Smt. Ahhilesh Kumari vs U.P. Avas Evam Vikas Parishad

Shamsher Bahadur Singh, J.—Counter and rejoinder affidavits have been exchanged between the parties.

Heard Sri Agendra Sinha, learned counsel for the petitioners and Sri Virendra Singh, learned counsel for the respondents.

By means of present writ petition the petitioners pray for a writ of certiorari to quash the impugned order dated 26.02.2004 passed by opposite party no. 4 as contained in Annexure No. 1 and 2 to the writ petition and further pray for writ of mandamus commanding the respondent no. 5 not to implement the impugned order and not to interfere in the peaceful possession of the petitioners over the houses in question.

Factual matrix of petition is as under:

That House No. 11/601, Indira Nagar, Lucknow was allotted in favour of petitioner no. 1 in the year 1997 and House No. 11/730, Indira Nagar, Lucknow was allotted in favour of petitioner no. 2 in the year 1996. The possession of houses were delivered to the petitioners and sale deeds were executed respectively on 23.06.1999 and 23.07.1998 after depositing cost of houses. The allotment of aforesaid houses have been cancelled by the impugned order dated 26.02.2004 and the petitioners have been directed to hand over the possession of houses in question within 15 days without any opportunity of hearing and following the principles of natural justice.

As per impugned order dated 26.02.2004 contained in Annexure No. 1 to the writ petition, the house of petitioner no. 1 was earlier allotted to Sri Santosh Kumar Vaish S/o Vishambhar Dayal Vaish Resident of House No. 471, III Lane, Nisatganj, Lucknow and after his death the same was allotted in favour of petitioner no. 1. In an application supported with affidavit, the petitioner no. 1 claimed herself to be real sister and only legal heir of original allottee, Santosh Kumar Vaish. Contrary to above the case of petitioner no. 1 is that she never submitted any application, affidavit and death certificate of Santosh Kumar Vaish for transfer of house in her favour. Similarly, the House No. 11/730 was allotted to Ram Naresh vide order dated 03.02.1989 and on death of Ram Naresh, petitioner no. 2 submitted an application, affidavit along with death certificate for allotment of house in her favour on the basis of blood relation and sole legal heir.

Both the petitioners claimed that when sale deeds are in force and have not been cancelled through the competent civil court, the opposite party no. 4 has no jurisdiction to direct the petitioners to hand over the possession and they are estopped by way of principle of promisory estoppel to cancel the allotment of houses.

In counter affidavit filed on behalf of opposite parties the case of petitioners have been refuted. It has been very categorically averted by opposite parties in counter affidavit that both petitioners are not original allottees and both houses were allotted in favour of petitioners separately on their presentation of an application, affidavit along with death certificates of original allottees claiming blood relationship and stating themselves as sole legal heir of deceased allottees. On the recommendation of Lokayukta a vigilance inquiry was made and the papers were found forged. Therefore, F.I.R. for offences punishable under Sections 467, 468, 471, 420, 120B I.P.C. and Section 13(I) D read with Section 13(2) of Prevention of Corruption Act, was lodged at Police Station Ghazipur, District Lucknow.

The Uttar Pradesh Avas Evam Vikas Parishad, Lucknow (hereinafter referred to as ''Parishad'') deals with allotment of houses and plots and thereafter transfer in name of others under the Rules and provisions given in U.P. AVAS VIKAS BHUKHAND KE PANJIKARAN EVAM SAMBANDHA VINIYAMAN, 1979 as amended upto June, 1986, known as ''Regulation, 1979''. Rule 42 of Regulation, 1979 deals with transfer of registration/allotment of any plot/house in favour of other person who is legal heir of any duly registered/allotted person in case of his death before the registration of sale deed. Rule 45 (6) of Regulation, 1979 also provides right to the Parishad to take action against those persons who give wrong information or conceal any material fact from the Parishad, while making an application for transfer on the ground of death and blood relationship. The definition of "Blood Relations" finds place in Rule 3(SHA) of above Regulation and only father-mother, son-daughter, brother-sister, and grand sons-grand daughters are included in the said definition.

In view of above the petitioners were duty bound to submit original allotment letter in their favour, in case they were original allottees of the houses. They have failed to produce original allotment letters, therefore, presumption goes against them and it can be very safely observed that the original registration/allotment has been withheld by the petitioners for ulterior motive and in the given facts and circumstances it can be said that there is no original registration/allotment in the names of petitioners. Whether petitioners have not submitted any application, affidavit and death certificate before the Parishad for transfer of houses in their favour on the basis of blood relationship and sole legal heir, is disputed question of fact.

