1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:22/08/2011 CORAM THE HONOURABLE Mr.JUSTICE S.MANIKUMAR Writ Petition (MD)No.6844 of 2011 and MP(MD)Nos.1 and 2 of 2011 M/s.R.V.Enterprises Rep. By its Partner V.Venkateshwaran, 33 1st Pulikuthi Street,Gugai, Salem-636 006. :Petitioner -Vs- 1.The District Collector, Madurai District, Madurai. 2.The Joint Chief Controller of Explosives, Rani Rukmani Lakshmipathy Salai, Near Thayagam Office, Egmore, Chennai-600 008. 3.The Deputy Director,Department of Geology & Mining,Madurai. 4.M/s.Hindustan Petroleum Corporation Ltd. Rep by its General Manager (Retail Sales)Byepass road,Madurai. 5.Manonmani W/o.V.Senthilkumar 5/79 West Street, Keelavalavu, Melur Taluk, Madurai. :Respondents Prayer:Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Mandamus forbearing the respondents 4 and 5 from operating the petroleum Retail Outlet bunk in Survey No.257/1 Keelavalavu Village, Melur Taluk, Madurai District. For petitioner :Mr.Ramachandran For K.P.Ayyappamani RR1 to RR3 :Mr.B.Pugalendhi,Spl. Government Pleader RR4 :Mr.M.Sridhar RR5 :Mr.T.Lajapathi Roy ORDER R.V.Enterprises, represented by its partner, has filed the present writ petition for a mandamus forbearing M/s.Hindustan Petroleum Corporation Limited, represented by General Manager (Retail Sales ) and Mrs.Manonmani of Keelavalavu Melur Taluk, Madurai, respondents 4 and 5 from operating the Petroleum Retail outlet bunk in Survey No.257/1 Keelavalavu Village, Melur Taluk, Madurai District. 2.Record of proceeding shows that, when the matter came up for hearing on 28.06.2011, submissions have been advanced by the learned counsel for the petitioner that when quarry operation is performed using explosives, it would be dangerous to have an outlet near to the quarrying place and the above said fact has been overlooked by the authorities, while granting no objection certificate to the fifth respondent. Record of proceeding also shows submissions have been advanced by the learned counsel for the petitioner that the fifth respondent had not commissioned the operation of petrol bunk on the date of filing of the writ petition, i.e. 27.06.2011. In such view of the matter, this Court while observing that the matter requires consideration in detail, has issued notice to the respondents returnable in two weeks and on the abovesaid submissions granted an order of interim injunction till then. Seeking to vacate the interim injunction granted by this Court, the fifth respondent has filed M.P.No.2 of 2011. 3.Counter affidavit has also been filed by the District Collector, Madurai, the first respondent herein, stating that the procedure in issuing the no objection certificate has been duly followed in accordance with the https://hcservices.ecourts.gov.in/hcservices/ 2 rules. The Senior Regional Manager, Hindustan Petroleum Corporation Limited, Madurai, representing the fourth respondent, has also filed a detailed counter affidavit. 4.When the writ petition was listed on 12.08.2011, a request was made by the learned counsel for the fifth respondent to hear the interim application urgently. Therefore, the Registry was directed to post it in the motion list. On 16.08.2011, one Mr.Rajendran, Advocate not attached to the office of the learned counsel for the petitioner, sought for an adjournment on the ground that both Mr.K.R.Ayyappamani and Mr.K.Gurunathan, learned counsel on record, were not well and prayed for time. However, contending inter-alia that the interim order in M.P.No.1 of 2011, dated 28.06.2011, has been obtained on suppression and distorted version of facts, the learned counsel for the fifth respondent insisted that the interim application to be heard. Hence, this Court directed the writ petition to be listed on 22.08.2011 in the motion list. 5.Today, one Mr.Ramachandran, attached to the office of Mr.D.Selvanayagam, Advocate stated to be from Chennai, has sought for an adjournment on the ground that both the learned counsel for the petitioner, on record, are not in station. Thus, it could be seen that though, the interim order has been obtained as early as on 28.06.2011, for one reason or other, the petition is not represented by the learned counsel on record. However, adjournments have been sought for on the grounds stated supra. Considering the urgency shown by the fifth respondent, who is the affected person, on account of the interim injunction, this Court is inclined to pass orders on the merits of the case, after hearing the learned counsel for the fourth and fifth respondents and considering the material on record. 6.Inviting the attention of this Court to Paragraph No.4 of the supporting affidavit, filed along with the writ petition, Mr.T.Lajapathi Roy, learned counsel for the fifth respondent, submitted that the quarry operation in Survey No.257/2, in Keelavalavu Village, Melur Taluk, Madurai District, has been stopped from the year 2009 onwards. He also drew the attention to paragraph No.4 of the counter affidavit filed by the District Collector, Madurai, the first respondent herein, and further submitted that the District Collector has issued a show cause notice to the writ petitioner for non operation of granite quarry vide his office letter in Rc.No.349/10/Mines dated 01.07.2010 and based on the reports, records and the explanation offered by the writ petitioner, three months time has been granted to restart the quarry operation vide letter dated 18.08.2010 and that the petitioner was also directed to submit a representation in proper form. He further submitted that the writ petitioner in the letter dated 16.05.2011 has also expressed their inability to restart the quarry operation and requested the District Collector, Madurai, to grant one year time to restart the quarry operation. In the light of the above explanation of the writ petitioner and the counter affidavit filed by the District Collector, Madurai, Mr.T.Lajapathi Roy, learned counsel for the fifth respondent, submitted that when the petitioner himself has given a letter dated 16.05.2011 seeking one year time to