T.P.S. Chawla, C.J.

1. A petition under Article 226 of the Constitution was filed by M/s. Rajender Jaina Towers Private Limited. It sought various writs, directions or orders against the Delhi Development Authority. Mr. Rajender Jain, the Managing Director of M/s. Rajender Jaina Towers Private Limited, swore an affidavit in support of the petition. The petition was filed on 27th, September 1986. It came on for preliminary hearing before a Bench comprising Ms. Justice Leila Seth and myself on 29th September 1986. We issued a direction for the production of certain records by the Delhi Development Authority. We also made an interim order that the petitioner should not be dispossessed of the plot, subject-matter of the petition, till the next date. This interim order was continued from time-to-time.

2. In compliance with the direction, the record was produced by the Delhi Development Authority. Subsequently, an affidavit sworn by Miss Janak Juneja, Secretary of the Delhi Development Authority, was filed in answer to the petition. Although three opportunities were given to the petitioner to file an affidavit-in-rejoinder, no such affidavit was filed. On 1st April 1987, counsel for the petitioner said that he had considered the matter and did not wish to file an affidavit-in-rejoinder. Consequently, we proceeded to hear counsel for the parties on the record as stood.

3. As a result of the hearing, we were of the opinion that the petition was replete with false suggestions and suppression of the true facts. It appeared to us that the false suggestions were deliberately made, and the suppression of material facts was careful and calculated. For these reasons we dismissed the petition.

4. We further recorded that we thought this was a case in which the person who swore the affidavit in support of the petition, ought to be prosecuted for perjury. However, since we were not then sure of the legal position we held the matter over. On the next date, we requested Mr. M.L. Bhargava, Advocate, who had represented the Delhi Development Authority, to assist us in the matter. He has rendered us great assistance, and we are obliged to him.

5. On 26th May 1987, we formally ordered that Mr. Rajender Jain should show-cause why he should not be prosecuted for perjury. Thereafter, both parties filed further affidavits. The question now is whether a complaint for perjury should be made against Mr. Rajender Jain.

6. It is necessary for the present purpose to show how the case of the petitioner was pleaded. Paragraphs 4 to 8 of the petition need to be set out in full. They read as follows :

4. That there was a vacant plot bearing Municipal No. 20, Block No. 15-A, measuring about 220.93 sq. mts. at Ajmal Khan Road, Karol Bagh, New Delhi which the respondent Authority auctioned on 7th July, 1982. The petitioner Company participated in the said auction and was the highest bidder having made a bid of Rs. 7,76,000 for the said plot which was accepted and the petitioner accordingly paid a sum of Rs. 1,94,000 being 25% of the bid amount. The area where the plot in dispute is situate has many commercial establishments. To the knowledge of the petitioner the Zonal Plan also shows the area as residential-cum-commercial.

5. That the petitioner company carries on business as builders and promoters in the Union Territory of Delhi.

6. That after the highest bid of the petitioner was accepted by the respondent the balance amount of Rs. 5,82,000 besides a sum of Rs. 11 being cost of the preparation of the lease deed was demanded by the respondent from the petitioner vide its letter dated 16th July, 1982, a copy of which is being annexed herewith as Annexure A. It is submitted that even at the time of auction the officials of the Respondent auctioned the plot knew about the petitioner being a Company engaged in the business as builders and promoters. The petitioner was also given to understand that in the area of Ajmal Khan Road, the parts of the buildings on the lower floors are allowed to be used for non-residential purposes by the authorities. Even otherwise, as already submitted, the entire area is being used for commercial activities as well. This is why though it was a small plot measuring only about 222 sq. mt. yet it fetched a price of Rs. 7,76,000 which is abnormally high for a purely residential plot of this much size.

7. That the petitioner deposited the entire amount as demanded by the respondent and on depositing the said amount possession of the plot was handed over to the petitioner on 12th November, 1982.