The learned counsel for petitioners has submitted that after execution of sale deed and delivery of possession in their favour, the Parishad was not competent to cancel the allotment/sale deed already made and executed in favour of petitioners. Only, the civil court is competent and till the sale deeds have not cancelled from the competent court, therefore, the Parishad has no right to interfere in possession of petitioners and to give direction for delivery of possession.

Per contra, on behalf of Parishad, it has been vehemently argued that the petitioners have misrepresented their selves as sole legal representative of original allottees and committed fraud in getting the houses allotted in their favour. On the basis of false averment in application as well as in affidavit. Once the fraud has been detected and it has been found by the Investigating Agency that the petitioners are not blood relation of original allottees, the Parishad has every right to cancel the allotment as well as sale deed and to demand back the possession.

In view of above, as complete documents pertaining to registration/allotment as original allottees have not been produced before this Court along with writ petition, therefore, this Court is not inclined to observe or record anything adverse to the interest of petitioners but in the background of facts of case in hand narration of certain observations made by the Hon''ble Apex Court in following decisions appears to be an eye opener.

In the case of State of Andhra Pradesh v. T. Surya Chandra Rao AIR 2005 SC 3110 the Hon''ble Supreme Court has held as follows :

"by fraud is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from the ill will towards the other is immaterial. The expression ''fraud'' involves to elements, deceit and injury to the person deceived. Injury is something other than economic loss, i.e. deprivation of property, whether movable or immovable or of money and it will include any harm whatsoever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary. A benefit for advantage to the deceiver, almost cause loss or detriment to the deceived. Even in those cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied." (Para 7)

In the same judgment, referring to a previous judgment in the case of S.P. Chengalvaraya Naidu v. Jagannath; [1994 (1) SCC1], it was further held that" a ''fraud'' is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is deception in order to gain by another''s loss. It is a cheating intended to get an advantages". (para 8)

The Hon''ble Apex Court in the case of S.P. Chengalvaraya Naidu v. Jagannath; [1994 (1) SCC 1] has further held that -

"......the short question was whether in the facts and circumstances in this case, Jagannath obtained the preliminary decree by playing fraud on the Court...... The principle of finality of litigation cannot be pressed to the extent of such an obsurdity that it becomes an engine of fraud in the hand of dishonest litigants. The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. We are constrained to say that more often than not, process of the Court is being abused. Property grabbers, tax evaders, bank loan dodgers and other unscrupulous persons from all walks of life find the Court process, a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation (para 7)".

The Hon''ble Apex Court in the said judgment, has further held that -

"A litigant, who approaches to Court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital documents in order to gain advantage on the other side than he would be guilty of playing fraud on the Court as well as on the opposite party (para 8)"

It is very well settled position of law that fraud vitiates every solemn act. Fraud and justice never dwell together and fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. Suppression of material document would also amount to a fraud on the Court. Reference may be made to the decision of Gowri Shanker v. Joshi Amba Shanker Family Trust; 1996 (3) SCC and S.P. Chengalvaraya Naidu v. Jagannath; [1994 (1) SCC 1] (supra). The Hon''ble Supreme Court in the case of Ram Chandra Singh v. Savitri Singh; 2003 (8) SCC 319, referring to large number of judicial pronouncement has summarized the entire legal position on the subject and has held that -

"An act of fraud is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the other in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous (para 22) ..... In the same decision referring to an earlier decision given in the case of Indian Bank v. Satyam fibres India Pvt. Ltd. (1996) 5 SCC 550, it was further held that "the judicial in India also possesses inherent power, specially, under Section 151 CPC to recall its judgment or order if it is obtained by fraud on Court ..... Inherent powers are powers, are resident in all Courts especially of superior jurisdiction. These power spring not from legislation but from the nature and constitution of the tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect it s officers from indignity and wrong to punish unseemly behaviour. This power is necessary for the orderly administration of the Courts business."

As the petitioners have not come with clean hand along with original registration and allotment letters in their favour, therefore, the equity is not in their favour. Prima facie, on the basis of vigilance inquiry impugned orders have been passed. On the basis of averments made in the short counter affidavit as well as counter affidavit, fraud appears to have been committed which vitiates every solemn act and justice never dwell together.

In view of above discussion, the petition lacks merit and deserves to be dismissed.

Accordingly, the petition is dismissed. Interim order, if any, stands vacated.