition is dismissed. No costs. The connected miscellaneous petition is closed".

15.After the dismissal of the writ petition in W.P.No.13120 of 2011, dated 09.06.2011, the petitioner has filed W.P.(MD)No.6678 of 2011 in Madurai Bench of this Court, on 23.06.2011, for a Writ of Mandamus, for a direction against the first respondent therein to comply the Sub Registrar's report in letter No.82 of 2011, dated 28.04.2011, without insisting on limitation, as per Rule 49(C) of the Tamil Nadu State Subordinate General Service Rules, 1955 and to pass necessary orders on the claim of the petitioner and alter the date of birth as 29.04.1955, with all consequential benefits on the representation dated 06.06.2011. At this juncture, it should be noted that the order dated 13.05.2011 passed by the Principal Secretary to the Government, Municipal Administration and Water Supply Department, Chennai is mainly on the ground that the application of the petitioner for alteration of date of birth has been made, after five years from the date of entry into service and hence, applying the limitation provided for in rule 49(C) of the Tamil Nadu State Subordinate Services Rules, the request has been rejected. When a Certiorarified Mandamus, filed in the Principal Bench of this Court, to set aside the abovesaid order and consequential direction for alteration of date of birth, from 04.07.1953 to 29.04.1955, sought for by issuance of a Mandamus has been rejected in Madurai Bench of this Court, the petitioner without disclosing the filing of the earlier writ petition and its dismissal has filed W.P.(MD)No.6678 of 2011 on 23.06.2011, and has sought for a Mandamus to comply with the Sub Registrar's report in Letter No.82 of 2011, dated 28.04.2011. When the Principal Bench has considered the correctness of an administrative order dated 13.05.2011, and held that rule 49(C) has been correctly applied to the case of the petitioner and dismissed the writ petition, the petitioner knowing fully well has chosen to file another writ petition against the same respondents, couching the prayer in such a manner that what has been rejected earlier by applying the period of limitation, should be considered, once again by the Government without taking into consideration the period of limitation. What has been rejected directly by the Principal Bench of this Court is sought to be achieved indirectly by a Writ of Mandamus, from Madurai Bench of this Court.

16.Before the Principal Bench of this Court, in W.P.No.13120 of 2011, though, the petitioner has averred about the report of the Sub Registrar in Letter No.82 of 2011, dated 28.04.2011 he has not sought for any direction in the nature of Mandamus for consideration of the Sub Registrar's report, but has chosen to challenge the order dated 13.05.2011 of the Principal Secretary to Government, Municipal Administration and Water Supply Department, Chennai rejecting his request for alteration of date of birth and consequently, prayed for a mandamus to alter the date of birth as 29.04.1955.

17.In W.P.No.13120 of 2011, before the Principal Bench of this Court, Writ of Certiorari has been sought for, to quash the order, dated 13.05.2011 of the Principal Secretary to Government, Municipal Administration and Water Supply Department, Chennai and a Mandamus has been sought for, to alter the date of birth as 29.04.1955. Both the prayers have been rejected.

18.The petitioner, who has held a high office, as Joint Director of Municipal Administration and worked as Commissioner, Tiruchirappalli City Municipal Administration, Tiruchirapalli, at the time of filing of the Writ Petition No.6678 of 2011, ought to have brought to the notice of the Madurai Bench of this Court, the filing of the earlier writ petition in W.P.No.13121 of 2011 in the Principal Bench of this Court and its dismissal on 09.06.2011, in the supporting affidavit in W.P.(MD)No.6678 of 2011.

19.W.P.No.13120 of 2011 has been filed on 06.06.2011 and that the same has been dismissed on 09.06.2011 by the Principal Bench of this Court. In spite of the same, in the supporting affidavit, in W.P.(MD)No.6678 of 2011, filed on 26.06.2011, after ground No.(q), the petitioner has deliberately made the following declaration:

"I have not approached this Hon'ble Court or any other court or forum or Tribunal for the same or similar relief".

