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Writ Petition No. 242 of 1957, decided on 6th July 1957.
, Art. 170‑Locus standi to apply for writ‑Allegation of direct injury to petitioner necessary.
Petitioners who did not pay the Toll Tax levied by a Local Board on trucks plying on a particular road cannot come to Court for relief on the ground that the contractors whose trucks were employed by the petitioners pay the tax and were expected in the ordinary course to include that tax in their charges and thus to indirectly recover them from the petitioners.
The petitioners had no locus standi to file the petition for a writ of prohibition, or other writ to restrain the Board from levying the tax.
Charanjit Lal Chowdhury v. The Union of India and others A I R 1951 S. C. p. 41 paras. 7 and 43 ; Indian Sugar Mills Association through its President Shri Hari Raj Swaru v. Secretary to Government, Uttar Pradesh Labour Department A I R 1951 All. page 1 paras. 8 and 9 ; In re v. Chakkarai Chettiar A I R 1953 Mad. page 96 para. 11 ; Surrendara Transport and Engineering Co. , Ltd., Kalka and others v. State of Punjab A I R 1954 Pb. 264 para 5 ; Sm. Raj Rani Sekhri v. U. P. Government and another A I R 1954 All. p. 492 paras. 8 and 9 and Madhab Chandra Das and others v. Regional Transport Authority A I R 1954 Assam 212 para 2 ref.
, Art. 170‑Suppression of material facts, and misleading averments in petition or affidavit‑Disentitle petitioner to relief by writ.
The necessity of making complete and correct statements in a writ petition and its supporting affidavits cannot be over emphasized. If a petitioner suppresses material facts within his knowledge he disentitles himself to ante relief.
If an affidavit, in support of an application, which was made ex‑parte, was misleading, and a rule nisi was obtained by concealment of facts which ought not to have been concealed and by statements which were not in accordance with the facts, the Court will discharge the rule without going into the merits of the application.
In the exercise of an extraordinary jurisdiction it is a serious matter for parties to take advantage of the Court without coming with clean hands and by creating a misleading impression to try to misuse its process.
Where the petitioners had suppressed the fact that the Toll Tax was levied not on their trucks but on those belonging to their contractors and sought to get it removed by a writ petition Held, that the petitioners had disentitled themselves to relief by suppressing material facts and making misleading statements.
Wanchoo and others v. Lakshmi Lal and others A I R 1952 Rajisthan 22; The King v. Kensington Income Tax Commissioner 1917 Law Reports 1, K. B. p. 486 ; Asiatic Engineering Co. v. Achharu Ram and others, A I R 1951 All. 746 para. 51 and Sm. Rai Rani Sakhri v. U. P. Government and another A I R 1954 All. p. 492 ref.
Dingomal for Petitioners.
Abbasi for Respondent No.l.
Akhtar Hassan for Respondent No. 2.
--- This writ petition has been filed by Dalmia Cement Limited through its Manager, J. C. Dawar to challenge the legality of a toll tax of Rs. 2 per trip payable on each truck plying on Manghopir Road. It is stated in the petition that the Local Board for the District of Karachi is collecting the tax and those who are plying their trucks have to pay it to one Agha Akhtar Muhammad who claims to be a contractor of District Local Board, Karachi. This tax is stated to be illegal because the provisions and Regulations contained in the Sind Local Boards Act, 1923 for levy of toll tax have not been observed at all. It appears from the contents of the petition that the petitioners addressed letters to the President of the District Local Board, Karachi, the Collector of Karachi and the Chief Commissioner of Karachi and also informed the respondents that they would be compelled to file a Writ Petition but no action was taken on the petitioners' representations. The petitioners have prayed for a writ of prohibition and for any other suitable order or direction pro hibiting the District Local Board, Karachi and the contractor of the District Local Board, Karachi from levying or collecting the toll tax on motor trucks plying on Manghopir Road and for a declaration that the levy and collection of the toll tax is illegal, ultra‑vires and without jurisdiction.
The petitioners have attached copies of letters addressed by them to the President, District Local Board, Karachi, the Collector of Karachi and the Chief Commissioner of Karachi. They are referred to in paragraphs 5, 6 and 7 of the petition and marked A,' B' and C.' In the letter addressed to the President, District Local Board, Karachi it was stated by the Manager
"For the purposes of our Factory we are sending out every day about 25 to 30 trucks and each truck makes 4 to 5 return visits for bringing limestone from our quarries in Manghopir Hills. We have sent a letter dated 18th May 1957 to Mr. Agha Akhtar Muhammad, copy of which is enclosed for ready reference, to allow our trucks to pass but up to now the people stationed by him do not allow the truck to proceed."