8. That since the respondent did not have the draft of the lease deed to be drawn and executed between the parties the petitioner was permitted to commence construction on the said plot and the petitioner company thus applied for getting the plans sanctioned which were sanctioned on 10th January, 1983. The petitioner raised construction and completed the construction and applied to the Municipal Corporation of Delhi for obtaining the completion/occupancy certificate which was also granted on 10th July, 1984. The said certificate gave details of accommodation. It is submitted that the completion/occupancy certificate is granted by the Municipal Corporation of Delhi only if the construction is found in order and in accordance with the building bye-laws. In the present case the completion certificate having been granted no objection could be raised subsequently by the authorities regarding the nature of construction or the user thereof either by the petitioners or other persons inducted in the premises. A photo copy of the completion certificate is being filed herewith as Annexure B, The said certificate is in the form of printed proforma. However, an English translation of the language of the certificate is also being filed herewith as Annexure B-l.

7. It is too plain that the entire draft of these paragraphs is calculated to give the impression that Mr. Rajender Jain understood, and was led to believe, that the plot was meant for commercial purposes, and was surprised when, subsequently, in the lease deed he found it stated that the plot could be used only for residential purposes. If this was not the purpose of these paragraphs, then they served no purpose at all. For, otherwise, Mr. Rajender Jain could simply have said that he knew that the plot could be used only for commercial or residential purposes, whichever it was.

8. How else was it relevant or necessary to state, in paragraph 4, that there were many commercial establishments in the area where the plot in dispute is situate, and, that, to the knowledge of the petitioner, the zonal plan also shows the area as residential-cum-commercial Or, to state, in paragraph 5, that the petitioner company carries on business as builders and promoters And, likewise, the statements in paragraph 6, that even at the time of the auction the officials of the respondent who conducted the auction knew that the petitioner was a company engaged in the building business, and that in the area of Ajmal Khan Road, the parts of the buildings on the lower floors are allowed to be used for non-residential purposes by the authorities, and that the entire area is being used for commercial activities as well, and that is why though it was a small plot measuring only 222 sq. mtrs. yet it fetched a high price of Rs. 7,76,000 which is abnormally high for a purely residential plot of such a size. All these statements were clearly intended to show that the officers of the respondent knew that the petitioner was buying the plot for commercial purposes, as was the intention of the petitioner. In other words, to establish the intention of the parties. The statements in paragraph 8 carry the same sense.

9. Then, paragraph 9 reads as follows:

9. That, however, a formal lease deed was subsequently drawn on 20th February, 1985 which was registered in the office of the Sub-Registrar on 21st February, 1985. A copy of the lease deed is also annexed herewith as Annexure C. The lease deed is again in an already set proforma by the respondent and the petition did not have any say in the matter. It was signed in the ordinary course at the instance of the respondent. The fact that the terms in the lease deed are incorporated in a routine way is apparent from the contents therein like paras 11(3), 11(11) and 11(12). However, clause 11(13) of the said lease deed reads as under:

The Lessee shall not without the written consent of the Lessor carry on, or permit to be carried on, on the residential plot or in any building thereon any trade or business whatsoever or use the same or permit the same to be used for any purpose other than that of private dwelling or do or suffer to be done therein, any act or thing whatsoever which in the opinion of the Lessor may be a nuisance, annoyance or disturbance to the Lessor and persons, living in the neighbourhood.

10. The rest of this paragraph quotes clause III of the lease deed and is not presently relevant. Again, the drift is the same. The word however, at the beginning creates the impression that the lease deed did not conform to what was agreed between the parties. It was said to be a set proforma in which the terms were incorporated in a routine way, and the petitioner did not have any say in the matter and signed it in the ordinary course at the instance of the respondent. These pleas, by implication, if not directly assailed the lease deed.

11. This, then, was how the case was presented on behalf of the petitioner. Certainly my understanding of the petition, when it came for preliminary hearing on 29th September 1986, was that the petitioner was aggrieved by the fact that the lease deed did not conform to the intention of the parties at the time of the auction, that the plot could be used for commercial purposes. It is true that in paragraph 9 of the petition, clause II (13) of the lease deed is quoted, and it shows that what was sold was a residential plot which could not be used for other purposes without the written consent of the lessor. But, the clause was quoted in a context making a grievance that it did not represent the real intention of the parties.

