VINUBHAI MALABHAI VISANI Vs. LATHI NAGAR PANCHAYAT

JUDGEMENT

(1.) The Counsel for respondent No. 4 contended that this Special Civil Application is not maintainable for the reason that one of the petitioners has already filed civil suit for the same relief. Another contention raised by the Counsel for the respondent is that the contract of collection of vegetable market tax has come to an end on 31st March, 1995 and as such this petition is otherwise not maintainable. I have gone through the contents of this Special Civil Application. On 30th December, 1995 preliminary objection was raised by the Counsel for respondent No. 1 to the effect that petitioner No. 4 has already filed suit in the Court of Civil Judge (J.D.), at Lathi and this fact has been suppressed. This Court has ordered for deleting the name of petitioner No. 4.

(2.) It is not in dispute that one of the petitioners has filed civil suit on the same subject-matter and that is pending, though that was a serious concealment of fact made by the petitioners. Now that petitioner No. 4 has been deleted, still the fact remains that other petitioners have not come before this Court with clean hands. The suit has been filed on the same subject-matter and as such other petitioners should have joined in the suit rather than to have these parallel proceedings before this Court. This course has been adopted deliberately and this Court cannot be oblivious of the fact that petitioner No. 4 was also one of the petitioners who initially joined in this petition. These two simultaneous proceedings in respect of same cause otherwise also is difficult to appreciate. In the case of Agricultural and Processed Food Products v. Oswal Agro Furane, reported in 1996(4) SCC 297 the Apex Court has held that suppression of material fact is an abuse of the process of the Court. The Apex Court, in paras 29 and 30 of the judgment held as follows :

(3.) Otherwise also I do not find any substance in this matter. The petitioner prayed in the Special Civil Application to issue a writ of Mandamus or any other writ in the nature of Mandamus quashing and setting aside the imposition of Tax, i.e., Vegetable Market Fee Tax, declaring it to be violative of Arts. 14 and 21 and 243(p)(q)(r)(s) of the Constitution of India and ultra vires of Gujarat Municipalities Act, 1963. Challenge has also been made by the petitioner to the action of the respondents to collect the aforesaid tax. It is a case where implementation and not provision has been challenged.