Virendra Kumar Gupta v. State Of U.P And Others

M. Katju, J.:— This petition discloses a great fraud perpetrated by the answering respondents in collusion with the authorities.

2. This writ petition has been filed for a writ of certiorari to quash the impugned order dated 24.11.2001 Annexure-1 and for a mandamus directing the respondent Nos. 1 to 3 to forthwith take back possession of the property in dispute from respondent Nos. 8 to 10. It is further prayed that a C.B.I enquiry be directed against the respondent Nos. 2, 3 and 7 to the writ petition. Heard Sri Deepak Jaiswal learned counsel for the petitioner and Sri V.B Singh learned counsel for the respondents.

3. The property in dispute is plot No. 56, area 1 bigha 5 Biswa situate in the city of Mirzapur which belonged to the late Bhairav Prasad Jaiswal who donated the said land for the purpose of an Eye Hospital by executing a will on 7.11.1954 by which he created a trust for the said purpose in which the District Magistrate and one Anil Banerjee were the trustees. After the death of Bhairav Prasad Jaiswal one of his relatives applied for a letter of administration in Testamentary Case No. 3/71 (converted to Suit No. 1/72). In this case this Court by its order dated 25.9.1973 issued letters of administration in favour of the Administrator General, U.P (respondent No. 4 in this petition) and the Administrator General took possession of the property in question.

4. Section 51 of the Administrators General Act, 1963 provides':

“All assets in the charge of the Administrator General which have been in his custody for a period of twelve years or upwards, whether before or after the commencement of this Act, without any application for payment thereof having been made and granted by him shall be transferred, in the prescribed manner, to the account and credit of the Government:

Provided that this section shall not authorise the transfer of any such assets as aforesaid, if any suit or proceeding is pending in respect thereof in any Court.

In view of the above provision the property which came in the custody of the Administrator General in the year 1973 under the letters of administration granted by this Court stood automatically transferred to the State Government in the year 1985 on the completion of 12 years as provided in Section 51. Hence it is alleged that the Administrator General ceased to have any right of administration in the said property after the year 1985.

5. It appears that on 17.3.1992 the Administrator General executed a lease deed for 90 years in favour of the respondent Nos. 8 to 10 and gave them possession. It is alleged this was done without any authority as the Administrator General has no right to do so after the year 1985.

6. The petitioner filed a Public Interest Litigation being Writ No. 24269 of 1994, Virendra Kumar Gupta v. D.M, Mirzapur, and a Bench of this Court passed an order on 28.7.1994 directing the A.D.M Mirzapur to take possession of the disputed land from respondent Nos. 8 to 10 in compliance of the letter of the State Government dated 4.5.1994 A true copy of the High Court order dated 28.7.1994 is Annexure-2 to the writ petition.

7. On 3.6.1995 possession of the land in dispute was taken by the D.M, Mirzapur from respondent Nos. 8 to 10 and an F.I.R was lodged against them on 16.4.1997 On 24.1.2000 the petitioner filed a Misc. Application in Writ No. 24269 of 1994 informing the Court that possession has been taken by the D.M pursuant to the order of the Court dated 28.7.1994 Annexure-2 to the writ petition. Accordingly this Court passed an order dated 17.4.2000 vide Annexure-7 to the writ petition stating that in view of the averments made in the affidavit of the petitioner Virendra Kumar Gupta, the writ petition is dismissed as infructuous.

8. It is alleged that taking the benefit of the word ‘dismissed’ in the order of the Court dated 17.4.2000 the respondent Nos. 8 to 10 procured the Impugned order dated 24.11.2001 Annexure-1 and on that basis again obtained possession of the land in dispute. Hence, this writ petition has been filed.

9. Learned counsel for the petitioner submitted that the plot No. 56 of area 1 bigha 5 biswa is in Mirzapur city and is having valuation of over Rs. 80 lakhs. The said land was donated by late Bhairo Prasad Jaiswal for the construction of an Eye Hospital on that plot for the public good and accordingly he created a trust through a Will. In view of Section 51 of the Administrator General Act, 1963 the property stood automatically transferred in the year 1985 to the State Government, and hence the Administrator General had no right or authority in the year 1992 to execute a lease in favour of the respondent Nos. 8 to 10 and hand over possession to the said respondents.

