Allahabad High Court
Ashok Kumar Agarwal vs Ajay Mathur And Others on 27 March, 2015
Author: B. Amit Sthalekar
Bench: B. Amit Sthalekar
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserve Court No. - 27 Case :- WRIT - C No. - 63910 of 2008 Petitioner :- Ashok Kumar Agarwal Respondent :- Ajay Mathur And Others Counsel for Petitioner :- Swapnil Kumar,S.K. Sharma,Vinod Kumar Singh Counsel for Respondent :- S.C.,T.A.Khan Hon'ble B. Amit Sthalekar,J.
There is a Trust by the name of Sri Ganga Maharani Dharamshala Kunj Trust, Raj Ghat, Bulandshahr and the property in dispute, which is situated in Qasba Chandousi District Moradabad, is said to belong to this Trust which also runs the Dharmshala situated near the bank of river Ganga at Raj Ghat, District Bulandshahr. The trust is stated to be a Public Trust.
The petitioner is aggrieved by the orders dated 18.9.2008 and 2.10.1996, which have been put to challenge in the present writ petition.
The case of the petitioner is that one Sri Bhagwan Swaroop Mathur, father of respondent no.1, claiming himself to be one of the trustees moved an application before the District Judge, Moradabad under Section 7 of the Charitable and Religious Trusts Act, 1920 (hereinafter referred to as the 'Act, 1920') seeking permission to transfer the land mentioned in the application in favour of one Sri Narendra Kumar Gupta, respondent no.2. This application was registered as Misc. Case no.12 of 1992, Bhagwan Swaroop Mathur vs. Narendra Kumar Gupta.
In the application it was stated that the property in dispute was Trust property and as a trustee he was in need of money for the repair of the Dharmshala and in any case the land in question sought to be sold out was not serving any purpose. Its value was assessed at Rs.1,25,000/- and Sri Narendra Kumar Gupta was ready to purchase the same for Rs.1,60,000/-.
The District Judge issued notices on the application and on 9.8.1996 in pursuance of the direction of the Ist Additional District Judge a notice is stated to have been published in the daily news papers 'Dainik Jagaran' Bareilly Edition on 14.9.1996 in which date of 20.9.1996 was given.
The case of the petitioner further is that the newspaper publication dated 14.9.1996 mentions the next date as 20.9.1996 but it does not state as to what the application all about nor is the name of the Trust mentioned nor any property mentioned therein nor the purpose of publication indicated. It only mentions application for "permission". The Ist Additional District Judge, Moradabad by the impugned order dated 2.10.1996 has allowed the application and permitted Sri Bhagwan Swaroop Mathur, the applicant, to dispose of the said property in favour of Sri Narendra Kumar Gupta and has further directed for filing a copy of the sale deed within two months.
In pursuance of the court's order dated 2.10.1996 Sri Bhagwan Swaroop Mathur is stated to have executed two sale deeds of the property in question on 30.11.1996. One sale deed is for area measuring 132.44 sq.yards [mentioning East-79 feet, West-79 feet, North-15 feet 3 inch and South-14 feet 6 inch (110.72 sq. meter) boundaries]. The demarcation of the property has been mentioned in paragraph 10 of the writ petition, which is reproduced as under-
East- Property of trust and Sardar Ameer Singh.
West- Shop of trust which is being sold to Nirmal Gupta today. North- Gher Babu Ram Jindal and South- Public Road. The second sale deed was executed by Sri Bhagwan Swaroop Mathur in favour of Smt. Nirmal Gupta, respondent no.3 even though there was no permission for the same from the District Judge. This sale deed is for area measuring 132.30 sq.yards [mentioning East-79 feet, West-79 feet, North-23 feet 3 inch and South-6 feet 3 inch (110.62 sq.meter) boundaries]
The demarcation of the property has been mentioned in paragraph 10 of the writ petition, which is reproduced as under-
East- Property of Narendra Kumar Gupta.
West- Property of trust and Rani Ram Kali.
North- Gher Babu Ram Jindal and South- Public Rasta.