12. Counsel for the petitioner referred to the order which was made on 29th September, 1986 requiring the Delhi Development Authority to produce the record containing the reasons why the request of the petitioners to allow change of user on payment of compounding fee (was) not being acceded to. He said, this showed that the Bench was fully alive to the fact that the plot could be used only for residential purposes, for that is why it required to know why the change of user was not being permitted on payment of compounding fee. This is not correct. So far as I recall, it was represented to us that in the case of many other buildings in the same area, change of user had been permitted on payment of compounding fee, and the petitioner was the victim of discrimination. Therefore, without going into any other aspect of the case, we sought an answer from the Delhi Development Authority on this point.

13. It was, also, argued that from the lease deed and some other documents annexed to the petition, it was apparent that the plot could be used only for residential purposes, and it was not possible for the Bench to have been misled. This argument places the impossible burden on Judge of reading every document annexed to the petition to get at the true facts. Surely, the whole purpose of having a pleading or a petition is that all the material facts should be presented to the Court in a comprehensive and lucid manner at one place. Otherwise, no purpose is served in having a pleading or a petition at all. In any case, the fact that some of the documents annexed to the petition showed that the plot could only be used for residential purposes, did not nullify the plea, implied in the petition, that it had been sold on the understanding that it could be used for commercial purposes.

14. Now, the true facts which have emerged, as a result of seeing the record and from the affidavit sworn by the Secretary of the Delhi Development Authority, are as follows. When the auction was held on 7th July 1982, Mr. Rajender Jain signed the auction notice, a copy of the terms and conditions of the auction and an application as the highest bidder for the purchase of the perpetual lease hold rights in the plot. In each of these documents, it is clearly stated that what was being sold was a residential plot. The terms of the proposed lease stipulated that it could not be used for any other purpose. So, there was no question of Mr. Rajender Jain being under any misapprehension. Furthermore, before the building plans were submitted to the Municipal Corporation of Delhi, a No Objection Certificate had to be obtained from the Delhi Development Authority. In this certificate, also, it is clearly indicated that a residential building can be constructed on the said plot.

15. However, by some means or other, when the building was completed, the petitioner was able to obtain a completion certificate in which two additions have been made to the printed matter. In the body, it is added that the Building is for commercial purposes. At the top, the addition is: Certified that building can be used for commercial purpose. We have no objection for the same. Curiously, these additions appear in the translation of the completion certificate annexed to the petition, but not in the photocopy of the original in Hindi and Urdu which is also annexed. We have not thought it necessary to inquire into this mystery because we were told that an investigation is already being conducted by the police.

16. It is not without significance that during the Budget session of the Rajya Sabha in 1983-84, that is, even before the building was constructed, a number of questions were asked suggesting that M/s. Rajender Jaina Towers Private Limited were going to build a commercial complex/shopping centre on the plot, and had, in fact, collected large sums of money from the public. The Government in its reply informed the Rajya Sabha that the building plans submitted by the petitioner to the Municipal Corporation of Delhi had been sanctioned for the construction of residential premises only. The Government further gave an assurance that there would be no deviation from the sanctioned plan. These facts are mentioned in the affidavit sworn by the Secretary of the Delhi Development Authority.

17. I think, it is too obvious that the petitioner purchased the plot knowing full well that it could be used only for residential purposes. But, right from the start, the petitioner had decided to violate that term of the auction, and construct commercial premises. The details of what was constructed are noted on the back of the completion certificate. The whole building consists of shop or offices on every floor, including the basement. The manner in which the petition was drafted was part of the strategy to defeat or overcome the Delhi Development Authority. It was a gross attempt to misuse the process of the Court.

18. Repeatedly, we asked counsel for the petitioner why it had not been stated in the petition that, when the plot was sold, it was known to the petitioner that it could be used only for residential purposes. And, why, when such was the fact, it was necessary to make the various statements found in paragraphs 4 to 9 of the petition. To these questions the only answer we got was that every counsel had his own style of drafting. In the end, perhaps unwittingly, counsel for the petitioner said that if it had been stated in the petition that it was known that the plot could be used only for residential purposes, the petition would have been dismissed without more a do. That lets the cat out of the bag, and proves, that this is a glaring case of deliberate suppression of facts.

19. But, the question which has troubled us is whether mere suppression of facts can amount to perjury. In Ratansi Daya vs. Emperor, A.I.R. 1916 Sind 70(2), it was held that to constitute an offence under Section 193 of the Indian Penal Code:

There must be a statement of fact which is false. It is no offence if the fact stated is true but some circumstance is suppressed, with the result that a wrong inference may be deduced.