20.Having sworn to an affidavit on 06.06.2011, in W.P.No.13120 of 2011 filed before the Principal Bench of this Court, on the same set of facts, verbatim reproduced averments upto paragraph 12, with the only exception of an additional sentence in W.P.(MD)No.6678 of 2011 that he has filed a review petition on 06.06.2011 and having raised the same grounds upto (i) in both the writ petitions, and raised some additional grounds challenging the order of rejection, dated 13.05.2011, before the Principal Bench of this Court, the petitioner has filed the present writ petition in W.P.(MD)No.6678 of 2011, on 23.06.2011 on the file of Madurai Bench of this Court, stating that he has not approached this Hon'ble Court or any other forum or tribunal for the same or similar relief.

21.At the risk of repetition but for better appreciation as to whether the petitioner, has sought for the same or similar relief, particularly, with reference to the prayer for alteration of date of birth, the prayers made in both the writ petitions are extracted hereunder:

Prayer in W.P.No.13120 of 2011 Prayer in W.P(MD)No.6678 of 2011 Writ Petition under Article 226 of the Constitution of India praying for a writ of certiorarified mandamus calling for the records of the 3rd respondent pertaining to the order dt.01/07/1994 made in Letter No.8554/ME/94-2 and 1st respondent herein pertaining to the order made in Letter No.5996/ME-1/2011-3, dated 13.05.2011 and quash the same and consequently direct the 1st respondent to alter the date of birth of the petitioner from 04.07.1953 to 29.04.1955 in his service records with all consequential benefits. "Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus, directing the first respondent to comply the Sub Registrar report in letter No.82 of 2011, dated 28.04.2011 without insisting limitation as per Rule 49(C) of the Tamil Nadu State Subordinate General Service Rules, 1955 and to pass necessary orders to the claim of the petitioner and alter the date of birth as 29.04.1955 with all consequential benefits on the representation dated 06.06.2011"

22.Thus, it is manifestly clear that the petitioner has suppressed the filing of the earlier writ petition No.13120 of 2011, on the same cause of action, with reference to the prayer for alteration of date of birth in the latter W.P.(MD)No.6678 of 2011 and has furnished a false declaration to the Madurai Bench of this Court, as if no writ petition has been filed in any other Court or forum. In W.P.No.13120 of 2011, when once, the Principal Bench of this Court had already exercised the powers under Article 226 of the Constitution, and declined to issue any writ in the nature of Certiorarified Mandamus, to quash the rejection order of the Government, dated 13.05.2011, and when there is no appeal against the said order in W.P.No.13120 of 2011, the order dated 13.05.2011, has reached a finality. In other words, the High Court has found no fault on the part of the respondents, in applying rule 49(C) of the Tamil Nadu State and Subordinate Services Rules to the case of the petitioner. Limitation applied has been held as correct. Consequently, mandamus sought for to correct the date of birth has been refused. In such circumstances, then in the course, a co-equal Bench would have followed the said decision had the decision rendered in the previous writ petition in W.P.No.13120 of 2011, dated 09.06.2011, on the same set of facts, been brought to the notice of the another Bench. Even the maintainability of W.P(MD)No.6678 of 2011 would have been raised at the time of numbering the writ petition or at the time of admission by this Court. From the above, it could be seen that for the very same relief ie., for alteration of date of birth from 04.07.1953 to 29.04.1955, the petitioner has approached two Benches of this Court exercising powers and jurisdiction under Article 226 of the Constitution.

23.In the case on hand, the petitioner has indulged in forum shopping, for alteration of date of birth in two different Benches of this Court. When the Principal Bench of this Court has denied issuance of writ of Certiorari and declined to issue any directions in the nature of Mandamus to alter the date of birth, he has clearly made a false declaration in Madurai Bench and had the factum of dismissal been brought to the notice of this Court, writ petition in W.P.(MD)No.6678 of 2011 would not have even heard, on merits and this Court would have issued any directions in the nature of Mandamus to pass orders on the basis of the representation dated 06.06.2011 which is diametrically opposite to the decision of the Principal Bench of this Court in W.P.No.13120 of 2011, dated 09.06.2011. There is clear suppression.