10. It is alleged that the City Magistrate, Mirzapur who passed the impugned order-dated 24.11.2001 Annexure-1 to the writ petition has misinterpreted the order of the Division Bench dated 17.4.2000 Annexure-7 to the writ petition. The Court on 17.4.2000 only dismissed the writ petition as infructuous since possession had been taken by the D.M, Mirzapur in pursuance of the order of the Division Bench of this Court dated 28.7.1994 Annexure-2 to the writ petition and the letter of the State Government dated 4.5.1994 However, the City Magistrate apparently treated the order dated 24.11.2001 as if the writ petition has been dismissed on merits, which was not correct.

11. A counter-affidavit has been filed and we have perused the same. It is alleged in paragraph 2 of the same that the writ petition is not maintainable as in respect of the same property the Administrator General has moved an application before the Company Judge of this Court which has been registered as Testamentary Case No. 5 of 2003. In that case this Court on 29.1.2003 passed the following order:

“Issue notice to the Collector, Mirzapur. He need not appear personally, but may appear through counsel to show cause why the following interim order be not made absolute on the ground that the property has not yet been transferred in the ‘prescribed manner’ to the account and credit of the Government under Section 51 of the Administrators General Act, 1963.

In the meantime the Collector, Mirzapur is restrained from taking possession of any properly of late Sri Bhairav Prasad Jaiswal. List this case along with Testamentary Case No. 4 of 2003 in Chambers on 12.3.2003”

12. It is alleged that the Testamentary Case numbered 5 of 2003 is still pending in this Court. In paragraph 3 of the counter-affidavit it is alleged that the petitioner is abusing the process of this Court as he is personally interested to grab the property and he has filed a civil suit. He had earlier filed a Writ Petition No. 24269 of 1994 which has been dismissed by the Court. It is further alleged that the petitioner has no locus standi in the matter, and the Administrator General, U.P had filed Suit No. 289 of 1985. Administrator General v. Ram Dhari Gupta in the Court of Munsif-V, Mirzapur. The relief sought in the said suit was for permanent injunction restraining Ram Dhari Gupta from interfering in the property in dispute. Ram Dhari Gupta had filed a written statement admitting that he had no concern with the property. The suit was decreed ex-parte by order dated 12.3.1987 by Addl. Munsif Magistrate. V, Mirzapur vide Annexure-C.A-1 to the counter-affidavit. A complaint was filed before the D.M, Mirzapur by the Administrator General on 7.2.1992 against the petitioner and others vide Annexure-C.A-2.

13. It is alleged in paragraph 4 of the counter-affidavit that after the death of Bhairav Prasad Jaiswal who died issue-less, the Administrator General moved an application before this Court for Issuance of letter of administration. Some alleged relatives of Bhairav Prasad Jaiswal also moved applications for letters of administration. The application of the Administrator General was numbered as Testamentary Case No. 1/72 and the application of the relatives was numbered 3/71. Since the matter was contested, the Testamentary Case No. 3/71 was converted into Suit No. 2/71, and Testamentary Case No. 1/72 moved by the Administrator General was converted into Suit No. 1/72 and both suits were tried together. On 25.9.1973, this Court issued letters of administration in favour of the Administrator General, and that judgment has become final. Accordingly the Administrator General took possession of the property in dispute. Some relatives and the petitioner tried to encroach on the land and hence the Administrator General filed Suit No. 389 of 1986 in the Court of Munsif, Mirzapur against Ram Dhari Gupta and others, details of which has already been given above.

14. It is alleged in the paragraph 8 of the counter-affidavit that to avoid encroachment and interference of the interested persons who wanted to grab the property including the petitioner, the Administrator General has leased the property in favour of the answering respondent. It is alleged that the D.M, Mirzapur took illegal action in the matter under political pressure and took back possession of the property. However, subsequently, the respondents were given possession again in pursuance of the interim order passed by the Civil Judge in Suit No. 87 of 1985 wherein an order of status-quo was passed in favour of the answering respondents vide Annexure-C.A-3 to the counter-affidavit and the said respondents are still in possession of the property in dispute. It is alleged that respondent No. 7 has not given any Instruction verbally or otherwise in favour of the answering respondents. It is alleged that Sections 10 and 51 of the Administrator General Act does not apply in the present case. The High Court has Issued letters of administration to the Administrator General, and thus the State Government does not come into the picture at all.

