T N RUGMANI Vs. C ACHUTHAMENON

JUDGEMENT

(1.) 'Much ado about nothing' or the appellants were guilty of condemnable conduct' disentitling them from any relief in equity jurisdiction was the issue which was debated, vigorously, in these appeals directed against order of the Kerala High Court. More so because the High Court,not only, dismissed the writ petition of appellants but issued directions, in a public interest litigation to the Municipal Council to take appropriate action in relation to the construction, raised in pursuance of interim order granted by the court.

(2.) Nature of public interest litigation, its pro bono publico content, justification for entertaining it are not proposed to be gone into but it need be observed that the court being ceased of a petition dealing with same subject matter, it would have been more appropriate if , it could have exercised restraint in light of the law laid down by this Court in Chhetriya Pradushan Mukti Sangharsh Samiti v. State of U.P. JT 1990 (3) SC 685 , Ramsharan Autyanuprasi v. Union of India, (1989) 1 Suppl. SCR 251 and Sachidanand Pandey v. State of West Bengal (1987) 2 SCC 295 . Merely because authorities constituted under the statute failed in their effort to get interim order vacated was hardly any occasion for invoking jurisdiction under Art. 226 by way of public interest litigation. We stop at this as what started as grievance against flagrant disregard of provisions of law by the Urban Development Authority and Municipal Council of Trichur (for brevity TUDA and MC respectively) for unjustifiably, withholding permission to raise construction on land which was not earmarked for any scheme for planned development under Town Planning Act (referred as Act) changed complexion with appearance of no less a person than exChief Minister of the State espousing social cause, joined, later, by a local editor, of newspaper, as well, and this Writ Petition No. 11011/83 became the main petition with impleadment of the appellant and Shri Unnikrishnan (hereinafter referred as UK) the petitioner of Petition No. 5287/ 83. However, we may hasten to add, to obviate any misgiving, that if the finding recorded by the High Court that theWrit Petition No. 5287/83was not maintainable or the appellant by their condfit forfeited their right to get redress is well founded then no other issue arises irrespective of it that the material which formed the basis for the aforesaid finding was collected in petition No. 11011/ 83 filed in public interest whereas the building was constructed in pursuance of interim order granted in Writ Petition No. 5287 of 1983.

(3.) Taking up the issue of non-maintainability it may be stated that denial of constitutional remedy, for this reason, cannot be equated with bad faith or lack of bona fide. The scope of the two are different. In one a person may be honest and his grievance genuine yet the Court may not be able to grant him any relief either because the cause of action or any part of it did not arise within the territorial jurisdiction exercised by the High Court or the petition may be defective as the person approaching may not be entitled to file it. That is something akin to lack of jurisdiction. The other, namely, dismissal for bad faith arises due to improper conduct of the person invoking Jurisdiction either before or after presentation of the petition. Even an unassailable cause or illegal and arbitrary order may fail to move the conscience of the Court due to inequitable and unjustifiable behaviour or conduct in equitable jurisdiction. The basic error committed by the High Court was that it did not keep in mind the distinction between non-maintainability and lack of bona fide. Consequently it held the petition No. 5287 of 1983 to be not maintainable because of its conclusions that even though appellants were the real owner the petition was filed by another person and the appellants had not come to Court with correct and true disclosure. The error in this finding shall stand demonstrated when the two are examined separately, as should have been done by the High Court. Writ Petition No. 5287/ 83 was filed on behalf of one M. B. Menon Unnikrishnan (hereinafter referred as MBUK) with power of attorney in favour of Shri E. P. G. Menon (hereinafter referred as EPG) for direction to the TUDA to sanction the plan as directed by the State Government. It has been found by the High ' Court that there was no one with this name. True, but that was. inadvertent error as UK who, admittedly, was the owner of the plots in dispute filed an affidavit admitting that Writ Petition No. 5287 of 1983 was filed on his behalf by his father as holder of power of attorney. He explained that his name was wrongly described in cause title as MBUK. And his father, who signed on his behalf, inadvertently failed to notice the mistake. This was admitted even by EPG, when he appeared as witness. The petition was, thus, filed by a person who was very much there except that his name was incorrectly mentioned. The High Court in view of these facts, unnecessarily, made too much of small inadvertent - mistake. From evidence on record, specially deposition of EPG, it is clear that on the date when petition was filed UK was the real owner and there was only a proposal between EPG and Shankernarayanan (referred as SN) for sale of land in dispute which materialised long after filing of the petition. Therefore, SN could not have filed the petition in March 1983. Accepting everything found by the High Court SN, utmost, was an interested person who could not have approached the Court for issuing a writ of mandamus to State Government since on the date of filing of petition no right or title vested, in the land in dispute, in him. Nor he could be considered to be a person aggrieved by inaction of 'I'UDA who could have sought any direction from the Court. The High Court, therefore, decided the maintainability of the petition, erroneously, not on the facts as they were on the date when petition was filed but on subsequent events which took place much thereafter. The finding in these circumstances that appellant was real owner and he should have filed the petition cannot be sustained.