( 2025:HHC:26384 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMP(M) No.1169 of 2025 and Review Petition No.58 of 2025, CMP No.16109 of 2025 in CWPIL No.80 of 2022 and CWP No.3444 of 2023 a/w COPC No.9 of 2024. Decided on: 01.08.2025 Balak Ram Sharma & another ....Applicants/Petitioners Versus M.C. Shimla & another ....Respondents Coram The Hon’ble Mr. Justice G.S. Sandhawalia, Chief Justice The Hon’ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 For the Petitioners : Mr. Ajay Sharma, Senior Advocate, with Mr. Atharv Sharma, Advocate, for the applicants/petitioners. For the Respondents : Mr. Mukul Sood, Advocate, for respondent No.1. : Mr. Subhash Sharma, Advocate, for respondent No.2. G.S. Sandhawalia, Chief Justice (Oral). Review Petition No.58 of 2025. The Review Petition has been filed under Order 47 Rule 1 read with Section 114 CPC to recall the order dated 19.06.2023, passed in CWPIL No.80 of 2022 titled Jeet Ram Panwar Vs. Municipal Corporation, Shimla & another. The application has been filed on 08.07.2025 in which it has been 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 mentioned that the application is barred by 02 years and 12 days in filing the Review Petition, by applicants Balak Ram Sharma and Rohit Sharma. 2. A perusal of the main case would go on to show that the petitioner-Jeet Ram Panwar had approached this Court, as such with the prayer that the residents of Village Bagh have problem of cremating the dead bodies as such on account of delay in carrying out the renovation of the cremation ground. Reference was made to parcel of land in Khasra No.1188 at Mohal Panjari, Village Bagh, Tutikandi, Ward No.10 Shimla which has been ear-makred for the purpose of cremating the dead bodies. It had been pleaded that a sum of Rs.11,56,400/- has been estimated for construction of the proposed cremation ground and submitted for approval of the Competent Authority for the renovation of the cremation ground and there is no proper place to store the wooden material necessary for lighting the pyre and protection which is required specially during the rainy season and there is also no provision for properly accommodating the people who come to pay their tributes to the departed soul. It is also specified that natural source of water is there nearby, which is also required to be properly maintained for further use at the time of the tribute payers. The same was on the basis that a 3 representation had been made by 71 residents of the village which would be clear from reading of Annexure P-3. 3. Notices were issued in the said case on 22.11.2022, when the matter was ordered to stand over for three weeks. Before the matter could be taken up, the applicants/petitioners had filed an application on 27.12.2022 being CMP No.4190 of 2022 to be impleaded as applicants under Order 1 Rule 10 read with Section 151 CPC. When the matter was taken up on 25.04.2023, none had put in appearance on behalf of the petitioner nor on behalf of the applicant. 4. Inspite of the fact that they had filed application for impleadment, CWP No.3444 of 2023 was filed by the same set of applicants/petitioners, namely, Balak Ram Sharma and Rohit Sharma, whereby they had challenged the construction of cremation shed in Khasra Nos.1188 and 1189 in Village Bagh, Teshil & District Shimla being unauthorized construction and contrary to the rights of the inhabitants being health hazard. A perusal of the said petition, would go on to show that not even a whisper was made in the petition regarding the fact that there was an earlier application filed under Order 1 Rule 10 CPC in the Public Interest Litigation (PIL) to be impleaded as party, which had also been filed. The concealment is to the extent that there 4 was reference to two other previous litigations also. The relevant part reads as under:- “17. That the petitioners earlier approached this Hon’ble Court by way of two Writ Petitions, being C.W.P. No.2238 of 2023 and C.W.P. No.2406 of 2023, referred to supra, but the same were withdrawn with liberty to file fresh. and no other petition is filed in any other Court.” 5. Accordingly, notice was issued by the Division Bench in the writ petition also and replie(s) were called for. In the meantime CWPIL No.80 of 2022 titled Jeet Ram Panwar Vs. Municipal Corporation, Shimla & another was disposed of on 19.06.2023 on the ground that the cremation ground has been renovated as sought by the petitioner and the grievance having been redressed, the CWPIL was closed. The said order is sought to be modified, as noticed earlier, by filing an application at a belated stage. 6. The factum of concealment by the applicants Balak Ram Sharma and Rohit Sharma is apparent because when they filed CWP No.2238 of 2023 on 21.04.2023, it is specifically mentioned in paragraph 3 in the said case that the matter is sub- judice in CWPIL No.80 of 2022 and they had also filed an application under Order 1 Rule 10 CPC regarding the issue in dispute. The writ petition apparently was withdrawn on 25.04.2023 at the intial stage with liberty to file afresh. 