The case of the petitioner further is that even assuming that the impugned order dated 2.10.1996 granted permission for sale in favour of Sri Narendra Kumar Gupta there is no such permission for sale in favour of Smt. Nirmal Gupta, respondent no.3 and this sale deed is for a consideration of Rs.80,000/- It is submitted that the petitioner came to know about the news item published only in the daily newspaper 'Dainik Jagran' on 21.11.2002 relating to the demolition of the property in some suit pending between Smt. Nirmal Gupta and Sri Pradeep. On enquiry he came to know that the property was sold in pursuance of the order of the Additional District Judge, Moradabad dated 2.10.1996. The petitioner, therefore, on 20.1.2003 submitted an application under Section 151 C.P.C. for quashing of the order dated 2.10.1996. This application has been filed under Section 5 of the Limitation Act along with an affidavit seeking condonation of delay. The court issued notices on 20.1.2003. Thereafter the respondents filed their objection and ultimately by the other impugned order dated 18.9.2008 the court has rejected the application of the petitioner. Hence the present writ petition.
I have heard Sri Swapnil Kumar, learned counsel for the petitioner and Sri T.A.Khan, learned counsel appearing for the respondent no.2 and also perused the documents on record.
As per office report dated 12.4.2013 notice on respondents no.1, 3 and 4 shall be deemed to be sufficient.
The principle objection raised by Sri Swapnil Kumar is that the impugned order dated 2.10.1996 was passed on 'Gandhi Jayanti' which was a national holiday, therefore, no such order could have been passed on that date nor the court could be said to be functioning on that date and, therefore, the order is a fraudulent and manufactured order.
At the time of admission this Court by order dated 11.12.2008 had directed the Registrar General of this Court to obtain a report from the District Judge, Moradabad as to whether on 2nd October, 1996 the court had functioned and whether in fact an order was passed in Misc. Case No.12 of 1992 (Bhagwan Swaroop Mathur vs. Narendra Kumar Gupta). The District Judge, Moradabad submitted his report on 12.12.2008 stating that although normally the court remains closed on 2nd October but from the record it appears that a Lok Adalat was organized in the districts courts on that date and an order was passed in Misc. Case No.12 of 1992. The In-charge District Judge also submitted a report dated 11.12.2008 to the effect that on that date a Lok Adalat was held in District Moradabad and orders were passed in a large number of cases including Misc. case no.12 of 1992. On 16.12.2008 this Court raised a query as to whether Misc. Case no.12 of 1992 was a case which could have been decided by the Lok Adalat under the Legal Services Authorities Act, 1987 (hereinafter referred to as 'the Act, 1987') and therefore, notices were issued to the respondents.
In paragraph 7 of the supplementary counter affidavit filed on behalf of the respondent no.2 it has been stated that the proceedings under Section 7 of the Act, 1920 are summary in nature and the Lok Adalat was competent to decide the case and deliver the judgment.
Section 7 of the Act, 1920 provides that any trustee of an express or constructive trust created or existing for public purpose may apply by petition to the court within the local limits of whose jurisdiction any substantial part of the subject matter of the trust is situated, for the opinion, advice or direction of the court on any question affecting the management or administration of the trust property.
Section 7 of the Act, 1920 reads as follows:
"7. Powers of trustee to apply for directions. (1) Save as hereinafter provided in this Act, any trustee of an express or constructive trust created or existing for public purpose of a charitable or religious nature may apply by petition to the court within the local limits of whose jurisdiction any substantial part of the subject-matter of the trust is situate, for the opinion, advise of direction of the court on any question affecting the management or administration of the trust property, and the court shall give its opinion, advice or direction, as the case may be, thereon:
PROVIDED that the court shall not be bound to give such opinion, advice or direction on any question which it considers to be a question not proper for summary disposal.
(2) The court on a petition under sub-section (1), may either give its opinion, advice or direction thereon forthwith, or fix a date for the hearing of the petition, and may direct a copy thereof, together with notice of the date so fixed, to be served on such of the persons interested in the trust, or to be published for information in such manner, as it thinks fit.
(3) On any date fixed under sub-section (2) or any subsequent date to which the hearing may be adjourned, the Court, before giving any opinion, advice or direction, shall afford a reasonable opportunity of being heard to all persons appearing in connection with the petition.
(4) A trustee stating in good faith the facts of any matter relating to the trust in a petition under sub-section (1), and acting upon the opinion, advice or direction of the Court given thereon, shall be deemed, as far as his own responsibility is concerned, to have discharged his duty as such trustee in the matter in respect of which the petition was made."
