Punjab-Haryana High Court
Surjit Kaur vs Improvement Trust And Ors. on 28 September, 2005
Equivalent citations: (2006)142PLR428, AIR 2006 (NOC) 397 (PUNJ. & HAR.)
JUDGMENT M.M. Kumar, J.
1. This petition filed under Article 226 of the Constitution prays for issuance of directions to the respondents to handover the actual physical possession of Plot No. 6 measuring 150sq. yds. in Model Town Extension Part II, Block 'C' Scheme of Ludhiana Improvement Trust, Ludhiana. It is pertinent to mention that the petitioner Surjit Kaur wife of Kirpal Singh has approached this Court through her special power of attorney Ms. Gurleev Arora d/o Rajinder Singh now resident of House No. 2855, Sector 38-C, Chandigarh on the basis of special power of attorney executed by Surjit Kaur in favour of Ms Gurleen Arora.
2. The case of the petitioner is that Surjit Kaur became a member of the Ludhiana Central Bank Employees Cooperative House Building Society Limited, Ludhiana respondent No. 2 (for brevity 'the Society') and had paid all dues concerning her membership. Her name is entered at serial No. 53 of the register of members. She has applied for allotment of plot in the Model Town Extension Part 11, Block 'C' Scheme and it is claimed that she was allotted plot No. 6, measuring 150 Sq. yards in the said locality. She has paid all the dues including development charges and exemption fee at the rate of Rs.5/- per square yard. A letter to that effect is stated to have been written by the respondent society to the Chairman of the Improvement Trust, Ludhiana intimating about the allotment of plot No.6 in favour of the petitioner and all the dues towards the said plot having been paid by her. Accordingly a request was made for transfer of the plot in her name and handing over the possession of the plot (Annexure P.1). The petitioner has levelled allegations against one Vijay B. Verma who had taken over as President of the society somewhere in the year 1993 who revised the lay out plan and made changes in the allotment of plots in respect of the petitioner. As a consequence plot No. 727 measuring 156 Sq.Yds. was shown to have been allotted to her. Against the afore-mentioned change made by the society in the year 1993, the petitioner made a representation to the Registrar, Cooperative Societies, Punjab on 29.12.1993 (Annexure P.2). The petitioner is alleged to have paid all the legitimate dues towards the price, development charges and other charges regarding plot No.6 which are more than Rs.24,000/-. Rs.20,000/- is stated to have been paid by bank draft on 26.6.1993 which was encashed on 1.7.1993 by the society. The balance amount of Rs.4,000/- is alleged to be accepted in cash by the President of the society. It is alleged that non delivery of the actual possession of Plot No.6 measuring 150 Sq.Yards in Model Town Extension Scheme Part III is absolutely arbitrary.
3. After the filing of written statement by respondents, the petitioner has admitted that an appeal has been filed before the Joint Registrar, Cooperative Societies and the Appellate Authority has passed an order on 17.1.1997 (Annexure P,9) adjourning the appeal sine die on account of the pendency of the instant petition. The afore-mentioned appeal is directed against resolution dated 28.8.1993 (Annexure R/2/1) with the reply of respondent No,2.
