UDY AMI EV AM KHADI GRAMODYOG \.VELF ARE SANSTHA A

ANDANR. v.

STATE OF U.P. & ORS.

DECEMBER 5, 2007 B

[S.B. SINHA AND J.M. PANCHAL, JJ.]

Constitution of India, 1950--Article 226-Writ petition-Filing of-Suppressing material fact-Maintainability of-Writ petition c suppressing the fact that previously four writ petitions filed on same cause of action-One such petition filed under Public Interest Litigation challenging constitutionality of provision of Khadi & Village Industries Board Act-Held: Writ remedy being equitable in nature, to be taken 1 recourse to with clean hands-Taking recourse to such remedy over D and over again amounts to abuse of process of law-On facts, writ petitioner had filed all the writ petitions on same cause of action-

PIL was also pertaining to same issue-Hence not maintainable-

Uttar Pradesh Khadi and Village Industries Board Act, 1960-s. 35A.

Appellant-Samiti defaulted in payment of loans. Recovery E

proceedings were initiated. Several Writ Petitions were filed by the appellant, questioning recovery proceedings. It also filed a Public Interest Litigation wherein appellant No.2 was made a party, questioning the constitutionality of Section 35A ofU.P. Khadi and F _, Village Industries Board Act, 1960. Other Writ Petitions were also filed by the appellant. Fresh recovery proceedings were initiated.

Fresh Writ Petition was filed there against. The petition was dismissed by High Court holding that the Writ Petition was not maintainable as the same was filed suppressing the material fact viz. filing of previous Writ Petitions on the same cause of action. Hence G the present appeal.

Dismissing the appeal, the Court

933 H

A HELD: 1.1. Although the prayers made in the four writ applications are apparently different, having gone through the writ applications, it became evident that the core issue in each of the matter centers round recovery of the amount advanced to the appellants by the Bank. Evidently, orders passed in different stages B of the proceedings as also new proceedings based upon fresh calculation on interest on the principal sum had been in question from time to time. Even a Public Interest Litigation was filed wherein appellant No. 2 was a party. May be that validity of Section 35A of the U.P. Khadi and Village Industries Board Act, 1960 was one of c the issues raised therein, but the recovery proceeding even was the subject matter thereof. [Para 9] [937-C, D, E]

Arunima Baruah v. Union of India and Ors., [2007) 6 SCC 120, relied on.

D 1.2. Respondent Nos. 2 and 3 in their counter-affidavit have drawn attention of the Court to an order passed by the high Court in a Writ Petition wherein it was observed that this was the sixth Writ Petition against recovery. The said Writ Petition have also been dismissed. In the said counter-affidavit, it has further been disclosed E that after being unsuccessful in their attempt to stall the recovery proceedings against the Samiti, a fictitious welfare Sanstha, namely, Udhyami Evam Khadi Gramodyog Welfare Sanstha was started by Appellant No. 2. [Paras 12, 13 and 14] [938-C, D, E; 939-C]

1.3. The attempt on the part of the appellants herein must be F termed as 'abuse of the process oflaw'. 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. Such a G repeated filing of Writ Petitions amounts to criminal contempt.

[Para 15) [939-C, D, E)

Advocate General. State of Bihar v. A1/s. Madhya Pradesh Khair Industries and A nr., [1980) 3 SCC 311, relied on.

2. In the Public Interest Litigation, Section 35A of the U.P.

'"1

UDYAMIEVAMKHADIGRAMODYOGWELFARE 935 SANSTHA v. STATE[SINHA, J.]

Khadi and Village Industries Board Act, 1960 was challenged on the A premise that even the cooperative societies were required to take recourse to the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Such a contention has expressly been rejected by this Court. [Para 10) [937-E, F)

Greater Bombay Coop. Bank Ltd. v. United Yarn Tex (P) Ltd and B

Ors., [2007) 6 SCC 236, relied on.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5637 of 2007.

