The Petitioner's Own Conduct
Chapter
Syllabus topic 7, "Limits of judicial review"
Pages 358 to 360 of 430
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.
The Petitioner's Own Conduct
Taking a benefit under the order
A person who accepts what an order gives him cannot ordinarily challenge what it takes away. An employee who accepts a compassionate appointment on the terms of a scheme cannot then challenge the terms; a party who accepts the compensation cannot challenge the acquisition. The principle is one of approbation and reprobation.
The relief where conduct is bad
Dismissal, ordinarily.
Dismissal with costs, where the suppression is deliberate.
Relief on terms, where the illegality is grave but the petitioner's conduct is poor: the court may quash the order and refuse consequential benefits.
A worked example
A contractor whose bid was rejected files a writ petition alleging bias, and obtains an interim order staying the award. He does not disclose that he had filed and withdrawn an identical petition three weeks earlier, or that his own bid was submitted after the deadline.
Both omissions are material: the earlier petition goes to the propriety of entertaining this one, and the late submission goes to whether he was in the field at all. The petition will be dismissed for suppression and the interim order vacated, probably with costs, and the merits of the bias allegation will never be examined. That is the practical force of this limit.
What this does NOT mean
It does not mean every omission is fatal. The fact must be material.
It does not mean bad conduct validates an illegal order. The order remains bad; this petitioner does not get relief, and another may.
It does not mean waiver applies to everything. It does not apply to a fundamental right or to want of jurisdiction, because no consent can confer power.
Quick revision
The remedy is discretionary, so conduct matters. Suppression of material facts is the commonest ground, because the court acts on affidavits and often ex parte. Unclean hands, acquiescence, waiver, taking a benefit under the order, and delay are the others. Jal Nigam is the authority on acquiescence and G. Sarana on waiver of bias. A fundamental right cannot be waived, which is Olga Tellis, and jurisdiction cannot be conferred by consent. Relief may be refused, refused with costs, or given on terms.
Test yourself
1. Why is the duty of candour so strict in a writ petition? Because the court acts on affidavits and often grants interim relief ex parte, so full disclosure is the only protection against being misled.
2. What can be waived and what cannot? A procedural objection such as bias can be waived, which is G. Sarana; a fundamental right cannot, which is Olga Tellis, and want of jurisdiction cannot be cured by consent.
The Petitioner's Own Conduct
3. What is the effect of taking a benefit under the impugned order? The petitioner cannot approbate and reprobate, so he is ordinarily refused relief against the part of the order that harms him.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.