Sub section 2 of Section 7 provides for giving a notice of the date fixed, to be served on such of the persons who may be interested in the affairs of the trust, or to be published for information in such manner, as it thinks fit.
Sub Section 3 of Section 7 provides that the court shall afford a reasonable opportunity of being heard to all the persons appearing in connection with the petition.
Section 19 of the Act, 1987 provides for the organization of Lok Adalats.
Sub Section 5 of Section 19 of the Act, 1987 reads as follows:
"(5) A Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the parties to a dispute in respect of-
(1) any case pending before; or
(ii) any matter which is falling within the jurisdiction of, and is not brought before, any court for which the Lok Adalat is organised:
Provided that the Lok Adalat shall have no jurisdiction in respect of any case or matter relating to an office not compoundable under any law."
Thus what emerges from the interpretation of sub section (5) of Section 19 is that a Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the parties to a dispute in respect of- (1) any case pending before; or (ii) any matter which is falling within the jurisdiction of, and is not brought before, any court for which the Lok Adalat is organized. Therefore the essential jurisdiction exercised by a Lok Adalat is to enable the parties to arrive at a compromise or settlement in respect of a dispute.
Besides the undisputed facts of the case are that the matter was stated to have been heard on 20.09.1996 and the judgment was delivered on 02.10.1996. The contention of the petitioner is that 02.10.1996 being 'Gandhi Jayanti' it was a national holiday/gazetted holiday and no case could be heard and judgment delivered on that date. However, from the enquiry made from the District Judge and from the report of the Incharge District Judge in pursuance of the order of this Court dated 11.12.2008 it was established that a Lok Adalat was held on 02.10.1996 and several cases were decided on that date. The Misc. Case No.12 of 1992 was listed for delivery of judgment in terms of the order dated 20.9.1996. Therefore, in my opinion delivery of judgment on 02.10.1996 in the present case cannot be faulted and the petition of the petitioner to that effect is rejected. However, in his application for recall of the order dated 02.10.1996 and in the affidavit filed in support of the delay condonation application the petitioner has stated that he had acquired knowledge of the sale deed executed between Bhagwan Swaroop Mathur and Narendra Kumar Gupta, respondent no.2 only in November, 2002 from news item published in the 'Amar Ujala' dated 21.11.2002. In paragraph 2 of the affidavit, filed at page 53 of the paper book it has been stated by the petitioner that some demolition work was being carried out in the property in dispute and when he came to know this fact, he made enquiries in the District Court and came to know that an order had already been passed on 02.10.1996 granting permission for sale of the property in dispute by Bhagwan Swaroop Mathur in favour of Narendra Kumar Gupta, and therefore he filed a delay condonation application supported by an affidavit and an application for recall of the order dated 02.10.1996. The petitioner's application 6-C for condonation of delay has been rejected by the impugned order dated 18.09.2008 on the ground that these proceedings have been initiated after a lapse of seven years.
In respect of challenge to the order dated 02.10.1996, Sri Swapnil Kumar, learned counsel for the petitioner has drawn the attention of the Court to the Newspaper publication, Annexure-3 to the writ petition, which is stated to be a publication in respect of Misc. Case No.12 of 1992, Bhagwan Swaroop Mathur Vs. Narendra Kumar Gupta relating to an application filed by Bhagwan Swaroop Mathur seeking permission of the civil court for sale of the property in dispute in view of the provisions of Section 7 of the Act, 1920. In paragraph 7 of the writ petition the petitioner has alleged that in this so called newspaper publication neither the name of the Trust has been disclosed nor the property in question which is proposed to be sold to Sri Narendra Kumar Gupta.
Sri T.A. Khan, learned counsel appearing for the respondent no.2 on the other hand submitted that the petitioner had no locus to question the sale deed executed between Sri Bhagwan Swaroop Mathur and Sri Narendra Kumar Gupta and in any case he has not indicated his locus in the present writ petition and the petitioner is only a busy body and is purely motivated by mala fides.
He submitted that if the petitioner was aggrieved by the sale deed, he could have applied for cancellation of the same. He further submitted that the petitioner had earlier filed a civil suit before the Civil Judge Sr. Division, Moradabad being the Original Suit No.52 of 2003, Ashok Kumar Agarwal Vs. Ajay Mathur and others for cancellation of the sale deed dated 30.11.1996 and the said suit was dismissed by the trial court on 19.04.2010. The averments to that effect have been made in paragraph 10 of the supplementary counter affidavit.
