LPA No.479 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. LPA No.479 of 2009 Date of decision 11 .8.2009 Ram Phal ... Appellant Versus State of Haryana and others ... Respondents. CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. Shalender Mohan ,Advocate for the appellant Ms. Ritu Bahri, DAG Pb. for respondent nos. 1 and 2 Mr. Kuldeep Singh, Advocate and Mr. Ajit Sihag, Advocate for respondent no.3. 1. Whether Reporters of local papers may be allowed to see the judgement ? 2. To be referred to the Reporter or not ? 3. Whether the judgement should be reported in the Digest ? M.M.KUMAR, J. The short issue raised in the instant appeal filed under Clause X of the Letters Patent is : “ Whether the Appellant-writ petitioner is guilty of suppressing material facts with a design to obtain relief by misrepresentation resulting in deprivation of his right to have the dispute settled on merits by invoking equitable jurisdiction of this Court under Article 226 of the Constitution.” This appeal is directed against order dated 29.4.2009 passed by a learned Single Judge in CWP No. 2771 of 2008 (to be referred as 2nd petition). The learned Single Judge has non-suited the appellant- writ petitioner by sustaining a preliminary objection that the facts concerning LPA No.479 of 2009 2 the earlier litigation initiated by him by filing CWP No.5922 of 2004 ( 1st petition) which was dismissed on 28.1.2005, were not disclosed and accordingly he has been held guilty of suppression of those facts. The view of the learned Single Judge is discernible from the following para :- When the counsel for the petitioner is confronted with these facts, he pleads ignorance and says that he made an attempt to contact his client, but has not been able to establish contact. Prayer for adjournment was made which is declined. The reply was filed on 03.03.2008. The petitioner has filed replication also. The petitioner has answered to this preliminary objection but has chosen to remain silent on filing of previous writ petition; the petitioner cannot plead lack of instruction and should have by now obtained instructions in this regard. The counsel cannot be heard to say that he has not been able to contact petitioner. It was incumbent on the counsel to obtain instructions in this regard. It is thus, clear that there is an attempt on the part of the petitioner to misrepresent and mislead this court for the purpose of obtaining an order in his favour despite his same prayer having been declined earlier. This would be sole ground to decline relief to the petitioner. The writ petition is accordingly dismissed. The petitioner will pay sum of Rs.20,000/- . The details background facts and 1 st writ petition: The appellant- writ petitioner had earlier filed 1st petition which LPA No.479 of 2009 3 was directed against order dated 29.1.2004 passed by the Sub Divisional Canal Officer. The Sub Divisional Canal Officer vide order dated 29.1.2004 had restored the water course 'AB'. Another order challenged in the writ petition was order dated 17.3.2004 passed by the Divisional Canal Officer upholding the order of the Sub Divisional Canal Officer. Significantly, the D.C.O. while upholding the order dated 29.1.2004 has further directed that water course was to remain operational for a period of six months only. Such an arrangement could be made under Section 24 of the Haryana Canal and Drainage Act, 1974 (for brevity 'the Act') Act. The provision contemplates restoration of a temporary water course for a period not exceeding one year. Both the aforesaid orders were challenged in the 1st petition. The writ petition was dismissed by this Court on 17.4.2005 upholding the order dated 28.01.2004 restoring the water course AB' ( Annexure P.1), for a period of six months. Accordingly, those orders have outlived their utility and may not be considered material thereafter. The 2 nd writ petition After the dismissal of the 1st writ petition filed by the appellant writ petitioner alongwith others , Birkha-respondent no. 3, filed an application before the Divisional Canal Officer Siwani (Water Division) Bhiwani for sanctioning of water course 'AB' from the land of the appellant- writ petitioner. The application filed by Birkha- respondent no.3 was rejected on 11.1.2005. Against the order dated 11.1.2005 passed by the Divisional Canal Officer, respondent no. 3 filed an appeal under Section 20(1) of the Act. The appeal was allowed by holding that the water course 'AB' was running on the spot for the last LPA No.479 of 2009 4 many years and it was best suited for better irrigation. The water course was accordingly sanctioned and expenditure involved was to be borne by respondent no.3. However, the Chief Canal Officer on further appeal filed by the appellant- writ petitioner concluded by keeping in view the Khakha Plan (Draft Scheme) that the water course 'AB' as well as 'CD' had resulted into division