15. It is alleged in para 24 of the writ petition that the judgment of the Civil Judge has become final. The dispute in regard to the same property is also pending in Suit No. 27 of 1995 filed by the answering respondents, and the writ petitioner has moved an application for impleadment in the said suit vide Annexure-IV to counter-affidavit. Hence, it is alleged that the petitioner is pursuing his alternative remedy.

16. A counter-affidavit has also been filed by the City Magistrate, Mirzapur on behalf of the respondent Nos. 1, 2, 3 and 6.

17. In para 5 of the counter-affidavit, it is admitted that the property in dispute has been transferred to respondent Nos. 8 to 10 for Rs. 50,000. In para 12 it is stated that the U.P Government had taken possession of the property in dispute on 3.6.1996 However, after the dismissal of Writ Petition No. 24269 of 1994 by the order of the High Court dated 17.4.2000 the City Magistrate, Mirzapur on the application of Bhoopendra Singh and others addressed to the D.M, Mirzapur gave possession to the answering respondents on 24.11.2001

18. A rejoinder-affidavit has been filed by the petitioner and we have perused the same.

19. In para 5 it is stated that the D.M, Mirzapur lodged an F.I.R Against the respondent Nos. 8 to 10 under Sections 420/467/468/471/406/102B, I.P.C and in that case after investigation, charge-sheet has been lodged before the Court.

20. In para 6 it is stated that at the instance of respondent No. 7, respondent Nos. 2 and 3 in collusion with the answering respondents handed over the possession to them. It is alleged in para 8 that Testamentary Case No. 5/2003 was filed in collusion and after concealment of facts.

21. On the facts of the case we are of the opinion that this petition deserves to be allowed. It may be that there is alternative remedy which is being pursued by the petitioner, but as held by the Constitution Bench decision of the Supreme Court in State Of U.P v. Mohammad Nooh ., AIR 1958 SC 86, existence of alternative remedy is not an absolute bar to a writ petition. In Mohd. Nooh's case, the Supreme Court even observed (vide para 11):

“If an inferior Court or Tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court's sense of fair play the superior court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari, to correct the error of the Court or Tribunal of first instance, even if an appeal to another inferior Court or Tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what ex facie was a nullity for reasons aforementioned.”

22. Thus in Md. Nooh's case the Supreme Court held that even if alternative remedy has been availed of, yet the High Court can interfere under Article 226 of the Constitution.

23. No doubt ordinarily if there is an alternative remedy, and particularly when it is being availed of, the High Court will not ordinarily interfere, but that is only a rule of discretion and is not a bar to issue of a writ in appropriate cases. As observed in Mohd. Nooh's case (supra), in an appropriate case it may be the duty of the High Court to issue a writ of certiorari to correct the orders of an inferior Court or Tribunal, if the ends of justice so require, even if there is an alternative remedy.

24. In State of U.P v. Indian Hume Pipe Co. Ltd., (1977) 2 SCC 724 : AIR 1977 SC 1132 (vide para 4) the Supreme Court observed:

“There is no rule of law that the High Court should not entertain a writ petition where an alternative remedy is available to a party. It is always a matter of discretion with the Court.”

25. In Municipal Council, Khurai v. Kamal Kumar, AIR 1965 SC 1321 (vide para 7) the Supreme Court observed:

“It is true that the High Court would not ordinarily entertain a petition under Article 226 of the Constitution where an alternative remedy is open to the aggrieved party. Though that is so, the High Court has jurisdiction to grant relief to such a party if it thinks proper to do so in the circumstances of the case.”