That this was the correct legal position was frankly admitted by Mr. M.L. Bhargava, after studying the point. So, it seems, that howsoever guilty of suppression Mr. Rajender Jain may be, it will not be possible to secure a conviction against him for perjury on the basis of paragraph 4 to 9 of the petition. Clearly, no purpose will be served by launching a prosecution which is likely to fail.

20. The same seems to be the position with regard to another set of facts which have been suppressed. In paragraph 12 of the petition it is casually stated: The petitioner was even compelled to file a suit for injunction in the Court of the Senior Sub-Judge, Delhi, which has since been withdrawn. Nothing more is said. The full facts are narrated in the affidavit sworn by the Secretary of the Delhi Development Authority. The suit was filed by the petitioner on 19th July 1986 for restraining the Delhi Development Authority from cancelling the lease deed and re-entering upon the plot. An application was moved alongside for an interim injunction to the like effect. On 25th July 1986, the Court refused to grant an injunction. The petitioner filed an appeal against that order. In the appeal, the petitioner again sought an interim injunction. On 1st August 1986, the Senior Sub-Judge granted stay of dispossession subject to the condition that the petitioner would use the premises only for residential purposes and no other. The appeal was withdrawn on 29th September 1986, obviously because the purpose of the petitioner had not been achieved. It is interesting to note that the appeal was withdrawn two days after the petition had been filed in this Court on 27th September 1986, and an interim order obtained.

21. We asked counsel for the petitioner why, when the suit had been mentioned in the petition, there was no reference to the appeal, and, also, the application for an interim injunction in both those proceedings. The only answer given was that the draftsman of the petition had not thought them to be relevant. I think, this answer is wholly untenable. If reference to the suit was thought to be relevant, though even that seems to have been done only by way of an aside, it must follow that a reference to the appeal arising out of an order made in that suit must also be relevant. Even more so the applications for an interim injunction and the orders made thereon. Again, I think, this was a deliberate suppression of material facts. But, since suppression of facts does not amount to perjury, here, too, no purpose will be served in launching a prosecution.

22. I, now turn to paragraph 11 of the petition. The paragraph reads as follows:

11. That the petitioner has spent a sum of about Rs. 22 lakhs over the construction and thus they have spent Rs. 30 lakns on the land and the building in question. The petitioner has not used or permitted to be used the said building in any manner contrary to the terms imposed by either the respondent or the Municipal Corporation of Delhi. In fact, the building is not being used at all at present. The petitioner has further taken care of giving portions in the basement and ground floor of the property for the authorised user only subject to the permission to change the user to be obtained from the local authorities and thus the petitioner itself has neither used nor permitted to be used any part of the building for a purpose other than for which the sanction was granted. The upper floors are, however, constructed in a manner so as to use them for residential purposes.

The circumlocution in this paragraph is too apparent. Nevertheless, the second sentence clearly says that The petitioner has not used or permitted to be used the said building in any manner contrary to the terms imposed by......the respondent........., which must mean it is not being used for commercial purposes. The third sentence is unequivocal: In fact, the building is not being used at all at present. The fourth is calculated to confuse the position. It starts by saying that the petitioner has taken care of giving portions in the basement and ground floor of the property for the authorised user only....... That implies that those portions of the building have been given for use for residential purposes (the authorised user). However, the second half of the sentence proceeds: ......thus the petitioner itself has neither used nor permitted to be used any part of the building for a purpose other than for which the sanction was granted. The sanction presumably refers to the completion certificate granted by the Municipal Corporation of Delhi in which, as I have already mentioned, additions have been made to the effect that the building can be used for commercial purposes. So, the implication here is the opposite. The last sentence is more definite: The upper floors are, however, constructed in a manner so as to use them for residential purposes.