The petitioner has filed a supplementary rejoinder affidavit and in paragraph 8 thereof which is in reply to the paragraph 10 of the supplementary counter affidavit it has been stated that the suit was dismissed on the question of valuation which was decided on 31.08.2004 against the petitioner and thereafter the petitioner filed a Civil Revision No. 393 of 2004 which is still pending. It is also stated that since the petitioner did not amend his plaint as per directions dated 31.08.2014 his suit was dismissed by the order dated 19.04.2010, against which he has filed civil misc. writ petition No.42336 of 2010. It is stated that the writ petition and the revision both have been connected together and are still pending. However as already noticed above the Trust being a public charitable trust it could not be said that the petitioner did not have any interest in the affairs of the same and therefore he would be deemed to have every right to question the sale executed by Sri Bhagwan Swaroop Mathur and therefore the locus of the petitioner cannot be questioned.
Sri Swapnil Kumar, learned counsel for the petitioner submits that the order dated 02.10.1996 has been obtained by practicing fraud by late Bhagwan Swaroop Mathur and therefore the respondents cannot be allowed to enjoy the fruits of a fraudulent act. Reliance has been placed upon the following decisions of the Supreme Court reported in:
1. (2010) 8 SCC 383, Meghmala and Others Vs. G.Narasimha Reddy and Others (paragraphs 28 and 34).
2.(2010) 2 ADJ 483, Krishna Chand Vs. District Magistrate, Maharajganj and Others. (paragraphs 14, 16, 20).
3. 2012 (3) AWC 2930, Ashok Kumar Singh another Vs. State of U.P. and others (paragraph 10).
On the question of limitation and condonation of delay in filing 6-C application by the petitioner for recall of the order dated 02.10.1996 both the counsel have placed reliance upon the judgment of the Supreme Court reported in (2013) 12 SCC 649 (Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and Others. Paragraph 21 of the said judgment reads as follows:
"21-21. From the aforesaid authorities the principles that can broadly be culled out are:
21.1. (i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.
21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
21.4.(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
21.5.(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
21.7. (vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
21.12. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
Reliance has also been placed by Sri T.A. Khan upon the judgment of the Supreme Court reported in :
1. (2015) 1 SCC 680, H. Dohil Constructions Company Private Ltd. Vs. Nahar Exports Limited and Another.
2.(1977) 1 SCC 1, Jai Singh Vs. Union of India and Others.
3.(1996) 6 SCC 445, State of Rajasthan and Others Vs. D.R. Laxmi and Others. (paragraph 10).
Sri T.A. Khan, however, submits that since the petitioner has also applied for cancellation of the sale deed dated 30.11.1996 therefore this writ petition is not maintainable.
In my opinion the proceedings by way of civil suit for cancellation of the sale deed dated 30.11.1996 are quite different from permission granted by the civil court by order dated 02.10.1996 and if this order has been obtained through a fraudulent and sham newspaper publication the right of the petitioner to maintain the present writ petition cannot be defeated for setting aside the order dated 02.10.1996 or the order dated 08.09.2008 rejecting his 6-C application. In fact, applying the law laid down by the Supreme Court in Esha Bhattacharjee (supra) to the facts of this case the delay in filing the application for recall ought to have been condoned.
The newspaper publication does not disclose the name of the trust or specific particulars of the property which is desired to be sold nor does it disclose what the application as well as Misc. Case No.12 of 1992 has been filed for and for what the permission is being sought. From an examination of the newspaper publication, copy of which has been filed as Annexure-3 to the writ petition, it is noticed that no doubt for the purposes of notice to the parties interested in the trust properties, publication was stated to have been made in the 'Dainik Jagran', Bareily Edition on 14.09.1996 but the said publication does not mention for what the application has been filed nor does it mention that it is for permission to sell any property nor the property sought to be sold has been mentioned therein. The photocopy of the publication which has been filed as Annexure-3 to the writ petition is absolutely vague. It only mentions that the application has been filed for "Izzazat" i.e permission. What is this "Izzazat" or permission for has not been mentioned in the affidavit. The impugned order dated 02.10.1996 only mentions that notice of the application was served upon Sri Narendra Kumar Gupta, respondent no.2 herein who is otherwise the purchaser of the property but the impugned order does not mention as to whether and what efforts have been made for serving notice upon the other trustees. It cannot be said to be a notice in accordance with law for knowledge and notice of the general public and it appears that such a publication has been filed with a deliberate motive of avoiding any objection being filed by persons interested in the said public trust for want of particulars and thereby secure the permission for sale of property from the civil court. The Additional District Judge Moradabad who has passed the impugned order also failed to notice that the newspaper publication does not mention the name of the Trust nor the property sought to be sold nor the publication disclosed the purpose of filing of the Misc. Case No.12 of 1992, Bhagwan Swaroop Mathur Vs. Narendra Kumar Gupta. In fact the court only records that Narendra Kumar Gupta has been served with a notice and that a publication has been made in the newspaper 'Dainik Jagran' Bareily Edition dated 14.09.1996 but no objection has been filed.