Irk‑the letter to the Chief Commissioner of Karachi it is stated as follows
"For the purpose of obtaining limestone from our quarries in Manghopir Hills for manufacture of cement in our factory we employ about 25 to 30 trubks which make 4 to 5 round visits each day on Manghopir Road and since 16th May 1957 our trucks have not been allowed to go for bringing limestone unless Toll Tax of Rs. 2 per truck per visit is paid, which we have declined to pay as we regard this imposition to be illegal."
The substance of this letter is reproduced in para. 7 of the petition in the following words
"The petitioners also brought the matter to the notice of the Chief Commissioner, Karachi, by their letter dated 22nd May 1957 as per copy annexed hereto and marked C' and submitted that the petitioners' trucks in large numbers were making several visits per day for bringing limestone from Manghopir Hills for the purpose of manufacture of cement for their factory and requested that they should be saved from any illegal tax but no reply has so far been given."
The petitioners finally addressed a letter to all the three respondents. It is dated 25th May 1957 and a copy of it is attached to the petition and referred to in para. 8 of it. In this letter the counsel of the petitioners stated on behalf of his client as follows
"My clients, therefore, brought the matter again to the notice of the Chief Commissioner, Karachi, but up till now no action has been taken and my clients' trucks have been held up and serious loss is being done to them."
Along with the main petition the petitioners also submitted an application for temporary injunction and stated in para. 3 of it as follows
"That the petitioners send out every day 25 to 30 trucks which make 4 to 5 rounds per day and the exaction of Toll Tax of such amounts per day without any lawful authority is illegal and this is a fit case where this Hon'ble Court should issue an injunction restraining such illegal levy being made."
The main petition as well as the injunction application are supported by affidavits of the Manager. In para. 3 of the affidavit which supports the injunction application the Manager has deposed as follows
"That from 16th May 1957 our trucks have not been allowed to proceed on the Manghopir Road by respondent No. 3 who has stationed a number of people acting as contractor or lessee of respondent No. 1 unless Toll Tax is paid."
The main petition and the application came before me on 29th May 1957 and I ordered notice of the injunction application only to be issued to the respondents. In response to the notice Muzafar Hassan, Chief Officer of the Karachi District Local Board submitted a counter affidavit in para. 5 of which he has stated as follows
"The petitioners, as far as my information goes and as far as the record maintained by the respondent No. 3 at Orangi Naka shows that, the petitioners do not own a single truck which crosses the toll bar as alleged by them. These trucks which carry limestone from Manghopir Hills and pass through the toll bar belong to different owners who are working on contract basis for one Mr. Anand who himself is d contractor to the petitioners for the excavation of limestone from the Manghopir Hills and its delivery to the petitioners' factory. I am advised to say that the petitioners have no cause of action as no tax is being levied against them and their statements contained in the petition and application for injunction are wrong and without any foundation. I am further advised to say that the petitioners by not disclosing the real names of the truck owners and the contractor through whom they get the limestone, have suppressed the facts and made wrong statements. It is denied that the petitioners send 25 to 30 trucks per day and each truck doing 4 to 5 trips. There are about 5 trucks which carry limestone and pass through the toll bar for 4 to 5 trips each."
In paras 9 and 10 of the counter affidavit he has stated as follows
"Para. 9 : I am advised to say that on account of the petitioners' suppressing the facts about the ownership of the trucks, and the number of trips done by each, they have disen titled themselves from the interim relief prayed by them. In fact the tax is being paid without any objection and by issuing injunction the entire administration of the Local Board will be up‑set and great prejudice will be caused to them.
Para. 10 : I am further advised to say that the petition is not maintainable as the petitioners are not the proper and per sonally aggrieved party and as such they are not entitled to any relief."
In reply to this counter affidavit the Manager, J. C. Dawar has submitted an affidavit as a rejoinder. In para. 12 of the affidavit he has stated
"That no facts were suppressed nor is there any reason to suppress the facts, neither in the application under Order XXXIX, rules 1 and 2 nor in any affidavit it has been stated that we owned 25 to 30 trucks and these trucks we send out in respect of which the Toll Tax is being demanded."
In para. 10 of the affidavit he has stated that .the true position is that
"there are 4 to 5 trucks which whenever they remain idle, go to Manghopir and bring limestone in order to enable them to earn something even though it entails paying this illegal Toll Tax from their own pocket. Such illegal payment is being made by the truck owners under compulsion. We, however, do not pay Toll Tax to those truck owners."
In para. 8 of the affidavit he has stated
"I say that any levy of Toll Tax will have to be paid by the petitioners to the contractor, namely, the Karachi Stone Supply Company as it is unthinkable that they would pay the Toll Tax themselves."
