Dismissed

M/S Skf Boilers and Driers Pvt. Ltd. v. the State of Karnataka

Karnataka HC30 Nov 2021WP/20023/2021

Case brief

AI extract

What is this about?

The Karnataka High Court dismissed a writ petition filed by a boiler manufacturer challenging a closure notice issued by a Panchayat regarding alleged pollution. The Court found the petitioner had suppressed material facts, including prior notices and replies to the Pollution Control Board, rendering its approach to justice "unclean." Consequently, the petition was dismissed as a safeguard against

What did the court decide?

Writ petition dismissed; costs of Rs. 1,00,000 imposed on the petitioner.

M/S Skf Boilers and Driers Pvt. Ltd… — Constitutional and Fundamental Rights | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 30^TH DAY OF NOVEMBER, 2021 BEFORE

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THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

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WRIT PETITION No.20023 OF 2021 (LB- RES)

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BETWEEN

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M/S SKF BOILERS AND DRIERS PVT. LTD., NO.129, BANNADKA , BELVAL, MANGALURU - 574 213 DAKSHINA KANNADA DISTRICT, REPRESENTED BY ITS H.R MANAGER, AND AUTHORISED SIGNATORY, SRI VIVEK VALLABH, AGED ABOUT 52 YEARS, S/O MANOHAR TULUJARAM

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... PETITIONER

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(BY SRI VIJAYA KRISHNA BHAT M., ADVOCATE (PHYSICAL HEARING))

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AND

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THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF PANCHAYATH RAJ AND RURAL DEVELOPMENT, VIDHANA SOUDHA, BENGALURU - 560 001.

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THE PADUMARNAD GRAM PANCHAYATH PADUMARNAD POST, MOODBIDRI TALUK, DAKSHINA KANNADA DISTRICT - 574 213 REPRESENTED BY ITS PRESIDENT.

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THE PANCHAYATH DEVELOPMENT OFFICER PADUMARNAD GRAM PANCHAYATH, PADUMARNAD POST, MOODBIDRI TALUK, DAKSHINA KANNADA DISTRICT - 574 213.

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THE KARNATAKA STATE POLLUTION CONTROL BOARD NO.49, PARISARA BHAVAN CHURCH STREET, BENGALURU - 560 001 BY ITS DIRECTOR.

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... RESPONDENTS

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(BY SMT.PRATHIMA HONNAPURA, AGA FOR R1 (PHYSICAL HEARING); SRI S.RAJASHEKAR, ADVOCATE FOR R2 & R3 (PHYSICAL HEARING)

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SRI GURURAJ JOSHI, ADVOCATE FOR R4 (PHYSICAL HEARING))

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER/NOTICE DTD.30.10.2021 BEARING NO.PVP/183/2021 PASSED BY THE R-3 RESPONDENT AND PRODUCED HEREWITH AS ANNEXURE-L.

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THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner-M/s SKF Boilers and Driers Private Limited

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('the Company' for short), is before this Court calling in question the notice dated 30-10-2021, issued by the 3^rd respondent / Padumarnad Gram Panchayat (‘the Panchayat’ for short), whereby, the Panchayat directs the petitioner - Company to be

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closed down within seven days from the date of receipt of the notice.

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Heard Sri Vijaya Krishna Bhat, learned counsel for the petitioner, Smt. Prathima Honnapura, learned Additional Government Advocate for respondent No.1, Sri S. Rajashekar, learned counsel for respondent Nos.2 and 3 and Sri Gururaj Joshi, learned counsel for respondent No.4 and perused the material on record.

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Briefs facts leading to the filing of the present petition, as borne out from the pleadings, are as follows:-

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The petitioner, a Company registered under the Companies Act, 1956 is engaged in the business of manufacture of Boilers and Driers. The petitioner -Company, in particular, is involved in the design and supply of paddy processing plant, driers and boilers and having established its Unit at Bannadka, Belvai of Dakshina Kannada District obtained a trade license to run the industry from the concerned Department and the Panchayat. The license was valid upto 31-03-2020. The petitioner applied

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for renewal of license which is pending consideration at the hands of the Panchayat.

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In the month of June, 2021, the local residents who stay around the Unit complained to the 2^nd respondent/Panchayat that the petitioner is undertaking certain activities, which are causing air and noise pollution as in the name of manufacture of Paddy Processing Unit, what is being run is a Paint Manufacturing Unit. A notice dated 11-06-2021, was issued by the 3^rd respondent to which the petitioner submitted its reply on 14-06-2021. The justification of the petitioner was that, there was no noise or air pollution caused by the industry and it has got 'No Objection' for any spot inspection to be conducted. It is the claim of the petitioner that no spot inspection was conducted. The Panchayat again issued a notice on 09-07-2021, on the same allegation and also indicated that if corrective measures are not taken to avoid pollution, a complaint would be lodged before the authority under the Factories Act, 1948. This was also replied by the petitioner on 23.07.2021. The 3^rd

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respondent/Panchayat then issued another notice on 30-10-2021, directing closure of the Unit within seven days of receipt of the said notice. It is at that juncture, the petitioner - Company has approached this Court in the subject writ petition.