This Court fails to understand as to how any member of the public could have filed objection to such an application without knowing what the application was for and whether the application relates to the Trust properties. Whiff of fraud is very strong and cannot be overlooked.
As held by the Supreme Court in the case reported in (2003) 8 SCC 319, Ram Chandra Singh Vs. Savitri Devi and Others fraud vitiates every act. The relevant paragraphs of the said judgment read as follows:
"15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well-known vitiates every solemn act. Fraud and justice never dwell together.
16. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by word or letter.
17. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentations may also give reason to claim relief against fraud.
18. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad. "
The Supreme Court has also held in the case reported in (2007) 7 SCC 434, Tanna & Modi Vs. CIT, Mumbai XXV and Others as follows:
"19. It is, however, also well settled that fraud vitiates all solemn acts. Fraudulent actions shall render the act a nullity. It would be non est in the eye of the law."
The Supreme Court has also held in another case reported in (2009) 13 SCC 569, Rani Aloka Dudhoria and Others Vs. Goutam Dudhoria and Others as follows:
"82. In Behari Kunj Sahkari Avas Samiti v. State of U.P. & Ors. [2008 (10) SCALE 551], this Court observed:
"22. In State of A.P. v. T. Suryachandra Rao [2005(6) SCC 149] it was observed as follows:
'8. 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 two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable or of money and it will include and any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non- economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always call loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied.' "
Fraud as is well known vitiates all solemn acts. Suppression of a document, it is also trite, may amount to fraud on the court. The effect of commission of fraud must be taken note of. [See also Bank of India v. Avinash D. Mandivikar (2005) 7 SCC 690]"
The Supreme Court has also held in the case reported in (2009) 13 SCC 600, State of Chhattisgarh and Others Vs. Dhirjo Kumar Sengar as follows:
"17. It is in the aforementioned premise, the contention in regard to the breach of audi alteram partem doctrine must be considered. The Principle of natural justice although is required to be complied with, it, as is well-known, has exceptions. [See Banaras Hindu University v. Shrikant, (2006) 11 SCC 42.] One of the exceptions has also been laid down in S.L. Kapoor v. Jagmohan, (1980) 4 SCC 379 wherein it was held:
"24. ....In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because courts do not issue futile writs."
18. Legality of grant of a valid appointment was dependant upon the proof that the respondent was the adopted son of Chittaranjan Singh Sengar. He not only failed to do so, the materials brought on record by the parties would clearly suggest otherwise. His application for grant of appointment on compassionate ground was rejected by the Joint Director of Education. He did not question the legality or validity thereof. He, it can safely be said, by suppressing the said fact obtained the offer of appointment from an authority which was lower in rank than the Joint Director, viz., the Deputy Director. When such a fact was brought to the notice of the Deputy Director that the offer of appointment had been obtained as a result of fraud practiced on the Department, he could, in our opinion, cancel the same.
19. The respondent keeping in view the constitutional scheme has not only committed a fraud on the Department but also committed a fraud on the Constitution. As commission of fraud by him has categorically been proved, in our opinion, the principles of natural justice were not required to be complied with."
In such circumstances no such permission could have been granted by the civil court for sale of the trust property in favour of Narendra Kumar Gupta respondent no.3 in violation of the provisions of sub-section (2) of Section (7) of the Act, 1920.
Therefore on a conspectus of facts and law, the impugned orders dated 18.09.2008 and order dated 02.10.1996 are absolutely illegal and arbitrary and without jurisdiction and are accordingly quashed.
The writ petition is allowed.
Dt: 27th March, 2015 Asha/N.Tiwari