26. In Dr. Smt. Kuntesh Gupta v. Mngt. of Hindu Kanya Mahavidyalaya, 1988 (1) AWC 347 (SC) : (1987) 4 SCC 525 : AIR 1987 SC 2186 (vide para 12) the Supreme Court observed:

“It is well established that an alternative remedy is not an absolute bar to the maintainability of a writ petition.”

27. In Ram and Shyam Co. v. State of Haryana, (1985) 3 SCC 267 : AIR 1985 SC 1147, the Supreme Court observed:

“Ordinarily it is true that the Court has imposed a restraint in its own wisdom on its exercise of jurisdiction under Article 226 where the party invoking the jurisdiction has an effective, adequate alternative remedy. More often, it has been expressly stated that the rule which requires the exhaustion of alternative remedies is a rule of convenience and discretion rather than a rule of law. At any rate it does not oust the jurisdiction of the Court.”

28. In the present case it will not be proper to relegate the petitioner to avail the alternative remedy to file a civil suit because that may take years and years to decide and thus justice will be defeated. The land in dispute was meant for building an Eye Hospital and not for the private use by the answering respondents.

29. In the present case it is evident that the land which was donated for building an Eye Hospital for the public has been fraudulently appropriated, or rather misappropriated by the answering respondents for their personal use. The land was donated by Sri Bhairav Prasad Jaiswal by his will dated 7.11.1954 by which he created a trust for building an Eye Hospital for the public, but this land has been grabbed fraudulently by the answering respondents apparently in collusion with the authorities. The Writ Petition No. 24269 of 1994 was not dismissed on merits but as infructuous since the D.M, Mirzapur had earlier taken possession of the land in dispute from the answering respondents. It is evident that the dismissal of the writ petition as infructuous by the High Court has been deliberately misinterpreted by the then City Magistrate to mean that the petition had been dismissed on merits. That was clearly not the case.

30. It is well-settled that fraud and collusion vitiate every proceeding, and hence, any order obtained from the Courts or the authorities by the answering respondents shall be treated as null and void because they totally frustrate the intention of Bhairav Prasad Jaiswal, who had donated the land in question for building of an Eye Hospital.

31. The issue of misrepresentation and fraud has been considered by the Courts time and again. A Constitution Bench of the Supreme Court in S. Partap Singh v. State Of Punjab., AIR 1964 SC 72, placed reliance upon the judgment in Lazarus Estates Ltd. v. Beasley, 1956 (1) All ER 341, wherein it has been observed as under:

“No judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud.”

32. It is a settled proposition of law that where an applicant gets an order by making misrepresentation or playing fraud upon the competent authority, such an order cannot be sustained, (vide S.P Chengulvaraiha Naidu v. Jagannathan, (1994) 1 SCC 1).

33. In Andhra Pradesh Financial Corporation v. Gar Re: Rolling Mills, (1994) 2 SCC 647 and State of Maharashtra v. Prabhu, (1994) 2 SCC 481, the Supreme Court has observed that a writ court, while exercising its equitable jurisdiction, should act so 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 subtleties invented to evade law.”

34. The ratio laid down by the Supreme Court in various cases is that dishonesty should not be permitted to bear the fruit and benefit the persons who played fraud or made misrepresentation and in such circumstances the Court should not perpetuate the fraud, (vide District Collector and Chairman, U.S.W School Society v. M. Thirupura Sandri Devi, (1990) 3 SCC 655 and Union of India v. M. Bhaskaran, 1995 Supp (4) SCC 100.

35. In United India Insurance Company Ltd. v. Rajendra Singh, 2000 (2) AWC 1349 (SC) : (2000) 3 SCC 581, the Supreme 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.

36. Similar view has been reiterated in K.G Ashok v. Kerala Public Service Commission, 2001 AIR SCW 1969: Biswanath Poddar v. Archana Poddar, (2001) 8 SCC 187 and Kendriya Vidyalaya Sangathan v. Ram Ratan Yadav, 2003 (3) AWC 1245 (SC) : 2003 (97) FLR 117.

37. In Upen Chandra Gogai v. State of Assam, (1998) 3 SCC 381, the Supreme Court held that the Court should not “validate an action which was not lawful at the inception, nor can the Court permit an appointment made by giving a go-bye to the essential mode of recruitment as provided by the Statutory Rules and the same cannot be permitted to be overlooked/violated”. (vide R.K Trivedi v. Union of India, (1998) 9 SCC 58).

