Allahabad High Court
Mohammad Shabi And 8 Others vs State Of U.P. And 4 Others on 5 September, 2023
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. 2023:AHC:175164 Reserved -: 17/08/2023 Delivered -: 05/09/2023 Court No. - 48 Case :- WRIT - B No. - 2253 of 2023 Petitioner :- Mohammad Shabi And 8 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- A.P.Singh Counsel for Respondent :- C.S.C.,Furquan Ahmad (Alvi),Rameshwar Prasad Shukla Hon'ble Saurabh Shyam Shamshery,J.
1. The issue raised in this writ petition has been partially dealt with in a judgment passed by this Court on 29.08.2023 in a bunch of cases, leading being Writ B No. 947 of 2023 (Basdev vs. State of U.P. and 5 others) (Neutral Citation No. 2023:AHC:173700) that Section 11-A of U.P. Consolidation of Holdings Act, 1953 would not have any bar in reopening a case, if the revenue entries in regard to nature of land was such that it not be a part of consolidation and relevant part thereof are mentioned hereinafter -:
"29. The argument that Deputy Director of Consolidation has taken cognizance of application at very belated stage i.e. after more than 2 decades, may be relevant but since there is per se presence of element of 'fraud on statute' and that Assistant Consolidation Officer has allotted a public land to petitioners without any 'necessity' or 'expediency' and without any alternative land being earmarked for said public purpose ('pasture land'), therefore, as it is well settled that a 'fraud' which also includes a 'fraud on statute', if detected, can be considered even at any later stage. Legal principle that 'fraud vitiates every solemn act' which also amounts to an abuse of the process, and the court or concerned Authority has inherent power to set aside, an order obtained by fraud practised upon it or a statute also and for that few paragraphs of a judgment passed by Supreme Court in Smriti Madan Kansagra vs. Perry Kansagra, 2021 SCC Online SC 909, would be relevant and being quoted below -:
"49. xxxx
23. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of court, the courts have been held to have inherent power to set aside an order obtained by fraud practised upon that court. Similarly, where the court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order.
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50. In United India Insurance Co. Ltd. v. Rajendra Singh, (2000) 3 SCC 581, this Court observed:-
"16. Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly-discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim."
2. Facts of present case are that petitioners have claimed that their ancestors were recorded in the revenue records on land in dispute and during consolidation proceedings, by an order dated 09.06.1978, the Consolidation Officer, Azamgarh had recorded name of petitioners on land in dispute after death of their ancestors.
3. Sri A.P. Singh, learned counsel for petitioners has submitted that subsequently in terms of Section 27 of the U.P. Consolidation of Holdings Act, 1953, CH Form-45 was prepared wherein name of petitioners were continued on land in dispute. At a subsequent stage, proceedings were initiated before Deputy Director of Consolidation since it was found that land in dispute was recorded as 'pokhari' or 'bhita' in old revenue records and since these revenue records were neither placed before Consolidation Officer nor when CH Form-45 was prepared, therefore, legal error has been erupted by entering names of petitioners in revenue records in regard to land in dispute and later on it remained continued.
4. In the aforesaid judgment, this Court has also referred the land which could not be a part of consolidation proceedings in view of relevant provisions of U.P. Zamindari Abolition and Land Reforms Act, 1950 as well as Act of 1953. Even such fact was revealed at later stage i.e. after consolidation proceedings were over, still an error could be cured and appropriate order could be passed.
5. It has not been effectively disputed by petitioners on the basis of any document or otherwise that the land was initially recorded in revenue records as pokhari as well as such land could not be included in consolidation proceedings.
6. Therefore, I do not find that Deputy Director of Consolidation has committed an error by restoring the land in dispute in revenue records being 'pokhari' or 'bhita' as well as that a fraud vitiates all solemn act and that relevant records were not placed by the officials of department that in revenue records, land in dispute was recorded as 'pokhari' or 'bhita' which is nothing but a fraud and it is well settled proposition of law that fraud vitiates all solemn act.
7. With above observations, this writ petition being sans merit is dismissed.
Order Date :- September 05, 2023 Nirmal Sinha [Saurabh Shyam Shamshery, J.]