24.Record of proceedings in W.P.(MD)No.6678 of 2011 filed in Madurai Bench of this Court shows that the present writ petition had come up for admission on 24.06.2011, after the dismissal of the W.P.No.13120 of 2011, dated 09.06.2011 in the Principal Bench of this Court. On 24.06.2011, the learned Additional Government Pleader has been directed to take notice and that Registry has been directed to post the writ petition immediately after admission. The matter has been adjourned to 01.07.2011. Thereafter, the matter has been directed to be posted after one week from 01.07.2011. As per the entry in the service register, the petitioner was due to retire on 31.07.2011 on attaining the age of superannuation. Therefore, it is obvious that having filed the writ petition on 23.06.2011 in this Bench, after the dismissal of the earlier writ petition No.13120 of 2011, he has pressurised the Court to take up the matter immediately. As stated supra, had the petitioner brought to the notice this Bench about the filing of the writ petition No.13120 of 2011 and its dismissal on 09.06.2011 and also averred in the supporting affidavit W.P.(MD)No.6678 of 2011, this Court would not have even entertained the writ petition.

25.Considering all the above aspects, when the contempt application came up for hearing, learned counsel for the petitioner was asked to explain as to how the petitioner could file two writ petitions, on the same set of facts, in two different Benches of this Court, and was further asked to explain on the aspect of suppression of filing an earlier writ petition, forum shopping and abuse of process of Court and also to make his submission as to why the order passed in writ petition in W.P.(MD)No.6678 of 2011 by the Madurai Bench should not be rescinded and appropriate cost should not be levied.

26.In reply, Mr.UM.Ravichandran, learned counsel for the petitioner submitted that both the writ petitions are filed for different prayers. According to him, the cause of action for filing the writ petition(MD)No.6678 of 2011 in the Madurai Bench of this Court, was due to the fact that the petitioner's review petition dated 06.06.2011 submitted to the Principal Secretary to the Government, Municipal Administration and Water Supply Department, Chennai, was not disposed of and therefore, the petitioner was constrained to prefer a second writ petition in Madurai Bench for a mandamus, directing the respondents to alter the date of birth as 29.04.1955, on the basis of representation, dated 06.06.2011. He submitted that the cause of action in both the writ petitions is entirely distinct and therefore, the decision rendered by the Principal Bench of this Court in W.P.13120 of 2011 dated 09.06.2011 would not operate as res judicata. In support of his contention, he relied on a judgment in M/s.Anwar Khan Mehboob & Co., Vs. State of Madhya Pradesh and others.

27.He further submitted that non disclosure of filing of the writ petition No.13120 of 2011, in the Principal Bench and the orders passed thereon in W.P.(MD)No.6678 of 2011, was not an intentional suppression to obtain any favourable orders from this Court. According to him, the grounds made in W.P.No.13120 of 2011 were against the order dated 13.05.2011 rejecting the request of the petitioner for alteration of date of birth. Whereas the prayer for Writ of Mandamus, in W.P.(MD)No.6678 of 2011 was to direct the respondents to comply with the Sub Registrar's report and both the writ petitions were for different purpose. He reiterated that the non disclosure of filing another writ petition in the Principal Bench was not wilful.

28.For the abovesaid reasons, he prayed that this Court need not take any serious view as it was not intentionally done.

29.Heard the learned counsel for the petitioner and perused the materials available on record.

30.Facts leading to the filing of the writ petition in two different Benches of this Court are one and the same. May be the grounds vary in respect of the challenge to the order dated 13.05.2011. But one thing is very clear that when the petitioner has preferred a writ petition in W.P.No.13120 of 2011 before the Principal Bench of this Court, he has not only sought for a prayer to quash the order dated 13.05.2011, but has also prayed for a Mandamus to alter the date of birth. As stated supra, in the present writ petition, the petitioner has added only one sentence, viz., "The petitioner further submitted that on 06.06.2011, the petitioner sent a review petition to the first respondent alongwith all the documents. The review petition is still pending before the first respondent".

31.That application seemed to have been sent on 06.06.2011 when he had filed the writ petition in W.P.No.13120 of 2011 in the Principal Bench on 06.06.2011 and that the writ petition has been dismissed on 09.06.2011. When the finality, as regards the prayer for alteration of date of birth has been rejected by the Principal Bench of this Court on 09.06.2011 itself, the petitioner ought to have brought to the notice of this Court, about the filing of the writ petition for the same cause of action ie., for alteration of date of birth in the supporting affidavit in W.P.(MD)No.6678 of 2011, filed in the Madurai Bench of this Court. He cannot feign ignorance of the fact of filing of a writ petition in the Principal Bench of this Court, on the same set of facts.

32.At the risk of repetition, the declaration given by the petitioner in writ petition (MD)No.6678 of 2011 is reproduced.