of the holding of the appellant-writ petitioner and Birkha- respondent no.3. Accordingly, the matter was remanded back to the Divisional Canal Officer, Siwani for examining the alignment along eastern and western end of the holding so that there is least objection. On remand, the Divisional Canal Officer accorded sanction to the water course 'CD' as the area of Birkha-respondent No.3 existed in the middle of the water course 'CD' and the other share holder was agreeable to give the water course without compensation. It was found to be best suitable and least objectionable. The aforesaid order was again challenged before the Superintending Canal Officer by respondent no.3. The order passed by the Divisional Canal Officer sanctioning water course 'CD' was upheld. On further appeal, the Chief Canal Officer vide order dated 21.5.2008 sanctioned the water course 'AB' on compensation basis by imposing a condition that Birkha Singh- respondent no. 3 would fix two 9' cement pipe for the appellant- writ petitioner to cross over to his fields. The order dated 21.05.2008, passed by the Chief Canal Officer was subject matter of challenge in the 2nd petition which was eventually dismissed with costs on 29.4.2009 and the instant appeal has been filed against that order. The learned Single Judge sustained the preliminary LPA No.479 of 2009 5 objection alleging concealment of material facts by the appellant-writ petitioner with regard to filing of 1st writ petition and the dismissal of the same. It is obvious that in the 1st writ petition dismissed on 28.1.2005, the orders dated 29.1.2004 and 17.3.2004 passed by the Sub Divisional Canal Officer and Divisional Canal Officer were under challenge. The order has allowed continuation of water course for six months only. For the sake of clarify it would be apposite to read the order dated 17.3.2004 which is as under: “ The case was put up before this court on the stipulated date, i.e., 17.3.2004. The appellant as well as respondent were heard at length. After hearing the parties and perusing the site plan, it was revealed that the appellant Zile Singh son of Kanshi Ram has demolished the water course AB which was running at the spot, due to which the irrigation of Birkha Ram son of Prithi Singh has been obstructed. Therefore, in the interest of irrigation, in exercise of my powers under Section 24(4) the water course AB is ordered to be restored at outlet RD 6350-L Saharwa minor. The said water course shall remain in force for six months from the date of order.” It is thus patent that water course 'AB' was allowed to run for six months from the date of order and the period of six months stand exhausted in September, 2004. Thereafter, Birkha-respondent No.3 filed fresh application for sanctioning of water course which culminated in the order dated LPA No.479 of 2009 6 25.01.2008. The earlier orders culminating in dismissal of 1st petition were considered so insignificant that no authority deciding application of Birkha-respondent No.3 later on has considered it necessary to make mention of it in any of the orders at any page. Obviously there could be no challenge to the order dated 25.1.2008 (P.6) in the 1st petition. It is in the aforesaid backdrop that the question posed at the outset needs to be answered. It is true that the factum of filing of 1st writ petition ought to have been disclosed in the 2nd petition but non disclosure of the same itself may not constitute a basis for rejection of the claim made by the appellant- writ petitioner on a fresh cause of action which has arisen on the filing of an application by Birkha- respondent no.3 for sanctioning of water course 'AB' on compensation basis which involves the land of the appellant- writ petitioner. The earlier orders of Divisional Canal Officer specifically restricted the restoration of water course for a period of six months only as contemplated by Section 24 of the Act. There is world of difference between the disclosure of material facts and the mere incidental facts. The material facts are those facts which are absolutely necessary for adjudication of the issue raised before the Court. On the issue as to whether the petitioner has suppressed material facts by not disclosing the filing of the 1st petition namely, it must be appreciated that there not only the cause of action was entirely different but the order passed by Canal Authorities under the Act had outlived its utility. The order restoring the water course was an interim measure for a specified period of six months. After the dismissal of writ petition an application was filed by Birkha respondent LPA No.479 of 2009 7 no.3 for sanctioning of water course on permanent long time basis. As has been noticed in the preceding paras, the application at one stage or the other was dismissed or allowed which eventually had resulted in the passing of final order on 29.4.2004. In the 2nd petition the