ARYA SAMAJ WAZIR BAGH Vs. MANAGING COMMITTEE

JUDGEMENT

(1.) THIS LPA arises out of the judgement of the learned Single Judge passed in OWP No. 1096/2002. The facts material for its disposal may be noticed. Appellant and respondent No. 1 to this LPA have disputed the locus of each other in managing the affairs of D.A.V. Institution in a suit which is subjudice before the civil court. During its pendency the respondent No. 1 filed a petition seeking a writ of mandamus to command the respondent -state to accord approval in its favour to the effect that it is the only genuine Managing Committee. Writ petition came to be decided requiring functionaries of the state to examine the claim of the writ petitioner (respondent No. 1 herein). In compliance thereto, claim of the writ petitioner was examined begetting approval/recognition in its favour. Being aggrieved, therefore, this LPA.

(2.) WHAT irks us the most is the stance of the writ petitioner, respondent No. 1 taken by him in his objections filed against the admissibility of leave to appeal sought by the appellant which reveal that when he had approached the writ court, at that point of time he had already subjected himself to the jurisdiction of the civil court and the suit was subjudice yet he did not disclose this fact in the writ petition and concealment of such important fact makes it manifest that he had approached the writ court with unclean hands. It is by dint of sheer misrepresentation that he could succeed to persuade the writ court for granting relief to him. Had he averred pendency of the suit in his writ petition perhaps result would have been different. Be that as it may, question that calls for an answer is as to what should be the fall out of concealment of fact, we mean a fact which has bearing on the issue raised in the writ petition and pendency of judicial proceeding relating to an issue having direct bearing on the subject matter of the writ petition cannot be called to be a non material fact by any stretch of imagination, therefore it was obligatory upon the writ petitioner -respondent No. 1 to give full details of facts so that court would examine whether cause urged was sufficient for taking cognizance of the writ petition. The difficulty for the respondent No. 1 is that even an indepth examination of the writ record does not help him because there is no mention about the institution of the civil suit and keeping back the material fact has resulted in misleading the court, consequently, issuance of the process of court without there being cause. Thus with a view to prevent the abuse of process of the court, it is the bounden duty of a writ petitioner to give full details of material facts. Suppression thereof has to entail dismissal of a writ petition without entering into the merits of the case. The respondent No. 1 having concealed the pendency of judicial proceeding notwithstanding the fact that he has participated in the suit amounts to deceitful conduct which is sufficient to disentitle him to the relief sought.

(3.) IT brings us to another important question as to whether respondent No. 1 could have filed the writ petition during the pendency of the civil suit. Before responding to the question it needs to be borne in mind that an aggrieved person has a right to challenge any action which violates his legal or constitutional rights but it goes without saying that he cannot go to more than one forum at a time agitating the same grievance, obviously when an effective and equally efficacious alternative remedy is invoked and is pending, the writ court would normally refuse to exercise its extra ordinary writ jurisdiction under article 226 of the Constitution of India not because it is a rule of law but as a rule of policy and discretion. Nonetheless the court can, in exceptional cases, issue writs provided it is satisfied that exercise of such discretion is warranted and an alternative remedy can certainly not oust or impair the extra ordinary writ jurisdiction of the court. We say so because by now law is settled that the writ jurisdiction can be exercised to mitigate the sufferings of the people, therefore, availability of an alternative and efficacious relief cannot ipso facto render a writ petition non maintainable but maintainability depends upon the facts of each case which need to be examined carefully and cautiously.