The Petitioner's Own Conduct

In one line

A discretionary remedy is refused to a petitioner who has not behaved properly, and the commonest way of not behaving properly is to hide something from the court.

In the wording a student can write in an exam: the writ jurisdiction being discretionary, relief may be refused where the petitioner has suppressed material facts, has come to court with unclean hands, has acquiesced in the act complained of, has waived his objection, has taken a benefit under the very order he challenges, or has approached the court after inordinate delay.

Suppression of material facts

The rule is that a petitioner invoking a discretionary jurisdiction must make a full and candid disclosure of all facts material to the relief he seeks, including facts against him. A petition which conceals an earlier petition, an adverse order, an alternative remedy already pursued, or a fact which would have influenced the grant of interim relief is liable to be dismissed on that ground alone, and often with costs.

Why the rule is strict. Because the court acts on affidavits and often grants interim relief ex parte. The only protection against being misled is the duty of candour.

What is material. Anything that might reasonably have affected the court's decision to entertain the petition or to grant interim relief; not every fact.

Unclean hands

A petitioner who has himself acted illegally in the transaction may be refused relief. A person who obtained a licence by a false declaration cannot complain that its cancellation was procedurally defective, though the principle is applied with care where a fundamental right is engaged.

Acquiescence and waiver

Acquiescence is standing by while the act complained of is done or acted upon, and it is close to laches. Chairman, U.P. Jal Nigam v. Jaswant Singh, AIR 2007 SC 924, refused relief to employees who had accepted retirement, taken their benefits and come to court only after others succeeded, holding that a person who is not vigilant and acquiesces cannot be given the same relief as one who was vigilant.

Waiver is the abandonment of a known right. It applies squarely to bias: G. Sarana v. University of Lucknow, AIR 1976 SC 2428, holds that a candidate who knew the facts, appeared before the committee and took his chance cannot afterwards question its constitution, applying Manak Lal v. Dr. Prem Chand, AIR 1957 SC 425.

But a fundamental right cannot be waived. Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, holds that there can be no estoppel against the enforcement of a fundamental right, so an undertaking not to claim one does not bar the petition.

That is the distinction an answer must draw: a procedural objection can be waived; a fundamental right cannot.