Mr. Abbasi Advocate has appeared on behalf of the respon dent No. 1, namely, the Karachi District Local Board, and has raised three preliminary objections which are ; (1) that the petitioners have no locus standi to challenge the Toll Tax and seek relief from Court against Toll Tax by a writ petition (2) ; that the petitioners have disentitled themselves to any relief because they have suppressed facts and made mis‑representations with the intention of misleading the Court's mind ; (3) and that the petition for the writ of prohibition does not lie in the circumstances of the case because prohibition can be issued only in respect of judicial or quasi‑judicial acts and the levy and collection of Toll Tax is not an act of this nature.
In support of his first objection he has referred to several authorities including Charanjit Lal Chaudhry v. The Union of India and others (A I R 1951 S. C p. 41 paras 7 and 43); Indian Sugar Mills Association through its president Sri Hari Raj Swaru v. Secretary to Government Uttar Pradesh Labour Department (A I .R 1951 All. p. 1 paras. 8 and 9) ; In re V. Chakkarai Chettiar (A I R 1953 Mad. page 96 para. 11) ; Surrendara Transport and Engineering Co., Ltd., Kalka and others v. State of Punjab (A I R 1954 Pb. 264 para. 5); Sm. Raj Rani Sekhri v. U. P. Government and another (A I R 1954 All. p. 492 paras. 8 and 9) ; Madhab Chandra Das and others v, Regional Transport Authority (A I R 1954 Assam 212 para. 2)., I may quote observations from 3 of these authorities only to illustrate the legal position. The Supreme Court of India in Charanjit Lal v. Union of India has observed
"It has been held in a number of cases in the United States of America that no one except those whose rights are directly affected by a law can raise the question of the constitu tionality of that law. This principle has been very clearly stated by Huges, J. in McCabe v. Atchison (1914) 235 U. S. 151 in these words
"It is an elementary principle that in order to justify the granting of the extraordinary relief, the complainant's need of it and the absence of an adequate remedy at law must clearly appear. The complainant cannot succeed because someone else may be hurt. Nor does it make any difference that other persons who may be injured are persons of the same race or occupa tion. It is the fact clearly‑established of injury to the complainant‑not to others which justifies judicial interference."
On this statement of the law, with which I entirely agree, the scope of the discussion on this petition is greatly restricted at least in regard to the first two fundamental rights. The company and the shareholders are in law separate entities, and if the allegation is made that any property belonging to the Company has been taken possession of without compensation or the right enjoyed by the company under Article 19 (1) (f) has been infringed, it would be for the Company to come forward to assert or vindicate its own rights and not for any individual shareholder to do so."
The Full Bench of the Allahabad High Court in Indian Sugar Mills Association v. Secretary to Government Uttar Pradesh Labour Department and others has observed as follows
"We do not want to express any opinion whether those orders were right or wrong, but other writs, directions or orders, cannot be placed on the same footings as a writ of habeas corpus and every one of the several million persons of this State cannot be given the right to come up and agitate and reagitate against an Act or order like the one in question when he cannot show that his rights are directly affected by that order."
A Division Bench of the Punjab High Court in Surrendara Transport and Engineering Co. Ltd., Kalka and others v. State of Punjab has observed as follows
"This petition can be dismissed on the short ground that the petitioners have no locus standi to challenge the validity of the Act, for it has been held repeatedly that a statute may be assailed only by one relying on an alleged invasion of his own constitutional rights. The invasion must affect his interests ad versely and this interest must be a genuine proprietary interest and not merely a remote interest vide Article 13 of Willoughby on the Constitution of the United States, Volume I. The tax in the present case is to be paid not by the petitioners who are plying their vehicles on hire but by the passengers who are carried or by the owners of the goods which are transported and it seems to me, therefore, that the present petition is incom petent."
It is unnecessary to quote, from more authorities because the position appears to be fairly clear that the petitioner which does not pay Toll Tax cannot come to the Court for relief on the ground that the contractors whose trucks are employed by the petitioners pay the tax and are expected in the ordinary course to include that tax in their charges and thus to indirectly recover q them from the petitioners. Mr. Dingomal who appeared for the petitioners has not even attempted to meet this objection of Mr. Abbasi and has cited no authority to the contrary. I therefore hold that the petitioners have no locus standi to file the writ petition and that it is not maintainable.
