Raghubir vs Deputy Director of Consolidation and Others

Rakesh Sharma, J.—Heard learned Counsel for the petitioner and learned Standing Counsel for the respondent No. 1.

The petitioner has assailed the order dated 7.11.2009 passed by Deputy Director of Consolidation, Hardoi, ordering for maintaining the status quo over the land in dispute till the disposal of a recall application preferred by respondents No. 2 to 5. A judgment was delivered by DDC on 9.3.2009. Shiv Raj and Ors. filed an application before the DDC on 26.10.2009 indicating therein serious allegations that one impersonator had appeared in the court giving the impersonation that he was Shiv Raj infact this impersonator was one Raghuveer and the order dated 9.3.2009 was obtained after perpetrating fraud in the court. The DDC had entertained the? application and passed the interim order.

Learned Counsel for the petitioner has assailed the order highlighting the observations made by this Court rendered in Smt. Shivraji and Ors. v. DDC, Allahabad and Ors. reported in 1998 R.R. 215 and stated that DDC ought not to have entertain the application and passed interim order. He had no power to review his earlier order. Learned Counsel for the petitioner has also shown the provisions contained in Section 4 of C.H. Act.

I have heard learned Counsel for the petitioner and perused the impugned order.

It is a case where a party had approached the court of Deputy Director of Consolidation stating in so many words that one impersonator Raghuveer had put in appearance before the court. The petitioner did not put in appearance before the court and in fact an ex-parte order was passed on 9.3.2009. Fraud was committed on the court and the matter has to be heard after giving opportunity of hearing to the aggrieved party. In the present case the impugned order is in the form of an interim order. The recall application is yet to be disposed of . The petitioner is yet to be called upon and heard. It is not a case where order has been altered or reversed, as is evident from the facts and circumstances of the case and the order passed itself shows that the DDC has yet to take decision on the application submitted by one Shivraj. It is only after hearing the parties, the DDC may alter or reverse the judgment dated 9.3.2009 or declined to do so. When such allegations as have been indicated in the application dated 26.10.2009 has been raised, any court of law or concerned Judicial Authority may exercise its discretion and hear the parties. As far as granting of interim order is concerned, equity demanded that status quo over the land in dispute be maintained subject to final disposal of the application.

It is settled proposition of law that where an applicant gets an order/ office by making misrepresentation or playing fraud upon the competent Authority, such order cannot be sustained in the eyes of law. "Fraud avoids all judicial acts ecclesiastical or temporal." S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, In Lazarus Estate Ltd. v. Besalay 1956 All.E.R. 349, the Court observed without equivocation that "no judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for fraud unravels everything."

In Andhra Pradesh State Financial Corporation Vs. M/s. GAR Re-Rolling Mills and another, and State of Maharashtra and Others Vs. Prabhu, the Hon''ble Apex Court has observed that a writ Court, while exercising its equitable jurisdiction, should not act as to prevent perpetration of a legal fraud as the Courts are obliged to do justice by promotion of good faith. "Equity is, also, known to prevent the law from the crafty evasions and sub-letties invented to evade law."

In Smt. Shrisht Dhawan Vs. M/s. Shaw Brothers, it has been held as under:

Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct.

In United India Insurance Co. Ltd. Vs. Rajendra Singh and Others, the Apex Court observed that "Fraud and justice never dwell together" (fraus et jus nunquam cohabitant) and it is a pristine maxim which has never lost its temper over all these centuries.

The ratio laid down by the Hon''ble Supreme Court in various cases is that dishonesty should not be permitted to bear the fruit and benefit to the persons who played fraud or made misrepresentation and in such circumstances the Court should not perpetuate the fraud by entertaining the petitions on their behalf. In M. Bhaskaran v. Union of India and Ors. the Apex Court, after placing reliance upon and approving its earlier judgment in District Collector and Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and Another Vs. M. Tripura Sundari Devi, observed as under:

If by committing fraud any employment is obtained, the same cannot be permitted to be countenanced by a Court of Law as the employment secured by fraud renders it voidable at the option of the employer.

Similar view has been reiterated by the Apex Court in S. Pratap Singh Vs. The State of Punjab, Ram Chandra Singh Vs. Savitri Devi and Others, and Vice Chairman, Kendriya Vidyalaya Sangathan and Anr. v. Girdharilal Yadav : (2004) 6 SCC 325.

The Common Law doctrine of public policy can be enforced wherever an action affects/ offends public interest or where harmful result of permitting the injury to the public at large is evident.

More so, if initial action is not in consonance with law, the subsequent conduct of a party cannot sanctify the same. Subla Fundamento cedit opus"- a foundation being removed, the superstructure falls. A person having done wrong cannot take advantage of his own wrong and plead bar of any law to frustrate the lawful trial by a competent court. Nullus Commodum capere Potest De Injuria Sua Propria. (Vide Union of India and others Vs. Major General Madan Lal Yadav (Retd.), The violators of law cannot be permitted to urge that their offence cannot be subject matter of inquiry, trial or investigation. (Vide Lily Thomas, Vs. Union of India and Others,

No person can claim any right arising out of his wrong doing. (Juri Ex Injuria Non Oritur).

This Court also following the law laid down by the Hon''ble Apex Court has expressed similar views, in respect of the orders obtained and getting entries recorded in the revenue records by playing fraud, in the decisions reported in 2003 (52) ALR 185 , Virendra Kumar Gupta Vs. State of U.P. and Others, Virendra Kumar Gupta v. State of U.P. and Ors. and 2006 (100) RD 787, Rajveer and Ors. v. Sub Divisional Magistrate, Dadri, Gautam Buddh Nagar and Ors.

The law is well? settled even the Full Bench decision does not prohibits the Deputy Director of Consolidation or other consolidation authorities to give an opportunity of hearing to the parties and balance the equities right from the initial stage of an entertainment of application. It is still open for the petitioner to put-forth their submissions before the DDC to raise all these objections, which have been taken in this writ petition.

Accordingly, the writ petition appears to be premature . No case is made out. The petition is accordingly dismissed. However, it is observed that the DDC, Hardoi shall dispose of the application expeditiously by a reasoned and speaking order in accordance with law preferably within a period of three months from the date of production of certified copy of the order. The DDC shall take into account the submissions put-forth by the parties. It is made clear that this Court has not expressed any opinion on the merits of the case and it is open for the authority concerned to deal with the matter and pass appropriate order by taking independent decision with an open mind.