5 7. Thereafter, CWP No.2406 of 2023, the second case came to be filed on 27.04.2023 i.e. 2 days later, in which also the same aspects were mentioned regarding the pendency of the case and the filing of application under Order 1 Rule 10 CPC. Notice had also been issued in the said case and counsel for the private respondent had put in appearance and taken time to file reply. However, on 30.05.2023, the writ petition was dismissed as not pressed with liberty to file afresh, in case, the need so arises. The relevant paragaph in the second petition being CWP No.2406 of 2023 reads as under:- “4. That, one of the matter w.r.t. construction of cremation ground is in sub-judice before the Hon’ble High Court already as CWPIL No.80 of 2022, wherein the petitioner to that petition Mr. Jeet Singh Panwar has shown it as public interest but which actually does not as per the attending circumstances in real. On the other side people of Bag village who are against the construction at proposed placed have addressed their grievances to Hon’ble Chief Justice of the Hon’ble High Court on dated 15.12.2022. The copy of the letter addressed to Hon’ble Chief Justice of H.P. High Court (under epistolary jurisdiction), is annexed here as Annexure P-2. Thereafter, the present petitioners has filed Order 1, Rule 10 application, joining as party which is still pending.” 8. However, when CWP No.3444 of 2023, the third case was filed after the disposal of CWPIL No.80 of 2022 on 19.06.2023, there is not a whisper regarding the application under Order 1 Rule 10 CPC, rather the pleadings taken are that the petitioners are aggrieved persons and the writ petition was 6 being filed in the representative capacity. Once, there was reference of the earlier litigation and we have already reproduced the mentioning of the earlier application under Order 1 Rule 10 also, thus, it is apparent that there was deliberate attempt to amend the pleadings and withdraw the admission that an application under Order 1 Rule 10 has been filed and therefore, our reasoning as such not to hear the petition on merit gets cemented. 9. It is pertinent to notice that prior to the filing of the application for modification, the matter was taken up by one of us Hon’ble Mr. Justice Ajay Mohan Goel, Judge on the single side before whom the CWP No.3444 of 2023 was listed and it had been observed on 30.06.2025 that the application had to be filed before the Division Bench. The said order reads as under:- “During the course of hearing of this petition, an objection has been taken with regard to maintainability of the writ petition by the private respondent, on the ground that in the writ petition that was filed by the private respondent, i.e. CWPIL No.80 of 2022, a miscellaneous application was filed by the present petitioners, i.e. CMP No.4190 of 2020, in CWPIL No.80 of 2022, dated 11.12.2022 and neither this application was pursued by the present petitioners in those proceedings, nor the final order that was passed by Hon’ble Division Bench of this Court on 19.06.2023, disposing of the petition on the statement made by learned counsel for the Municipal Corporation therein that the Cremation Ground was being renovated, stood assailed and no review thereof has been sought. In order to ascertain this fact, this Court had directed the Registry to produce the record of CWPIL No.80 of 2022 and perusal thereof demonstrates that there is merit in the 7 objection so taken by learned counsel for the private respondent. At this stage, learned Senior Counsel for the petitioners submits that the matter be taken up after one week. On his request, list on 07.07.2025.” 10. It is thus, apparent that the application for recall of the order was only filed on 08.07.2025 after the observation made by one of us Hon’ble Mr. Justice Ajay Mohan Goel, Judge. The matter then has been listed before the Special Bench as such, keeping in view the order passed by us in the review application on 11.07.2025. Keeping in view the fact that there was a concealment regarding the filing of the earlier application under Order 1 Rule 10 CPC. 11. Mr. Ajay Sharma, learned Senior Counsel for the applicants/petitioners has tried to take us on merits of the case regarding the rights of the petitioners as such and the setting up of the cremation ground, on various grounds, including the fact that there was an objection by the State. The Municipal Corporation as such, in its reply, submitted that the old crematorium has been renovated by raising the retaining wall and building of a shed and area of 18 sq.mtrs, adjacent to the Nullah present on the spot and that the people of village Bagh had independent Bartandari rights. The relevant portion as such reads as under: 8 “That the petitioner be estopped from filing the present writ petition against the replying respondent for their own act, conduct, deed and submissions for the reason that initially around 82 people from the village Bag represented the replying respondent for the renovation of old crematorium in question, situated in Khasara no.1188 of Mohal Panjari Tehsil and Distt. Shimla. Seeing the larger public interest involved in the matter, the issue for renovation of old crematorium was laid before the House of M C Shimla and after due deliberation, the same was approved and accordingly, an estimated to the tune of rupees 11,56,400/- was prepared, tender floated and work awarded on 21.3.2023. 2. That the present writ petition is not maintainable at this stage as the work in question regarding renovation of the old crematorium in question already stands completed. The old crematorium has been renovated by raising of retaining wall and building of a shed and area of 18 sq.mtrs. Adjacent to the Nallah present on the spot. Hence, the present writ petition deserves to be dismissed on this ground alone.” 12. We are thus of the considered opinion that once the writ petitioner-the present applicants/petitioners had filed the application under Order 1 Rule 10 CPC, they were under bounden duty as such to have disclosed the fact in CWP No.3444 of 2023. Having concealed the said fact and opted not to press the said application under Order 1 Rule 10 CPC to show their interests and thereafter having filed the application for recall of the order only on account of the observations made by one of us Hon’ble Mr. Justice Ajay Mohan Goel, Judge on 30.06.2025 would show their conduct, and intent to resort to forum shopping. 