Suppression of material facts disqualifies a party from obtaining relief in a writ petition.

JUDGMENT :

HIRANMAY BHATTACHARYYA, J.

1. The instant appeal is at the instance of the writ petitioner and is directed against an order dated September 17, 2018 passed by a Hon’ble Single Judge in WP No. 14240 (W) of 2018.

2. By the order impugned the writ petition was dismissed by the Hon’ble Single Judge upon holding that the petitioner is guilty of suppression of material fact and also that the petitioner did not come with clean hands.

3. The appellant herein claims that the respondent no. 6 is the owner of a premises which is adjacent to the premises of the petitioner on the western side. The appellant alleges that the respondent no. 6 is making construction without obtaining any sanction plan from the Howrah Municipal Corporation (for short “the HMC”) and without leaving any open space on any side. The appellant submitted a representation dated May 24, 2018 before the HMC but the HMC did not take any action on the said representation. Accordingly, the instant writ petition was filed praying for demolition of the unauthorized construction at premises no. 4/2, Shibu Chakraborty Lane, Bally, District-Howrah allegedly raised by the respondent no. 6 herein.

4. The said writ petition was dismissed by the order dated September 17, 2018. Being aggrieved the writ petitioner preferred the instant appeal.

5. Mr. Partha Pratim Roy, the learned advocate for the appellant contended that mere non-disclosure of the fact of filing of the title suit no. 35 of 2013 by the appellant herein as well as the fate of such suit in the writ petition, cannot be said to be a suppression of material facts. He contended that the title suit was filed on the ground of actionable nuisance caused by the respondent no. 6 herein and the HMC was not a party to such suit. He further contended that the appellant herein has disclosed about the filing of such suit and the fate of such suit in the application for temporary injunction filed in connection with the instant appeal. He drew the attention of the court to the copy of the judgment and decree passed in such suit, a copy of which has been annexed to such interlocutory application filed in connection with the instant appeal. By referring to the averments made in the plaint and the reliefs prayed for in the suit, Mr. Roy, contended that the cause of action of the suit and the instant writ petition are entirely different and non-disclosure of such fact does not amount to a suppression of a material fact as the decision in the title suit cannot have any bearing in the adjudication of the instant writ petition.

6. Mr. Roy further drew the attention of this Court to an inspection report of the Sub-Assistant Engineer, HMC where in it was indicated that there is no sanction building plan in respect of the impugned construction. Mr. Roy, thus, contended that since it is evident on inspection that the two storied construction has been made without any sanction building plan, a direction should be passed to demolish the same.

7. Mr. Roy placed reliance upon the following judgments of the Hon’ble Supreme Court of India in the case of: (1) S.J.S Business Enterprises (P) Ltd. vs. State of Bihar and Ors. reported at (2004)7 SCC 166 and (2) Arunima Baruah vs. Union of India and ors. reported at (2007)6 SCC 120 in support of his contention that mere non-disclosure of a fact cannot be a ground for dismissal of the writ petition unless such fact is a material one.

8. Mr. Bihani learned advocate for the HMC submitted that a stop work notice under Section 177 (1) of the Howrah Municipal Corporation Act, 1980 has already been issued directing the respondent no. 6 and one Gouri Bera to forthwith stop the construction work. Mr. Bihani contended that the HMC has taken steps in accordance with law after it came to the notice of the said authority that a construction has been made at the said premises without any sanction plan. Mr. Bihani further contended that the appellant herein approached the Civil Court for an identical relief and having