"I have not approached this Hon'ble Court or any other court or forum or Tribunal for the same or similar relief"

33.Thus, it is evident that there is clear suppression of filing of an earlier writ petition before this Court. On the aspect of suppression, this Court deems it fit to consider few decisions:

34.In Arunima Baruah v. Union of India reported in 2007 (6) SCC 120, wherein, at Paragraphs 11 to 14, it held as follows:

"11. The court's jurisdiction to determine the lis between the parties, therefore, may be viewed from the human rights concept of access to justice. The same, however, would not mean that the court will have no jurisdiction to deny equitable relief when the complainant does not approach the court with a pair of clean hands; but to what extent such relief should be denied is the question.

12. It is trite law that so as to enable the court to refuse to exercise its discretionary jurisdiction suppression must be of material fact. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction. It is also trite that 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 become clean, whether the relief would still be denied is the question.

13.In Moody v. Cox [(1917) 2 Ch. 71: (1916-17) All ER Rep 548 (CA)], it was held: (All ER pp. 555 I-556 D) It is contended that the fact that Moody has given those bribes prevents him from getting any relief in a court of equity. The first consequence of his having offered the bribes is that the vendors could have rescinded the contract. But they were not bound to do so. They had the right to say "no, we are well satisfied with the contract; it is a very good one for us; we affirm it". The proposition put forward by counsel for the defendants is: "It does not matter that the contract has been affirmed; you still can claim no relief of any equitable character in regard to that contract because you gave a bribe in respect of it. If there is a mistake in the contract, you cannot rectify it, if you desire to rescind the contract, you cannot rescind it, for that is equitable relief." With some doubt they said: "We do not think you can get an injunction to have the contract performed, though the other side have affirmed it, because an injunction may be an equitable remedy." When one asks on what principle this is supposed to be based, one receives in answer the maxim that anyone coming to equity must come with clean hands. I think the expression "clean hands" is used more often in the textbooks than it is in the judgments, though it is occasionally used in the judgments, but I was very much surprised to hear that when a contract, obtained by the giving of a bribe, had been affirmed by the person who had a primary right to affirm it, not being an illegal contract, the courts of equity could be so scrupulous that they would refuse any relief not connected at all with the bribe. I was glad to find that it was not the case, because I think it is quite clear that the passage in Dering v. Earl of Winchelsea [(1787) 1 Cox Eq Cas 318: 2 Bos & P 270], which has been referred to, shows that equity will not apply the principle about clean hands unless the depravity, the dirt in question on the hand, has an immediate and necessary relation to the equity sued for. In this case the bribe has no immediate relation to rectification, if rectification were asked, or to rescission in connection with a matter not in any way connected with the bribe. Therefore that point, which was argued with great strenuousness by counsel for the defendant, Hatt, appears to me to fail, and we have to consider the merits of the case.

14. In Halsbury's Laws of England, 4th Edn., Vol. 16, pp. 874-76, the law is stated in the following terms:

"1303. He who seeks equity must do equity.-In granting relief peculiar to its own jurisdiction a court of equity acts upon the rule that he who seeks equity must do equity. By this it is not meant that the court can impose arbitrary conditions upon a plaintiff simply because he stands in that position on the record. The rule means that a man who comes to seek the aid of a court of equity to enforce a claim must be prepared to submit in such proceedings to any directions which the known principles of a court of equity may make it proper to give; he must do justice as to the matters in respect of which the assistance of equity is asked. In a court of law it is otherwise: when the plaintiff is found to be entitled to judgment, the law must take its course; no terms can be imposed.

* * * 1305. He who comes into equity must come with clean hands.-A court of equity refuses relief to a plaintiff whose conduct in regard to the subject- matter of the litigation has been improper. This was formerly expressed by the maxim 'he who has committed iniquity shall not have equity', and relief was refused where a transaction was based on the plaintiff's fraud or misrepresentation, or where the plaintiff sought to enforce a security improperly obtained, or where he claimed a remedy for a breach of trust which he had himself procured and whereby he had obtained money. Later it was said that the plaintiff in equity must come with perfect propriety of conduct, or with clean hands. In application of the principle a person will not be allowed to assert his title to property which he has dealt with so as to defeat his creditors or evade tax, for he may not maintain an action by setting up his own fraudulent design.