4. In the reply filed by respondent No.2 numerous objections have been raised. Firstly, it has been asserted that the writ petition is not maintainable because the society (respondent No.2) is not an authority or instrumentality of the State. It is claimed that the Society is purely a private person without any financial or administrative control of the State. It has further been pointed out that a general body of respondent No.2 had passed a resolution on 28.8.1993 (Annexure R/2/1) expelling the petitioner from the primary membership after her membership has been proved to be fictitious and by proxy of one Rajinder Singh. (The instant petition is pursued through his daughter). A perusal of the afore-mentioned resolution shows that one Rajinder Singh. who was working as Executive Officer of the Improvement Trust, Ludhiana had forced the society in the year 1990 to enroll two of his benami members namely Surjit Kaur (the petitioner) and Sneh Prabha. After allotment of plots by the Improvement Trust, Ludhiana, to the Society the afore-mentioned Rajinder Singh deliberately played a fraud with the society as the plots allotted by the Trust were non existing and most of them were under the illegal occupation of Nihangs and Jhuggi dwellers. The afore-mentioned Rajinder Singh is alleged to have produced some ladies impersonating as Surjit Kaur and Sneh Prabha. Then he started claiming vacant possession. The affidavit which has been filed before the society is also alleged to be false. It has further been pointed out that a civil suit No. 2231 dated 10.10.1991 for a declaration was also filed by the petitioner claiming that she was owner of plot in question and relief of permanent injunction to restrain the respondent from selling/re-allotting the plot to any other person was claimed. The afore-mentioned Suit was instituted on 10.10.1991 by the petitioner before the Court of learned Civil Judge, 1st Class, Ludhiana which was dismissed for non prosecution on 8.6.1994. A copy of the order dated 8.6.1994 has been placed on the record as Annexure R/2/2. The petitioner thereafter filed the instant writ petition. The afore-mentioned facts have also not been disclosed in the writ petition. It has also been asserted in para 5 of the written statement that Shri Vijay B. Varma was duly elected President of the Society and the allegations of mala-fide against him are baseless. The complaint Annexure P.2 made by Rajinder Singh and Gurleen Kaur discloses that they have purchased the plot in question from Surjit Kaur on the basis of power of attorney. The complaint was also dismissed by the Assistant Registrar, Cooperative Societies, Ludhiana after making detailed investigation being frivolous. The assertion with regard to payment of Rs. 24,000/- more in order to get possession of the plot in question have also been categorically denied. The President of the society never received Rs.4,000/- in cash. It is, however, admitted that Rs. 20,000/- was collected towards development charges which were lying deposited with respondent No. 1. In the concluding para it has been urged that the petitioner is a fictitious person and he never approached the answering respondent for delivery of the plot in question. According to the averments made in para 5 of the writ petition read with Annexure R/2/1 she is alleged to have already sold the plot to Rajinder Singh and Gurleen Kaur and she has no locus standi to file the petition.
5. Having heard the learned Counsel for the parties, I am of the considered view that the present petition is a complete mis-use of the process of the Court. The petitioner has firstly tailed to disclose to this Court the filing of civil suit no. 2231 dated 10.10.1991. She has also failed to disclose the dismissal of the suit under Order IX Rule 8 of the Code on 8.6.1994 (Annexure R/2/2). It is well settled that once a suit is dismissed under Order IX Rule 8 of the Code in the presence of the defendant then the filing of a fresh suit on the same cause of action is impermissible as is evident from the perusal of Order IX of the Code. The only remedy in such a situation available to the petitioner was to apply for an order to set aside the order dated 8.6.1994 dismissing the suit for non appearance of the petitioner. Therefore, it is highly doubtful whether in such a situation the writ petition could have been filed. It is further evident that the petitioner has failed to disclose these facts even in the writ petition which lead to the inference that concealment was with the object of obtaining admission of the petition. Such a conduct has been adversely commented in large number of judgments including the Full Bench judgment of this Court in the case of Chiranji Lal and Ors. v. Financial Commissioner, Haryana and Ors. 1978 P.L.J. 373. Placing reliance on the English Court judgment in the case of The King v. The General Commissioner for the purposes of the Income Tax 1917(1) Kings Bench Division 486, their Lordships observed as under:
It is, thus plain that even at the stage the writ petition was filed, the petitioners therein were more than well aware that the identical issues of law and fact regarding which they claimed relief in this Court had already been conclusively decided against them in a civil court to which they had themselves resorted. Nevertheless, they deliberately and calculatedly suppressed this fact entirely from the writ court. There can hardly be any doubt that if all these facts were candidly disclosed at that stage as the writ petitioners were bound to do, then the Court would have stayed its hand altogether or in any case would have been very reluctant and chary to grant any interim relief. Thus is not all. In the writ petition was further averred that no other remedy was available to the petitioners. This has to be viewed in the context of the fact that meanwhile the writ petitioners had then filed an appeal against the order of the learned Subordinate Judge which to their knowledge was pending decision and in which also they were seek in the identical relief. There can be, thus, no manner of doubt that the averments in this context were deliberately and calculatedly designed to keep the writ Court in the dark with regard to these material facts and to procure an interim or ultimate relief by keeping these facts out of the way. It is perhaps equally significant that during this interval the writ petitioners continued to prosecute their remedy by way of appeal before the Additional District Judge, Karnal and ultimately he dismissed the same on merits after considering all the arguments raised on behalf of the appellants (writ petitioners) on August 17, 1976. Nevertheless, this fact was also not remotely sought to be brought to the notice of this Court at any stage on behalf of the writ petitioners.