From the Judgment and final Order dated 19.7.2006 of the High c

Court of Judicature at Allahabad, Lucknow Bench, Lucknow in Writ Petition No. 4274(M/B) of2006.

Uma Datta for the Appellants.

Girdhar G. Upadhyay, Vinita G. Upadhyay, Syed Ali Ahmed, Syed D

Tanweer Ahmed, Vijay Kumar Pandita, Asha Upadhyay, RD. Upadhyay, G.K. Srivastava, Sarwa Mittar (for Mitter & Mitter Co.), S. Wasim A.

Qadri, Rajiv Dubey, Jubair Ahmad Khan and Kamlendra Mishra forthe Respondents.

E The Judgment of the Court was delivered by

S.B. SINHA, J. 1. Leave granted.

2. Extent of Superior Courts' jurisdiction to dismiss a writ petition for alleged suppression of material fact is involved in this appeal which F arises out of a judgment and order dated 19.07.2006 passed by the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow in WP No. 4274 (M/B) of2006.

3. Basic fact of the matter is not in dispute.

Appellant is a cooperative society (Samiti). It applied for loan for establishment of an industry for manufacturing 'Aluminum Pottery' from the respondents. A loan of Rs. 5,24,000/- was sanctioned in the year

1991. A Sum of Rs. 3,09,000/- was released by the respondents. Again,

a sum of Rs. 90,0001was sanctioned in 1996. It filed an application for H

A grant of loan of Rs. 22,00,000/- under the 'Consortium Bank Credit

Scheme' for establishing an unit for manufacturing P.V.C. Shoe Sole. A sum of Rs. 16,20,000/- was sanctioned and Rs. 13,20,0001was released. The Samiti allegedly defaulted in making payments. Recovery proceedings were initiated against the Samiti. Several writ petitions were B filed by it questioning the legality thereof.

4. A purported public interest litigation was also filed wherein Suresh Chandra Sharma (Appellant No. 2 herein) was also a party; praying for the following reliefs: c "(i) to hold the provisions of Section 35A of the U.P. Khadi & Village Industries Board Act, 1960 ... to be unconstitutional and declaring the same ultra vires the provisions of Articles 14, 21 and 300A of the Constitution oflndia;

(ii) issue a writ, order or direction in the nature of Certiorari to quash the recovery certificates dated 14.9.05, 19.7.05 and

10.9.2002 contained inAnnexures Nos. 4,5 and 6 issued by U.P.

Khadi and Gramodyog Board, Lucknow.

(iii) issue a Writ, order or direction in the nature of Mandamus E commanding the opposite party Nos. 2,3 and 4 to get recovery of amount due against the members of Petitioners society through due process of law other than recovery the same as arrears of land revenue ... "

5. It appears some other writ petitions were also filed by the F appellant, as would appear from the counter affidavit filed on behalf of the respondents.

However, fresh recovery proceeding had been initiated which were not the subject matter of challenge in the writ petitions filed by the G Appellant before the High Court.

6. A fresh writ petition was filed. The same has been dismissed by reason of the impugned judgment holding that the appellants have suppressed the material fact, viz., filing of four writ petitions on the same cause of action and, thus, it was not maintainable. Appellants are, thus,

.. ..I,

UDYAMIEVAMKHADIGRAMODYOGWELFARE

SANS IHA v. ST ATE [SINHA, J.]

before us.

7. Mr. Uma Datta, learned counsel appearing on behalf of the appellants, would submit that the statement made by the writ petitioners that no other writ petition was filed on the same cause of action was correct as from a perusal of the four writ applications, reference whereof B was made by the High Court in its impugned judgment, it would appear that they were filed on different causes of action.

8. Mr. S. Wasim A. Qadri and Mr. Girdhar G. Upadhyay, learned counsel appearing on behalf of the respondents, on the other hand, submitted that in different writ petitions, the petitioners questioned the C recovery proceedings, citations and sale of the property, as orders were passed at different stages of the same recovery proceedings.