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The writ petition was filed on 10-11-2021. This Court by its order dated 11-11-2021, granted an interim order of stay, which reads as follows:

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“Heard Sri Vijaya Krishna Bhat M, learned counsel appearing for the petitioner.

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Learned Additional Government Advocate waives notice for respondent No.1

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Issue emergent notice to respondents 2 and 3.

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Learned counsel appearing for the petitioner seeks leave of this Court to implead the Karnataka State Pollution Control Board as party respondent No.4 to these proceedings.

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Permission is granted to implead the Karnatakla State Pollution Control Board as party respondent No.4, to these proceedings.

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Sri Gururaj Joshi, learned counsel is directed to accept notice on behalf of respondent No.4.

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Learned counsel appearing for the petitioner is directed to amend the cause title of the writ petition. He is also directed to serve a set of writ petition papers upon the learned Additional Government Advocate appearing for respondent No.1 and Sri Gururaj Joshi, learned counsel appearing for respondent No.4 forthwith.

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The petitioner ruins a paddy processing unit. Respondent No.2 – Panchayat issues a notice to the petitioner on 11-06-2021, alleging that the unit of the petitioner is causing hazard to the environment with the emission of the paint spray as also noise pollution. Both of which is required to be assessed by the Karnataka State Pollution Control Board, which request the petitioner is already made before the Panchayat. Learned counsel appearing for the petitioner submits that notwithstanding the said request and without assessment done by the Karnataka State Pollution Control Board, the present notice directing closure of the unit is issued on 30-10-2021.

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Therefore, there shall be an interim order of stay of the notice dated 30-10-2021 and further proceedings taken thereto, till the next date of hearing.

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List the matter on 19-11-2021.”

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The allegation was that, the Unit was causing noise and air pollution and the Karnataka State Pollution Control Board (‘the Board’ for short) was not a party to the proceedings. The petitioner was directed to implead the Board as respondent No.4 to the proceedings while granting interim order dated

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11.11.2021, with a further direction to the Board to file its objections. The Panchayat files its objections and an application

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I.A.No.1/2021, seeking vacation of the interim order.

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Respondent No.4 - the Board has filed a status report of

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the functioning of the Unit of the petitioner. Along with the said status report, certain documents are appended which touch upon the conduct of the petitioner. Notice was issued by the Board on 21-10-2021, to the petitioner. The notice was replied to by the petitioner on 04-11-2021, in rebuttal of the allegations that are made in the notice dated 21-10-2021. After receipt of the reply from the hands of the petitioner, an inspection is also carried out of the Unit on 17-11-2021 and a show cause notice was issued pursuant to the said inspection on 17-11-2021, itself indicating hazardous effect of the petitioner running the Unit and how both air and noise pollution was at large in the Unit. The show cause notice was issued on 17-11-2021. Between the dates 04.11.2021 and 17-11-2021, the dates on which the petitioner submitted its reply to the Board and the date of

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inspection on 17-11-2021, the subject writ petition is filed on 10-11-2021.

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In the writ petition, the petitioner did not array the Board as a party respondent and only urged about the action of the Panchayat. The show cause notice issued by the Board on 21-10-2021, is suppressed. The reply given by the petitioner on 04-11-2021, is also suppressed. The averments clearly indicate that there was no involvement of the Board in the entire episode and it is only the Panchayat which would be taking objection to the activity of the petitioner. The aforesaid documents are suppressed. The writ petition is filed on 10-11-2021 and interim order is granted on 11-11-2021, solely on the ground that notwithstanding the request of the petitioner, no assessment is done by the Board, the notice directing closure of the Unit on account of pollution caused was not pursuant to an assessment made by the Board, was on the averment made in the petition. But, the facts are otherwise.

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The Panchayat has filed its objections wherein, certain

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documents are appended. On 09-06-2021, (Annexure-R5) most of the residents residing in the precincts of the Panchayat have complained against running of the Unit as what it is running is not a Paddy Processing Unit but a Paint Processing Unit. It is after this complaint, several notices were issued to the petitioner and the petitioner has replied to the same. The Panchayat on 02.09.2021, communicates to the Board to inspect the Unit in the presence of the petitioner and submit its report. This document is suppressed. The inspection that was conducted by the Panchayat prior to its communication to the Board is also suppressed. Pursuant to the notice issued by the Panchayat, a reply is submitted by the local counsel refuting all the allegations made. The reply is given on 02-11-2021. This reply to the Panchayat is suppressed. All these suppressions of the petitioner while filing the writ petition are brought out either by the Panchayat or the Board by filing the statement of objections and producing documents.