In the aforesaid context, we cannot but hold that there has been a mala fide and calculated suppression of material facts which, if disclosed would have disentitled the petitioners to the extraordinary remedy under the writ jurisdiction or in any case would have materially affected the merits on both the interim and ultimate relief claimed. We categorically reject the plea of the writ petitioners that the failure to mention all these material facts clearly within their knowledge was either inadvertent or was occasioned by any bonafide omission.
6. The matter does not end there. The petitioner has failed to prove that the Society (respondent No.2) is amenable to writ jurisdiction of this Court. The society is neither controlled functionally or constitutionally by the Government. There are no bureaucrats heading the society nor it performs any function which could be considered to be a function of the State. It has also not been shown that the Society is financially supported by the State leading to the conclusion that mere is deep and pervasive control of the State or its agencies. It is thus clear that the Society (respondent No.2) is nothing else but a private person and in these circumstances no writ under Article 226 of the Constitution would be maintainable against the Society.
7. There is another aspect of the matter. The society (respondent No.2) have vehemently urged that the petitioner is a fictitious person and the allotments were made benami by Rajinder Singh who has mis-used his position as Executive Officer of the Improvement Trust, Ludhiana (respondent No.l). The assertion of the society is meritorious. A perusal of the title of the petition shows that the instant petition has been filed by Surjit Kaur through Gurleen Kaur daughter of Rajinder Singh. The afore-mentioned Rajinder Singh is non else than the Executive Officer of the Improvement Trust (respondent No.l) whose name has been repeatedly mentioned in the resolution dated 28.8.1993 (Annexure R/2/1) which deals with the cancellation of the membership of the petitioner Surjit Kaur. The afore-mentioned resolution has not been made subject matter of challenge before this Court. It would be profitable to quote the afore-mentioned resolution in extenso and the same reads as under:
6. To consider expulsion and cancellation of allotment of plot of Smt. Surjit Kaur and Smt. Sneh Prabha.
Shri Subhash Malik, Ex-President of the society informed the house that during the year 1990, one Rajinder Singh was Executive Officer of the Improvement Trust, Ludhiana and he dealt with the case of the society for allotment of plots and Shri Rajinder Singh was not clearing the case of the society and was raising frivolous objections in writing on the file of the society. Shri Had Chand Luthra produced photocopies of frivolous and repeated objections raised by said EG and photo copies were obtained from the file of Improvement Trust, Ludhiana. Shri Malik further continued that Shri Rajinder Singh forced his committee to enroll two of his benami members namely Smt. Surjit Kaur and Smt. Sneh Prabha in 1990 and only after that he cleared the case of the society. After allotment of plots by Improvement Trust, Ludhiana, it was revealed that Shri Rajinder Singh deliberately played a fraud with the society as the plots allotted by the Trust are non existing and most of them were under illegal occupation of Nihangs and Jhggi jewelers. But Shri Rajinder Singh produced some ladies of said names and started claiming vacant plots. Smt. Surjit Kaur was allotted at first plot No. 6 but later on she made a request that her plot number may be changed. Shri Rajinder Singh also produced an affidavit of Smt: Surjit Kaur that with the allotment of said plot, all her claims stand satisfied and this affidavit was filed on l4.6.1993. Now, the society has come to know that said affidavit is false since said Smt. Surjit Kaur concealed material facts about the pendency of some enquiries and cases initiated by her about which the society had no knowledge. Thus, the documents of Smt. Surjit Kaur produced by S. Rajinder Singh are prima facie false and misleading. Shri Ajay Chopra Secretary of the society informed the house that now Shri Rajinder Singh has obtained some alleged power of attorney from Smt. Surjit Kaur and the lady produced by Shri Rajinder Singh of the name of Smt. Surjit Kaur never lived at the given address given by her. Shri Ajay Chopra further revealed that Shri Rajinder Singh and Smt. Surjit Kaur acting through Shri Rajinder Singh also filed false complaints against the society and its office bearers for which the society is being harassed. Shri Hari Chand Luthra, ex-Secretary of the society informed the house that an enquiry of the complaint of Smt. Surjit Kaur was also made by a senior officer of the Directorate of prosecution and litigation and complaint was found to be false. Smt. Surjit Kaur has also instituted various proceedings against the society and its office bearers through said Shri Rajinder Singh, details of which are being proved by the society. Shri Ajay Chopra, Secretary of the society issued a show cause notice to Smt. Surjit Kaur and Smt. Sneh calling upon her as to why they should not be removed from the primary membership of the society and as to why the allotment of plots obtained by them by illegal means and by practising a fraud, should not be cancelled. The notice was issued on 4.8.1993 but no reply of the same has so far been received when also an agenda item was circulated and framed. The matter has been considered in detail.