restart the quarry operation, only after 15.05.2012, the petitioner could restart the quarry operation. In such circumstances, the allegations that grant of letter of intent, by the Hindustan Petroleum Corporation Limited, to commission the petrol bunk near the quarry site would cause danger, contrary to facts that there was no quarry operation at all, on the date of filing of the writ petition. https://hcservices.ecourts.gov.in/hcservices/ 3 7.Inviting to paragraph No.8 of the supporting affidavit, in the writ petition and in M.P.No.1 of 2011, learned counsel for the fifth respondent further submitted that the averments of the writ petitioner that the fifth respondent had not commissioned the operation of petrol bunk and that in such circumstances, restraining him from operating the petrol bunk by granting an interim injunction would not prejudice the first respondent and on the other hand, the interests of the people would be protected are nothing but suppression of facts, which made the Court to believe that as if, on the date of hearing of the writ petition, the operation of the petrol bunk was not commenced. 8.To substantiate that the petrol bunk had already commenced in March 2011 itself, he drew the attention of this Court to paragraph No.4 of the counter affidavit filed by the Senior Manager, Hindustan Petroleum Corporation Limited, Madurai, wherein, it is stated that after observing all formalities and procedures, the 5th respondent has issued the letter of intent on 01.11.2010. On issuance of the LOI, the construction work and the embedding of underground tanks had already been completed and the fifth respondent had taken a load of petrol and diesel on 29.03.2011. The fourth respondent has further submitted that the operation of the retail outlet had been commenced from 29.03.2011 onwards. It is further stated that the relevant procedures for installation of a retail outlet have been duly processed and that the authorities after due physical verification and inspection have issued the “No objection” certificate for installation of a retail outlet at Keelavalavu. The Tahsildar of Melur, Fire Services Department, Police Departments after physical verification have processed the application of the dealer and have accorded their respective consent for installation of the outlet. 9.Thus, it could be seen that the writ petitioner to the effect that he has been operating quarry at Survey No.257/2, in Keelavalavu Village, Melur Taluk, Madurai District and the location of the petrol bunk near the quarry site, would endanger human life and the further submission at Paragraph No.8 of the supporting affidavit in the writ petition that the fifth respondent had not commissioned the operation of petrol bunk and therefore, granting an interim injunction would not prejudice him, all distorted version of facts, which has led this Court to pass an order of interim injunction. 10.Material on record shows that the Hindustan Petroleum Corporation Ltd., vide letter, dated 01.11.2010, has granted a letter of intent, for the purpose of retail outlet dealership at Keelavalavu, Madurai, Tamil Nadu State, Category-OPEN (W). Subsequently, no objection certificate, dated 23.02.2011, has been granted by the District Revenue Officer, vide proceeding in D.Dis.No.C4/83005/2010, dated 23.02.2011, for construction of two storage tanks of petroleum products (Class A-8,9 kl & Class B-22 kl) in S.No.257/1(part) Keelavalavu Village, Melur Taluk, Madurai district. After fulfilling the necessary formalities, letter of intent, dated 01.11.2010, has been granted by the Hindustan Petroleum Corporation Ltd., the fourth respondent herein, and that the fifth respondent has also commenced the petrol bunk from 29.03.2011. It is also the case of the Senior Manager Hindustan Petroleum Corporation Ltd., the fourth respondent herein, that the fifth respondent had taken a load of petrol, diesel on 29.03.2011 and commenced the operation of retail outlet. In view of the above submissions and the categorical assertion of the Hindustan Petroleum Corporation Ltd., https://hcservices.ecourts.gov.in/hcservices/ 4 the fourth respondent herein, the averments in the supporting affidavit that the petrol bunk had not been commenced its operations do not reflect the correct and true factual position. Remedy under Article 226 of the Constitution of India can be invoked only if a person approaches this Court with clean hands and if there is suppression of fact, he is not entitled to the equitable remedy. 11.As regards suppression useful reference can be made to the decision of the Supreme Court 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 https://hcservices.ecourts.gov.in/hcservices/ 5 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 https://hcservices.ecourts.gov.in/hcservices/ 6 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.” 12.In such view of the matter, this Court is not inclined to extend the interim injunction granted on 28.06.2011 and accordingly the same is vacated. As the letter of intent, dated 01.11.2010, had already been issued and that the fifth respondent has also commenced the operation of retail outlet, mandamus sought for, cannot be granted, as it would amount to entertaining a collateral challenge, which is not permissible. 13.In such view of the matter, the relief for mandamus is misconceived. In the result, the writ petition is dismissed. No costs. Consequently connected miscellaneous petitions are closed. Sd/- Assistant Registrar (T&P) / TRUE COPY / Sub Assistant Registrar To: 1.The District Collector, Madurai District, Madurai. 2.The Joint Chief Controller of Explosives,Rani Rukmani Lakshmipathy Salai, Near Thayagam Office, Egmore, Chennai-600 008. 3.The Deputy Director, Department of Geology & Mining, Madurai. 4.The General Manager (Retail Sales)M/s.Hindustan Petroleum Corporation Ltd. Byepass road, Madurai. +1CC to Mr.T.Lajapathiroy, Advocate. SR.No.28650. RR Writ Petition No.6844 of 2011 and MP.Nos.1 and 2/11 RP/08.09.2011/6P/6C. 22.08.2011. https://hcservices.ecourts.gov.in/hcservices/