The maxim does not, however, mean that equity strikes at depravity in a general way; the cleanliness required is to be judged in relation to the relief sought, and the conduct complained of must have an immediate and necessary relation to the equity sued for; it must be depravity in a legal as well as in a moral sense. Thus, fraud on the part of a minor deprives him of his right to equitable relief notwithstanding his disability. Where the transaction is itself unlawful it is not necessary to have recourse to this principle. In equity, just as at law, no suit lies in general in respect of an illegal transaction, but this is on the ground of its illegality, not by reason of the plaintiff's demerits."

35.In Prestige Lights Ltd., v. State Bank of India reported in 2007 (8) SCC 449, at Paragraphs 27, 33, 34 and 35, held as follows:

33. It is thus clear that though the appellant- Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the Writ Court may refuse to entertain the petition and dismiss it without entering into merits of the matter.

34. The object underlying the above principle has been succinctly stated by Scrutton, L.J., in R v. Kensington Income Tax Commissioners, [(1917) 1 KB 486 : 86 LJ KB 257 : 116 LT 136], in the following words: "(I)t has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should made a full and fair disclosure of all the material facts, not law. He must not misstate the law if he can help the Court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the Court will set aside, any action which it has taken on the faith of the imperfect statement". (emphasis supplied)

35.It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a Writ Court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, the Court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible."

36.In Udyami Evam Khadi Gramodyog Welfare Sanstha and another v. State of Uttar Pradesh reported in 2008 (1) SCC 560, at Paragraphs 16 and 17, the Apex Court, held as follows:

"16. A writ remedy is an equitable one. A person approaching a superior court must come with a pair of clean hands. It not only should not suppress any material fact, but also should not take recourse to the legal proceedings over and over again which amounts to abuse of the process of law. In Advocate General, State of Bihar v. M.P. Khair Industries[(1980) 3 SCC 311], this Court was of the opinion that such a repeated filing of writ petitions amounts to criminal contempt.

17. For the reasons aforementioned, there is not merit in this appeal which is dismissed accordingly with costs. Counsel's fee quantified at Rs.50,000."

37.The contention that the petitioner had not intentionally withheld the filing of the writ petition before the Madurai Bench of this Court cannot be accepted as it is clear from both the affidavits that he has sought for a direction to the respondents for alteration of date of birth. The ultimate goal of the petitioner is one and the same. For that purpose, he had indulged in forum shopping. As regards forum shopping, this Court deems it fit to consider few decisions.

38.In Chetak Construction Ltd., v.Om Prakash reported in 1998(4) SCC 577, the Supreme Court at Paragraph 16, held that, "a litigant cannot be permitted choice of the forum and every attempt at forum shopping must be crushed with a heavy hand.

39.In Tamil Nadu Mercantile Bank Shareholders Welfare Association (2) V.S.C.Sekar reported in 2009(2) SCC 784, at Paragraph 51, held that the superior Courts of this Country must discourage forum shopping. A person seeking equity must do equity. A party cannot take recourse to a machination which amounts to abuse of process of Court.

40.The contention of the learned counsel for the petitioner that the filing of an earlier writ petition was not intentionally suppressed and therefore, this Court should take a lenient view of the matter cannot be accepted for the reason that the petitioner had not only suppressed the fact of filing of the writ petition No.13120 of 2011 and the orders passed thereon, but has attempted to secure an order from this Bench, for alteration of date of birth, when the Principal Bench of this Court had already declined to grant the relief. The petitioner has made a calculated attempt to circumvent the orders passed by the Principal Bench of this Court. He has attempted and achieved in getting an order from this Bench, by abuse of process of law. The action of the petitioner, is clearly a product of fraud played on this Court. No appeal has been filed against the order made in W.P.No.13120 of 2011. When a writ of Certiorari, has been declined, the petitioner has abused the process of law and made submissions as if the issue was alive and which has necessitated this Court to hear W.P.(MD)No.6678 of 2011 and pass orders by issuing a mandamus. To maintain a decorum, contrary orders on the same set of facts should not be passed.

