UDYAMI EVAM KHADI GRAMODYOG WELFARE SANSTHA ANDANR.versusSTATE OF U.P. & ORS.

     A
          UDYAMI EVAM KHADI GRAMODYOG \.VELFARE SANSTHA                       A
                            ANDANR.
                                 v.
                        STATE OF U.P. & ORS.

                                DECEMBER 5, 2007                              B

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


               Constitution ofIndia, 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 ofaction-One such petition filed under Public Interest Litigation
         challenging constitutionality ofprovision ofKhadi & 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 ofprocess 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
_,
         Village Industries Board Act, 1960. Other Writ Petitions were also F
         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
    934           SUPREME COURT REPORTS               [2007] 12 S.C.R.

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 ofIndia 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 ofBihar v. A1/s. Madhya Pradesh Khair
    Industries and Anr., [1980) 3 SCC 311, relied on.
H         2. In the Public Interest Litigation, Section 35A of the U.P.
           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)
                                                                             B
            Greater Bombay Coop. Bank Ltd. v. United Yarn Tex (P) Ltd and
       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.
·'"1                                                                           D
           Girdhar G. Upadhyay, Vinita G. Upadhyay, Syed Ali Ahmed, Syed
       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.
                                                                                G
            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. 90,0001- was sanctioned in 1996. It filed an application for H
     936            SUPREME COURT REPORTS                    [2007) 12 S.C.R.


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. 13,20,0001- was
  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
D          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,
H
....I,


             UDYAMIEVAMKHADIGRAMODYOGWELFARE                                 937
                   SANS IHA v. STATE [SINHA, J.]
         before us.                                                                A
               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.                                                                 H
    938             SUPREME COURT REPORTS                    [2007] 12 S.C.R.


A         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
B
           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
c          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:
F
           "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
G          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
H
    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.                     C
     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.