appellant- writ petitioner had challenged order dated 29.4.2009 which is passed by the Chief Canal Officer allowing the application of Birkha respondent no.3 sanctioning water course 'AB' allegedly involving the land belonging to the appellant- writ petitioner. It is against the aforesaid order that the appellant- writ petitioner had approached this Court. In the backdrop of these facts, we are to examine the issue as to whether the Appellant- writ petition suppressed material facts. Accordingly, we find that entirely a new cause of action had arisen and there was not a suppression of such material facts which could constitute a basis for non suiting the appellant- writ petitioner by dismissing the 2nd petition. The learned Single Judge had also rejected the prayer of the petitioner-appellant for adjournment so as to enable him to seek instructions. The operative part of the order reads thus: - When the counsel for the petitioner is confronted with these facts, he pleads ignorance and says that he made an attempt to contact his client, but has not been able to establish contact. Prayer for adjournment was made which is declined. The reply was filed on 03.03.2008. The petitioner has filed replication also. The petitioner has answered to this preliminary objection but has chosen to remain silent on filing of previous writ petition; the petitioner cannot plead lack of LPA No.479 of 2009 8 instruction and should have by now obtained instructions in this regard. The counsel cannot be heard to say that he has not been able to contact petitioner. It was incumbent on the counsel to obtain instructions in this regard. It is thus, clear that there is an attempt on the part of the petitioner to misrepresent and mislead this court for the purpose of obtaining an order in his favour despite his same prayer having been declined earlier. This would be sole ground to decline relief to the petitioner. The writ petition is accordingly dismissed. The petitioner will pay sum of Rs.20,000/- . It is further significant to notice that the scope of 1st petition was entirely different where challenge was to order dated 17.03.2004 passed by the Divisional Canal Officer, restoring the water course 'AB' for a period of 6 months which is contemplated by Section 24 of the Act. The scope of the 2nd petition is entirely different as water course 'AB' has been sanctioned on permanent and long terms basis. According to Order 6 Rule 2 CPC, the pleadings are required to state only material facts. It must contain a statement of material facts in a concise form on which the party pleading those facts has placed reliance for his claim or defence. The material facts are required to be determined in the light of the substantive law applicable to the case pleaded before the Court. In the present case, the substantive law applicable would be Sections 17, 18, 19, 20 of the Act because it is in accordance with the aforesaid provision that right of a party claiming sanction of a water course is determined by the lowest authorities to the appellate or revisional authority. LPA No.479 of 2009 9 The learned Single Judge is not correct that substantial relief claimed by the writ petitioner-appellant is the same in both the petitions by assuming that “the dispute precisely appears to be same.” The dispute in both the petitions although belongs to the same water course 'AB' yet it is entirely different. The learned Single Judge has proceeded on this wrong premises and has therefore reached an incorrect conclusion holding that dispute is the same. It is in this background that the controversy was required to be examined on merit by the learned Single Judge. In support of the aforesaid view, they placed reliance on the judgment of the Hon'ble Supreme Court, rendered in Orpherts (P) Ltd., Calcutta V. Triloki Nath Aggarwal and Others (2004) 12 SCC 410. It is well settled that the object of pleadings is to prevent surprise at the hearing and each party must come to know the case of his opponent before hand. In that regard, reliance may be placed on the judgment of the Hon'ble Supreme Court in Ram Sarup Gupta V. Bishnu Narain Inter College & Other AIR 1987 SC 1242. It is equally well settled that material facts would mean all facts upon which the petitioners' 'cause of action' or the defence or the right of the respondent is dependent. In that regard reliance be placed on Braham Parkash V/s Manbir Singh, AIR 1963, SC 1607 and Hari Shankar Jain V. Sonia Gandhi AIR 2001 SC 3689. For the reasons afore-mentioned this appeal succeeds. The order dated 29.4.2009 passed by the learned Single Judge is set aside. It is held that there was no suppression of material facts with the design to obtain any relief. The matter is remanded back to the learned Single LPA No.479 of 2009 10 Judge for hearing the controversy on merits and decide the same in accordance with law. (M.M.Kumar) Judge (Jaswant Singh) 11.8.2009 Judge okg