41.Abuse of process of law is per se apparent. In Advocate-General, State of Bihar v. Madhya Pradesh Khair Industries reported in 1980 (3) SCC 311, the Apex Court, at Paragraphs 7 and 8, held as follows:

"7. Section 2(c) of the Contempt of Courts Act defines criminal contempt as follows:

"(c) 'Criminal Contempt' means the publication (whether by words, spoken or written, or any signs, or by visible representations, or other wise) of any matter or the doing of any other act whatsoever which-

(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of any court; or

(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner." While we are conscious that every abuse of the process of the court may not necessarily amount to contempt of court, abuse of the process of the court calculated to hamper the due course of a judicial proceeding or the orderly administration of justice, we must say, is a contempt of court. It may be that certain minor abuses of the process of the court may be suitably dealt with as between the parties, by striking out pleadings under the provisions of Order 6 Rule 16 or in some other manner. But, on the other hand, it may be necessary to punish as a contempt, a course of conduct which abuses and makes a mockery of the judicial process and which thus extends its pernicious influence beyond the parties to the action and effects the interest of the public in the administration of justice. The public have an interest, an abiding and a real interest, and a vital stake in the effective and orderly administration of justice, because, unless justice is so administered, there is the peril of all rights and liberties perishing. The court has the duty of protecting the interest of the public in the due administration of justice and, so, it is entrusted with the power to commit for contempt of court, not in order to protect the dignity of the court against insult or injury as the expression "Contempt of Court" may seem to suggest, but, to protect and to vindicate the right of the public that the administration of justice shall not be prevented, prejudiced, obstructed or interfered with. "It is a mode of vindicating the majesty of law, in its active manifestation against obstruction and outrage." [Per Frankfurter, J. in Offutt v. U.S., (1954) 345 US 11] "The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope." [Per Judge Curtis-Raleigh quoted in Fnison v. Baker, (1972) 1 All ER 997, 1006]

8. In HALSBURY'S LAWS OF ENGLAND (4th Edn., Vol. 9, para 38), there is a brief discussion of when abuse of the process of the court may be a punishable contempt. It is said:

"38. Abuse of process is general.- The court has power to punish as contempt any misuse of the court's process. Thus the forging or altering of court documents and other deceits of like kind are punishable as serious contempts. Similarly, deceiving the court or the court's officers by deliberately suppressing a fact, or giving false facts, may be a punishable contempt.

Certain acts of a lesser nature may also constitute an abuse of process as, for instance, initiating or carrying on proceedings which are wanting in bona fides or which are frivolous, vexatious, or oppressive. In such cases the court has extensive alternative powers to prevent an abuse of its process by striking out or staying proceedings or by prohibiting the taking of further proceedings without leave. Where the court, by exercising its statutory powers, its powers under rules of court, or its inherent jurisdiction, can give an adequate remedy, it will not in general punish the abuse as a contempt of court. On the other hand, where an irregularity or misuse of process amounts to an offence against justice, extending its influence beyond the parties to the action, it may be punished as a contempt."

42.In S.P.Sawhney v. Life Insurance Corporation of India reported in 1991 (2) SCC 318, the Supreme Court held that multiple proceedings adopted by the petitioner therein, for claiming the same relief arising out of the same cause of action, amounts to abuse of process of Court.

43.In M.Nagabhushana v. State of Karnataka reported in 2011(3) SCC 408, the Apex Court reiterating the principles of res judicata and abuse of process of Court, as follows:

"12. The principles of res judicata are of universal application as they are based on two age-old principles, namely, interest reipublicae ut sit finis litium which means that it is in the interest of the State that there should be an end to litigation and the other principle is nemo debet bis vexari, si constat curiae quod sit pro una et eademn causa meaning thereby that no one ought to be vexed twice in a litigation if it appears to the court that it is for one and the same cause. This doctrine of res judicata is common to all civilised system of jurisprudence to the extent that a judgment after a proper trial by a court of competent jurisdiction should be regarded as final and conclusive determination of the questions litigated and should for ever set the controversy at rest.

13. That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law inasmuch as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of res judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of res judicata is not a technical doctrine but a fundamental principle which sustains the rule of law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing court for agitating on issues which have become final between the parties.

18. Therefore, any proceeding which has been initiated in breach of the principle of res judicata is prima facie a proceeding which has been initiated in abuse of the process of court.