38. Similarly, in New India Assurance Co. Shimla v. Kamla, the Supreme Court held that an order which is null and void remains inexecutable and unenforceable for ever as it cannot acquire legal validity by any process of sanctification whatsoever for the reason that forgery is antithesis to legality and law cannot afford to validate a forgery.

39. In United India Insurance Co. Ltd. v. Rajendra Singh, 2000 (2) AWC 1349 (SC) : 2000 AIR SCW 835, the question whether a decree or an order of a Court obtained by fraud is void was again considered and it was held that such an order is wholly void.

40. The Supreme Court followed its own earlier judgment in S.P Chengalvaraya Naidu (dead) by L.Rs v. Jagnnathan (dead) by L.Rs, (1994) 1 SCC 1 : AIR 1994 SC 853, in which the Supreme Court observed:

“Fraud avoids all judicial acts, ecclesiastical or temporal” observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the Court is a nullity and non est in the eyes of law. Such a judgment/decree by the first Court or by the highest court has to be treated as a nullity by every Court, whether superior or inferior. It can be challenged in any Court even in collateral proceedings.”

41. The Supreme Court also relied on its earlier decision in Indian Bank v. Satyam Fibres (India) Pvt. Ltd., (1996) 5 SCC 550 : AIR 1996 SC 2592, where it was observed that since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of the Court the Court has inherent power to set aside an order obtained by fraud.

42. We are clearly of the opinion that the answering respondents obtained possession of the land in question by playing fraud and in collusion with the authorities. Hence, all orders obtained from the Courts by the answering respondents will be treated as null and void as held by the Supreme Court in the aforesaid decisions. As regards the interim order dated 29.1.2003 in Testamentary Case No. 5 of 2003, it is well-settled that an interim order is no precedent, and at any event the said order cannot be allowed to perpetuate the fraud played by the answering respondents in collusion with the authorities. As observed by the Supreme Court in the aforesaid decisions, an order obtained by fraud is null and void and unenforceable.

43. We fail to understand how the D.M, Mirzapur or City Magistrate, Mirzapur gave possession of the property in dispute in favour of the answering respondents, and how the Administrator General, U.P executed a lease in their favour, thus clearly frustrating the intention of Bhairav Prasad Jaiswal, who wanted an Eye Hospital for the public to be constructed there. Moreover, there was no public auction/tender for grant of the lease, and it seems to have been given as a largesse for extraneous considerations, which is clearly illegal in view of Ramanna's case, (1979) 3 SCC 489 : AIR 1979 SC 1628 and other decisions. We are clearly of the opinion that the said lease was illegal and we quash the same. The possession of the land in dispute shall be taken back by the D.M, Mirzapur forthwith and utilised for setting up an Eye Hospital for the general public. The D.M, Mirzapur shall consult medical, engineering and other experts and shall immediately commence construction of the public Eye Hospital, as was desired by the testator. The D.M will be incharge of the completion of this project, and will send compliance report to this Court, which will be listed before us.

44. We also direct that an F.I.R be lodged forthwith against the then D.M, Mirzapur and City Magistrate as well as against the answering respondents and an investigation be made by the Chief Secretary, U.P to find out why the land in dispute was ordered to be restored to the answering respondents, when it was donated for an Eye Hospital for the general public. The land is said to be worth over Rs. 50 lacs and we are distressed to note the way in which the authorities dealt with the same in collusion with the answering respondents.

45. The petition is allowed. Impugned order dated 24.11.2001 is quashed.

46. Let a certified copy of this judgment be sent by the Registrar General of this Court forthwith to the Chief Secretary, U.P who will order an inquiry against the then D.M, Mirzapur and City Magistrate, Mirzapur and consider placing the City Magistrate under suspension till the completion of the inquiry. The Chief Secretary, will send a compliance report to this Court. Copy of this order will also be sent forthwith by the Registrar General to the D.M, Mirzapur for compliance of this order.