23. The manner in which the building was being used is manifest from an affidavit sworn by Mr. Sunil Kumar Mathur, a Junior Engineer employed in the Delhi Development Authority. He says, he inspected the building on 6th May 1986. He found that on the first floor, one Mr. Pramod Kumar was carrying on the business of making name plates and Colour Kodak Photo Films in shop No. R.P.B.201 under the name Chiprinco. On the same floor, in shop No. R.P.B.202, a Dr. Verma was running a homopathic clinic. He had a consultation room and a medicine counter in the premises. On the second floor, a shop was in the possession of Bhagwan Dass & Co. On 1st October, 1986, Mr. Sunil Kumar went to the building, again, in order to take possession of the plot, but did not do so because of the order of stay issued by this Court. On this occasion, he found that a part of the basement was being used as a retail shop by Raja Brothers. He inspected the building again on 19th February 1987. He observed that Dr. Verma and Raja Brothers were there as before. In addition, he found that, on the second floor, there was the office of Techno-Consultancy Service being run by Shri Iqbal Singh Jadgogra.

24. In his answer to this affidavit, Mr. Rajender Jain says that Shri Pramod Kumar had taken shop No. R.P.B. 201 on licence in March 1986 for about two months. However, since he started running a business in the shop, the petitioner got it vacated in June 1986, and, thereafter, has retained possession. It was not being used in September 1986 when the petition was filed in this Court. Dr. Verma, according to Mr. Rajender Jain, was given the shop on licence to turn a charitable clinic. But, he was told that he would be entitled to run a clinic only after permission had been obtained from the Delhi Development Authority. In any case, Dr. Verma was not running his clinic regularly and it was lying closed in September 1987. Mr. Rajender Jain denies that any shop was ever given to Bhagwan Dass & Co. He also denies that Raja Brothers were running a shop of readymade garments either in October 1986 or February 1987. He admits that a portion of the second floors was given on licence to Mr. Iqbal Singh Jagdogra, but says he was informed specifically to use it only for purposes allowed under law, and in case it was to be used for any other purposes, necessary permission was to be sought. He says, he is not aware whether the said portion was being used as the office of Techno-Consultancy Service in February 1987, but it was not in use in September 1986 when the petition was filed in this Court.

25. It will be seen that despite all his evasiveness, Mr. Rajender Jain had to admit that portions of the building were being given on licence from time-to-time. At the very least, Dr. Verma was admittedly in possession of a shop when the petition was filed in September 1986. It is incredible that he was paying the licence fee but not using the premises. As regards the other persons mentioned by Mr. Sunil Kumar Mathur, I find no reason to doubt what he was stated in his affidavit. Prima facie, it proves that the statement in the third sentence of paragraph 11 of the petition, that the building is not being used at all at present was false. So, also, was the statement in the second sentence that The petitioner has not used or permitted to be used the said building in any manner contrary to the terms imposed by... the respondent because clearly some of the shops had been or were being used for commercial purposes. The part of the fourth sentence which says The petitioner has taken care of giving portions in the basement and the ground floor of the property for the authorised user only... was equally untrue.

26. The last sentence of paragraph 11 is shown to be false by the details of the accommodation noted on the back of the completion certificate. It is apparent there from that the upper floors of the building, like the rest, comprised offices and shops. Therefore, it was not true that they had been constructed in a manner so as to use them for residential purposes.

27. All the statements in paragraph 11, to which I have referred, were material for the purpose of taking a decision in the case. As I have tried to show, they were deliberately made and carefully worded. Their object was to mislead and overreach the Court. The perjury was daring and atrocious. Probably, Mr. Rajender Jain thought it was worth taking the risk because the Courts are so reluctant to prosecute for perjruy. That is the general impression which has caused perjury to become so rampant in our Courts and resulted in vexatious litigation. It is clearly expedient in the interests of justice, that Mr. Rajender Jain be prosecuted for the statements made in paragraph 11 of the petition, which he has incorporated by reference in his affidavit.

28. Accordingly, I would order the Registrar of this Court to make a complaint in writing against Mr. Rajender Jain son of Shri Tek Chand Jain, residing at Sagar Apartment, Tilak Marg, New Delhi, for having committed offences under Sections 191,192 and 193 of the Indian Penal Code to the Magistrate having jurisdiction.

29. Mr. Rajender Jain will furnish a personal bond in the sum of Rs. 10,000 to the satisfaction of the Registrar of this Court today, conditioned that he will appear before the Additional Chief Metropolitan Magistrate, New Delhi, on 14th September 1987, to take further order. If Mr. Rajender Jain does not furnish a personal bond, he will be taken into custody and forwarded to the Additional Chief Metropolitan Magistrate for being dealt with in accordance with law.