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The learned counsel for the petitioner is not in a

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position to dispute these documents that are appended to the statement of objections filed by the 3^rd respondent or the status report filed by the Board. They clearly demonstrate that the petitioner - Company was privy to all the aforesaid events of suppression. The notices are received and replies are submitted, which are all withheld from the Court. Therefore, it is a clear case of the petitioner suppressing vital documents while filing the writ petition. The interim order was obtained by the petitioner, particularly on the ground that the Board which had to do the assessment of pollution of the Unit was not consulted, but the facts are otherwise. Huge hue and cry is made by the respondents pursuant to which several notices are issued to which replies are submitted by the petitioner.

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As observed herein above, it is a case of filing the writ petition with false allegations or approaching the constitutional Court under Article 226 of the Constitution of India with unclean hands and such unscrupulous litigants who seek to

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approach the Court and obtain orders either interim or final on the basis of suppression of material facts, will have to be dealt with in a stern manner and not permit such litigants to pollute the stream of justice. The view of mine in this regard is fortified by the judgments of the Apex Court rendered from time to time directing the High Courts to deal with such litigants with an iron hand.

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The Apex Court in the case of PRESTIGE LIGHTS

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LIMITED VS. STATE OF BANK OF INDIA¹ , has held as follows:

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“ 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.

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1 (2007) 8 SCC 449

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… … … …

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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.”

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(emphasis supplied)

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In a subsequent judgment, the Apex Court in the case of

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K.D.SHARMA v. SAIL AND OTHERS² , has held as follows:

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“34. The jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. It is, therefore, of utmost necessity that the petitioner approaching the writ court must come with clean hands, put forward all the facts before the court without concealing or

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2 (2008) 12 SCC 481

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suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the court, his petition may be dismissed at the threshold without considering the merits of the claim.

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… … … …

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36. A prerogative remedy is not a matter of course. While exercising extraordinary power a writ court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the court. If the applicant makes a false statement or suppresses material fact or attempts to mislead the court, the court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating, “We will not listen to your application because of what you have done.” The rule has been evolved in the larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it.

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… … … …

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38. The above principles have been accepted in our legal system also. As per settled law, the party who invokes the extraordinary jurisdiction of this Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play “hide and seek” or to “pick and choose” the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of writ courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any

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qualification. This is because “the court knows law but not facts”.

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39 . If the primary object as highlighted in Kensington Income Tax Commrs. [(1917) 1 KB 486: 86 LJKB 257: 116 LT 136 (CA)] is kept in mind, an applicant who does not come with candid facts and “clean breast” cannot hold a writ of the court with “soiled hands”. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the court does not reject the petition on that ground, the court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of court for abusing the process of the court.”

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(emphasis supplied)

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Both these judgments are followed by the Apex Court in a later

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judgment in the case of DALIP SINGH v. STATE OF U.P. AND

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OTHERS³ , wherein the Apex Court directs as follows:

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“2. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth.

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3 (2010) 2 SCC 114

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They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.”

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(emphasis supplied)

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In the light of the afore-quoted judgments of the Apex Court,

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which direct the writ Courts that considering the cases where litigants approach the Court with unclean or soiled hands, without divulging all the necessary facts and suppress relevant materials, be held guilty of misleading the Court and dismiss such cases without adjudicating the matter.

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The case at hand is a classic case, where the petitioner - Company is guilty of suppression of material facts which led to passing of the interim order as aforesaid. It is also germane to notice that the trade license granted by the Panchayat came to an end on 31-03-2020. Having applied for renewal of license and not waiting for the renewal, the petitioner - Company has

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gone on with its manufacturing activity. The license the petitioner Company obtained from the hands of the Panchayat, as averred in the petition, is for manufacturing of a Paddy Processing Unit, and what is undertaken in the Unit is manufacture of spray paint, as is alleged even by the Board in its inspection report/show cause notice. Photographs are produced by the Board which demonstrate utter disregard, on the part of the petitioner to the environment. Therefore, it is a case where the Board will have to take the notice issued, to its logical conclusion, after following due process of law.

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In the teeth of afore-narrated facts, it is a fit case where the petitioner ought to be saddled with exemplary costs for having approached this Court with unclean hands and wanting to pollute the stream of justice.

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For the aforesaid reasons, I pass the following:

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O R D E R

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i. Writ petition is dismissed.

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ii. Costs of Rs.1,00,000 (Rupees one lakh only) is imposed upon the petitioner to be paid to the Karnataka Legal Services Authority, within four weeks from the date of receipt of a copy of this order and place acknowledgment thereto, in the registry of this Court.

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In view of the dismissal of the writ petition, I.A.No.1/2021

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does not survive for consideration and the same is disposed.

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Sd/JUDGE

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nvj

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CT:MJ

M/S Skf Boilers and Driers Pvt. Ltd. v. the State of Karnataka

Case brief

What is this about?

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M/S Skf Boilers and Driers Pvt. Ltd. v. the State of Karnataka

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