The above decision is sufficient to dispose of the writ petition but I would like to add that the objection taken by Mr. Abbasi to the suppression of facts and the attempt of the petitioners to create a misleading impression on the Court's mind calls for attention. Writ Petitions are as a rule admitted, heard and decided on the basis of the averments made in the petitions and the depositions contained in the supporting affidavits. By the very. nature of this procedure the Court relies on the truth and completeness of the statements which are contained in these documents. If they are not reliable then there can be no protection to the opposite parties against whom ex parte orders are usually passed on the perusal of the petitions and the affidavits and to whom a great deal of harm can be caused if care is not taken in making statements correctly, without suppres sing material facts and without introducing statements or using construction of sentences which may be misleading. Mr. Dingomal had brought this petition and the accompanying application for injunction to me in my chambers and wanted that ex parte injunction orders should be issued. It was only by way of an abundant caution that I issued notice of the in; unction application although I was inclined for a few moments to issue immediately a prohibitory order restraining the respondents from recovering Toll Tax. The necessity of making complete and correct statements in a writ petition and its supporting affidavits cannot be overempha sized. It has been held over and over again that if a petitioner suppresses material facts within his knowledge then he disentitles himself to any relief. Some Courts have even gone to the extent of saying that it is not right for the petitioner to pick and choose and mention those facts only which may be regarded by the peti tioner to be relevant, because in a matter like a writ petition a fact which may be considered by the petitioner or his counsel to be irrelevant may ultimately turn out to be very relevant for the purposes of the case. Wanchoo and others v. Lakshmi Lal and others (A I R 1952 Rajasthan 22), is one of such rulings. In this connection the following observations of Warrington, L. J. in The King v. Kensington Income Tax Commissioner (1917 Law Reports 1, K. B. p. 486 at 509) are worthy of attention
"It is perfectly well settled that a person who makes an ex parte application to the Court that is to say, in the absence of the person who will be affected by that which the Court is asked to do is under an obligation to the Court to make the fullest possible disclosure of all material facts within his knowledge, and if he does not make that fullest possible disclosure, then he cannot obtain any advantage from the proceedings, and he will be deprived of any advantage he may have already obtained by means of the order which has thus wrongly been obtained by him. That is perfectly plain and requires no authority to justify it."
I may mention that in the above case a writ of prohibition was sought to restrain the Commissioner from making an assess ment upon the property of the applicant. A lady had described a house to be the property of her brother but according to the respondent she was the owner of the house. Her brother was only a benamidar and she had paid for the house. The Court refused to grant prohibition because she had stated that she was a guest in her brother's house. This statement was regarded as amounting to suppression of real facts.
The observations contained in Halsbury's Laws of England V. 9 page 836 lead to the same conclusion. According to them where an application is made ex parte, uberrima fides is required, and if the Court comes to the conclusion that the affidavit in support of the J application was misleading, and that the rule nisi was obtained by concealment of facts which ought not to have been concealed and by statements which were not is accordance with the facts, the Court will discharge the rule without going into the merits of the application.
Mr. Abbasi has relied on Asiatic Engineering Co. v. Achharu Ram and others (A 1 R 1951 Ail. 746 para. 51). In this case there is a lengthy discussion on the importance of making fair and candid statements in writ petitions and at the time of obtaining ex parte orders. It is pointed out that according to Lord Cozens‑Hasdy, even if there could not be a second application for a writ of prohibition such a consideration should not be in the way of the Court for refusing to give effect to the salutary rule of practice, namely, refusing to grant prohibition where in cases there has been a mis‑statement of material facts. Suppression, misrepresentation and mis‑statement of facts are dangers against which the Court has not only to guard the opposite party but to guard itself. Malik, C. J. observed in this ruling "Courts, for their own protection, should insist that persons invoking these extraordinary powers should not attempt, in any manner, to misuse this valuable right by obtaining ex parte orders by suppression, misrepresentation or mis‑statement of facts."
Mr. Abbasi has also referred to Sm. Raj Rani Sekhri v. U. P. Government and another (A I R 1954 All. 492). In this case a lady had made an appli cation for a writ of mandamus directing the opposite parties to withdraw an order. The petitioner had stated that she was a licensee but it was found that she was not the licensee but that an institution represented by her was a licensee. She had not disclosed that she was acting on behalf of and for the benefit of the institution. It was held that the petition was liable to be thrown out on this ground alone.
I have referred to the above authorities only to emphasize that this is a serious matter in the exercise of extraordinary juris diction, that the parties should take advantage of it without coming with clean hands and by creating a misleading impression try to misuse the process of the Court. I therefore accept the contention of Mr. Abbasi and hold that the petitioners have disentitled themselves by suppressing material facts and by making misleading statements.
I need not discuss and decide the third objection raised by the counsel of the respondent No. 1 namely that the petition for a writ of prohibition is not maintainable.
The injunction application and the main petition are hereby dismissed with Rs. 500 as costs payable by the petitioner to respondent No. 1.
Notice be issued to Jagdish Chandra Dawar, Manager, Dalmia Cement Limited, to show cause why he should not be prosecuted under sections 193 and 199, P. P. C.
A. H. Petition dismissed.
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