The affidavit of Smt. Surjit Kaur has also been scrutinised and the same is false on the face of it in view of the proceedings already instituted by her which are still pending. All other circumstances about her fraudulent enrollment and conduct of Shri Rajinder Singh who is now acting as an attorney of said members and also was E.O. in Improvement Trust at the relevant period, have been considered by the house, it is unanimously resolved that allotment of plot made to Smt. Surjit Kaur is hereby cancelled and Smt. Surjit Kaur is also expelled from the primary membership of the society. Unanimously passed. Further on the same grounds Smt.Sneh Prabha is also expelled.
8. It is thus evident that the present writ petition is being pursued by the daughter of the same Rajinder Singh who was then working as Executive Officer of the Improvement Trust, Ludhiana (respondent No. 1). It is further not understandable that once the plot had been sold by the so called Surjit Kaur, the petitioner to Rajinder Singh and Gurleen Kaur then how the petition could be maintained in her name. I am further of the view that the conclusion reached by the society (respondent No.2) in its resolution (Annexure R/2/1) dated 28,8.1993 is not without basis and the real beneficiary of the allotment is Rajinder Singh who in fact is perusing the instant petition. Still further, the appeal is pending against the afore-mentioned resolution before the Joint Registrar which also reflects clearly that he has been perusing the appeal.
9. The preceding paras prove it beyond doubt that an attempt has been made by Ra-jinder Singh and his daughter Gurleen Kaur to over-reach this Court. Their conduct is fraudulent because it has been proved that they have made false representation knowingly and without any belief in its truth. Such like conduct can only attract adverse comments of the court. The Supreme Court has repeatedly opined on the afore-mentioned subject.In a recent judgment in the case of Commissioner of Customs v. Essar Oil Mills Ltd. , their Lordships have dealt with the subject of fraud by referring to a number of judicial precedents. The views of the Supreme Court has been expressed in paras 29, 30 and 31 and the same reads as under:
By 'fraud' is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from 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 any harm whatsoever 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 is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied. (See Vimla (Dr.) v. Delhi Admn. (1963) 2 Crl.L.J. 434 and 'Indian Bank v. Satyam Fibres (India) (P) Ltd. .
A 'fraud' is an act of deliberate deception with the design of security something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. S.P. Chengalvaraya Naidu v. Jagannath .
Fraud" is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent 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 fraud in law if a party makes representations, which he knows to be false, and injury ensures therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including resjudicata (see. Ram Chandra Singh v. Savitri Devi .
10. It is thus clear that Rajinder Singh alongwith Gurleen Arora have committed fraud firstly with the Society by obtaining benami allotment in favour of Surjit Kaur. The membership of the Society in respect of Surjit Kaur was cancelled vide resolution dated 28.8.1993 (Annexure R/2/1) and the same was challenged before the Joint Registrar. Even the suit has been filed in the name of Surjit Kaur and this has been done by the afore-mentioned Rajinder Singh who has mis-used his position as Executive Officer of the Improvement Trust, Ludhiana in order to gain lawful advantage and to cause un-dueloss to the society. The advanturous game indulged by the petitioner is not worthy of any compliment. The fountain of justice has to be kept pure and free from any pollution. The writ jurisdiction of this Court under Article 226 cannot be used in favour of such a claim. Therefore, the writ petition is liable to be dismissed.
11. For the reasons mentioned above, this petition fails and the same is dismissed with costs of Rs. 10,000/-. The cost is to be paid by Gurleen Kaur Arora through whom the instant petition has been filed to the society (respondent No.2) within a period of four months from today. If the cost is not paid to the society (respondent No.2) shall be entitled to move appropriate application for recovery of cost.