9. Although the prayers made in the four writ applications are apparently different, having gone through the writ applications, it became '"' evident that the core issue in each of the matter centers round recovery D of the amount advanced to the appellants by the bank. Evidently, orders passed in different stages of the proceedings as also new proceedings based upon fresh calculation on interest on the principal sum had been in question from time to time. As indicated hereinbefore, even a public interest litigation was filed wherein also Appellant No. 2 was a party. Maybe that E validity of Section 35A of the U.P. Khadi and Village Industries Board Act, 1960 was one of the issues raised therein but even the recovery proceeding was the subject matter thereof.

10. In the public interest litigation, Section 35A of the U.P. Khadi F and Village Industries Board Act, 1960 was challenged on the premise that even the cooperative societies were required to take recourse to the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Such a contention has expressly been rejected by this Court in Greater Bombay Coop. Bank Ltd. v. United Yarn Tex G (P) Ltd. and Ors., [2007] 6 SCC 236.

11. As the law operating in the field has recently been laid down by this Court in Arunima Baruah v. Union of India and Ors., [2007] 6 sec 120 in the following terms, it is not necessary to reiterate the same overagam.

However, therein in the peculiar fact of the matter, it was observed:

"20. In this case, however, suppression of filing of the suit is no longer a material fact. The learned Single Judge and the Division Bench of the High Court may be correct that, in a case of this nature, the court's jurisdiction may not be invoked but that would not mean that another writ petition would not lie. When another writ petition is filed disclosing all the facts, the appellant would be approaching the writ court with a pair of clean hands, the court at that point of time will be entitled to determine the case on merits having regard to the human right of the appellant to access to justice and keeping in view the fact that judicial review is a basic feature of the Constitution oflndia."

12. Respondent Nos. 2 and 3 in their counter-affidavit have drawn our attention to an order dated 12.06.2003 passed by the high Court in D writ petition No. 25359 of2003 wherein it was observed: r

"this is the sixth writ petition against recovery. In the fifth Writ Petition No. 22933 of 2003, auctions ofresidential houses No. 22 has been stayed by this Court. Now the other properties are sought to be auctioned/sold. I do not find any prima facie case E made out to interfere in the matter of recovery at this stage"

13. The said writ petition have also been dismissed by an order dated 06.12.2005 by a Division Bench of the Allahabad High Court.

14. In their counter-affidavit, the respondents stated:

"21. That in reply to the events mentioned against 03.06.2003 and 09.06.2003 it is submitted that the sale proclamation was necessary legal proceeding since even after citation had been issued, the payment of the amount under recovery had not been made. In this view of the matter, the writ petition which was of the same nature as the earlier writ petitions was not only misconceived but was also abuse of process of court by the Samiti. It is pertinent to state here that the recovery certificates which were issued on 14.09.2005 and

19.07.2005 since by that time. the further interest on the loan amount had accrued which required issue of fresh recovery

UDY AMI EV AMKHADI GRAMODYOG WELFARE 939 SANSTHA v. STATE[SINHA, J.]

certificates. However, the recovery certificates dated 10.09.2002 A had been issued earlier before filing of the writ petition. In view of the facts, it is submitted that there was no occasion for the petitioner no. 2 joining hand with so-called Sanstha, the petitioner no. 1 challenged these recovery certificates. The challenge, which was made by the petitioners before the Lucknow Bench, Allahabad, B High Court was clearly an abuse of the process of Court."

In the said counter-affidavit, it has further been disclosed that after being unsuccessful in their attempt to stall the recovery proceedings against the Samiti, a fictitious welfare Sanstha, namely, Udhyami Evam Khadi Gramodyog Welfare Sanstha was started by Appellant No. 2.

We, therefore, are of the opinion that the attempt on the part of the appellants herein must be termed as 'abuse of the process of law'.

15. 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 D 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. Mis. Madhya Pradesh E Khair Industries and Anr., [1980] 3 SCC 311, this Court was of the opinion that such a repeated filing of writ petitions amounts to criminal contempt.

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

K.K.T.

Appeal dismissed.