19. A Constitution Bench of this Court in Devilal Modi v. STO [AIR 1965 SC 1150], has explained this principle in very clear terms: (AIR p. 1152, para 7) "7. . But the question as to whether a citizen should be allowed to challenge the validity of the same order by successive petitions under Article 226, cannot be answered merely in the light of the significance and importance of the citizens' fundamental rights. The general principle underlying the doctrine of res judicata is ultimately based on considerations of public policy. One important consideration of public policy is that the decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice (vide Daryao v. State of U.P. [AIR 1961 SC 1457])."

20. This Court in AIMO case1 explained in clear terms that principle behind the doctrine of res judicata is to prevent an abuse of the process of court. In explaining the said principle the Bench in AIMO case1 relied on the following formulation of Somervell, L.J. in Greenhalgh v. Mallard [(1947) 2 All.ER 255 (CA)] (All ER p. 257 H): (AIMO case [2006(4)SCC683], SCC p. 700, para

39) "39. . 'I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them.' " (emphasis supplied in AIMO case) The Bench in AIMO case also noted that the judgment of the Court of Appeal in Greenhalgh was approved by this Court in State of U.P. v. Nawab Hussain [1977 (2) SCC 806], SCC at p. 809, para 4.

21. Following all these principles a Constitution Bench of this Court in Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra [1990 (2) SCC 715] laid down the following principle: (SCC p. 741, para 35) "35. . an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject-matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure was applied to writ case. We, accordingly hold that the writ case is fit to be dismissed on the ground of res judicata."

23. Thus, the attempt to re-argue the case which has been finally decided by the court of last resort is a clear abuse of process of the court, regardless of the principles of res judicata, as has been held by this Court in K.K. Modi v. K.N. Modi [(1998) 3 SCC 573]. In SCC para 44 of the Report, this principle has been very lucidly discussed by this Court and the relevant portions whereof are extracted below: (SCC p. 592) "44. One of the examples cited as an abuse of the process of the court is relitigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as res judicata."

24. In coming to the aforementioned finding, this Court relied on The Supreme Court Practice, 1995 published by Sweet & Maxwell (p. 344). The relevant principles laid down in the aforesaid practice and which have been accepted by this Court are as follows: (K.K. Modi case [(1998) 3 SCC 573], SCC p. 592, para

43) "43. . 'This term connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. . The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material.' "

25. On the premises aforesaid, it is clear that the attempt by the appellant to reagitate the same issues which were considered by this Court and were rejected expressly in the previous judgment in AIMO case, is a clear instance of an abuse of process of this Court apart from the fact that such issues are barred by principles of res judicata or constructive res judicata and principles analogous thereto."

44.As the conduct of the petitioner does not reflect bona fides but clearly depicts his sole intention to somehow obtain an order from this Court on the very same prayer for alteration of date of birth, this Court exercising equitable jurisdiction, is of the view that the petitioner is not entitled to get any equity and therefore, the order passed in W.P.No.6678 of 2011 is required to be withdrawn and accordingly, considering the facts and circumstances of the case, following the order passed in W.P.No.13120 of 2011, dated 09.06.2011, the writ petition No.6678 of 2011 has to be dismissed and accordingly, dismissed.

45.For the conduct of the petitioner for the suppression, fraud played on this Court abuse of process of law, and forum shopping, this Court is of the view that appropriate costs has to be awarded to the petitioner. At the time of filing of the writ petition, the petitioner was stated to have worked as the Joint Director of Municipal Administration and also worked as Commissioner, Tiruchirappalli City Municipal Administration, Tiruchirapalli. An Officer of high ranking has adopted in such a dubious practice and deceived this Court and therefore, this Court deems it fit that cost should be quantified at Rs.50,000/- . In view of the above, there is no contempt.. Hence, the contempt petition and the writ petition(MD)No.6678 of 2011 are dismissed with a cost of Rs.50,000/- to be paid to the respondents. Consequently, connected miscellaneous petitions are dismissed.

sms To

1.Smt.Sheela Balakrishnan, Additional Chief Secretary/ The Principal Secretary to Government, Municipal Administration and Water Supply Department, Secretariat, Chennai-9

2.The Joint Secretary to Government Municipal Administration and Water Supply Department, Secretariat, Chennai-9

3.Mr.S.Chandramani, The Deputy Secretary to Government, Municipal Administration and Water Supply Department, Secretariat, Chennai-9

4.Mr.Chandra Kant B Kamble, The Commissioner of Municipal Administration, Chepauk, Chennai