13. It is in such circumstances, we do not propose to deal with the issue on merits, keeping in view the law laid down 9 by the Apex Court in Prestige Lights Ltd. Vs. State Bank of India (2007) 8 SCC 449. The Apex Court in the said case has held that where a party while concealing facts tries to get relief it is not to be heard on merits under Article 226 of the Constitution of India. The relevant part reads as under:- “33. It is thus clear that though the appellant Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a court of law is also a court of equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the writ court may refuse to entertain the petition and dismiss it without entering into merits of the matter. 34. The object underlying the above principle has been succinctly stated by Scrutton, L.J., in R. V. Kensington Income Tax Commrs.4 in the following words: “[I]t has been for many years the rule of the court, and one which it is of the greatest importance to maintain, that when an applicant comes to the court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts-facts, not law. He must not misstate the law if he can help it-the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty be which the court enforces that obligation is that if finds out that the facts have not been fully and fairly stated to it, the court will set aside, any action which it has taken on the faith of the imperfect statement.” (emphasis supplied) 35. It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a writ court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. 10 If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, the court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible. 36. In the case on hand, serveral facts had been suppressed by the appellant Company. Collusive action has been taken with a view to deprive the respondent Bank from realising legal and legitimate dues to which it was otherwise entitled. The Company had never disclosed that it had created third-party interests in the property mortgaged with the Bank. It had also shifted machinery and materials without informing the respondent Bank prejudicially affecting the interest of the Bank. It has created tenancy or thrid-party right over the property mortgaged with the Bank. All these allegations are relevant when such petitioner comes before the court and prays for discretionary and equitable itself. In our judgment, the submission of the respondent Bank is well founded that the appellant is not entitled to ask for an extraordinary remedy under Article 226 of the Constitution from the High Court as also equitable remedy from this Court under Article 136 of the Constitution. A party, whose hands are soiled, cannot hold the writ of the court. We, therefore, hold that the High Court was not in error in refusing relief to the appellant Company”. 14. It is also to be taken into account that the purpose of setting-up of cremation ground as such, is also for the general welfare of the community and the residents of the area and the obstruction to the same which had been apparently on personal interests of the applicants/petitioners and therefore, dehors the 11 interests of the other residents, especially, keeping in view the peculiarity and geographical nature of the land-scape of the hill- State, where people have to walk firstly carrying the deceased from their village to the road head and then walk from the road head to the closest crematorium. It is a sad state of affairs that even for the last rites, people have to struggle to get a decent burial and the intention of this litigation as such to deny the residents of the area a respectful place of final rites goes on to show the malafides as such of the applicants/petitioners. 15. In such circumstances, we are constrained not only to dismiss the application being CMP No.16109 of 2025 for consideration of the application under Order 1 Rule 10 for recall of the order dated 19.06.2023 having remained un-decided, alongwith the application for condonation of delay, but also the Writ Petition No.3444 of 2023 on the same grounds. The said application also accordingly, does not merit any consideration, keeping in view the fact that no effort as such was rather made to revive the application, immediately thereafter. The writ petitioners were only waiting and taking chance while filing a separate independent proceedings bearing C.W.P. No.2238 and C.W.P. No.2406 of 2023 also under the presumption that the Court could 12 be taken for a ride. Accordingly, CWP No.3444 of 2023 and CMP No.16109 of 2025 shall stand dismissed. 16. Resultantly, the present Review Petition also stands dismissed. Pending miscellaneous application(s) if any, are accordingly disposed off. COPC No.9 of 2024. 17. Resultantly, contempt petition filed as such by the same set of applicants/petitioners is not liable to be considered which does not show any cause of action itself as nothing has been shown to us that which order as such was violated. 18. Resultantly, keeping in view the above, the Contempt Petition is disposed off alongwith pending application(s) if any. We restrain oneself’s from imposing exemplary costs on the petitioners/applicants and direct the State to take necessary steps for regularization of the cremation site as per the proposal of the Municipal Corporation, Shimla on 07.10.2021 (Annexure P-1). (G.S. Sandhawalia) Chief Justice (Ajay Mohan Goel) Judge 1st August, 2025 (munish thakur)