AI Structured Summary
Not yet generated for this judgment
Judgment
(1) Heard on IA No.3675/2018, an application for dismissing the petition as not maintainable.
(2) For the purpose of deciding the maintainability of the writ petition, it would be appropriate to reproduce the relief clause which is as under:-
"I. It is, therefore, humble prayer that this petition may kindly be allowed and a writ of certiorari, mandamus, or any other appropriate writ, order or direction may kindly be issued and the sale certificate Annexure P/5 dated 30/03/1981 in favour of the respondent Nos./ 2 and 5 and 7 to 31 and others may kindly be declared ab-initio void and quashed. In pursuance of the construction permission, the construction made by the respondent Nos. 2 to 5 may be declared unauthorized construction and respondents may kindly be directed to remove the same. The respondent No.1 may also be directed to mutate the name of the petitioner on this property.
II. And order dated 10/04/1982 Annexure P-15 be quashed.
III. Any order in the facts and circumstances deems fit may kindly be granted in the interest of justice.
IV. And respondent Nos.2 to 5 and 7 to 31 may kindly be directed to deliver unauthorized possession held by them or their representative of trust property in question to the petitioner trust in the interest of justice.
(3) In this petition, the challenge is to the sale certificate (Annexure P/5) dated 30/03/1981 which was issued by the Court of First Additional, District Judge, Gwalior in exercise of power under Order 21 Rule 94 of the Code of Civil Procedure (hereinafter referred to as "CPC") in execution case No.19-B of 1978 into 1979.
(4) The brief facts leading to filing of this case are that the petitioner/trust Maloji Rao Narsing Rao Shitole, Litigation, Conduct and Cost Benefit Trust was created by Late Maloji Rao Shitole Narsing Rao Sitole. Trust has been registered by the Registrar, Registration Gwalior. The property in question is a immovable property in the shape of Bada named as Bade Shitole Ka Bada, old Municipal No.20/547, New Municipal No.37/2285. This property consisted of shops and residential portions and open land measuring about 34,704 Sq.ft. The property originally belonged to Maloji Rao Shitole who had transferred this property to the petitioner/trust vide registered trust deed dated 29/06/1965. Some loan was taken from the Bank of Maharashtra by Jai Singh Rao Shitole S/o Malolji Rao Shitole. Jai Singh Rao Shitole failed to repay the loan, therefore, Bank filed a civil suit against him for recovery of loan which was taken for running Jai Steel, Baraghat Industrial Area, Jhansi Road, Gwalior. Suit No.19B/ 1978 was decreed in favour of the Bank from the Court of first Additional District Judge, Gwalior. In execution of the decree, the decree holder i.e. Bank of Maharashtra got the aforesaid immovable property auctioned and sale certificate dated 30/03/1981 was issued by the Court in favour of the respondents No.2 to 4 including other respondents describing their respective shares.
(5) Shri K.B. Chaturvedi, learned senior counsel with Shri G.P. Chaurasiya, counsel for the petitioner contended that since petitioner/trust was the owner of the property, therefore, the property could not have been adjusted towards the dues of judgment debtor mentioned in sale certificate (Annexure P/5). Secondly, the property of the petitioner/trust cannot be auctioned to satisfy the liability of Jai Singh Rao Shitole, therefore, the sale certificate does not confer any right, title and interest in favour of respondents No.2 to 4 and other respondents (auction purchasers). Subsequently, 23 auction purchasers filed a civil suit against the Bank of Maharashtra and M/s. Jai Steels which was registered as civil suit No.19A/1980 filed before the District Judge, Gwalior. This suit was withdrawn by the plaintiffs vide order dated 30/01/1981. Respondents No.2 to 4 and other respondents got their names mutated in the disputed trust property before the Municipal Corporation, Gwalior without any notice to the petitioner/trust as well as original owner of the property -Maloji Rao Shitole. The petitioner/trust objected to the mutation on the ground that the disputed property is a trust property and the same cannot be auctioned for satisfying the personal liability of Jai Singh Rao Shitole, therefore, mutation in the name of the respondents is bad.
(6) Since nothing was heard from the Municipal Corporation. Reminders were sent but of no avail. Thereafter, the petitioner/trust came to know that respondents No.1 and 6 have granted the permission for construction to the respondents No. 2 to 4 and others who did not have right, title and interest in the disputed property. The judgment debtor is not the owner of the disputed property. In fact, judgment debtor with collusion of the decree holder gave possession to the auction purchasers i.e. respondents No. 2 to 4 and others.
(7) In view of the above, the petitioner/trust had no option but was constrained to file the present petition before this Court. It is further submitted that since sale certificate is based on fraud, therefore, the consequential proceedings deserves to be quashed along with construction permission which has been granted to the auction purchasers.
(8) Learned counsel for the petitioner, in support of his argument, has relied upon the judgment of Allahabad High Court in the case of M/s. Behari Lal Baldeo Prasad, Commission Agents, Kalpi Vs. Commissioner, Jhansi Division, Jhansi & Ors. [AIR 1966 Allahabad 176] to contend that writ petition under Article 226 is maintainable and alternative remedy cannot be a ground to dismiss the writ petition. In the aforesaid judgment following views were taken:-
"23. For the respondents an objection in limine was raised. It was urged that a mandamus restoration of possession cannot be ordered from a private individual. The writ of mandamus goes to a statutory authority alone. Even if the orders were bad and are set aside, the auction purchasers cannot be directed to restore back possession of the properties. No authority was cited in support of this proposition. Under Article 226 of the Constitution the High Court is not confined to what was known as the High Prerogative Writ of Mandamus in England. The High Court is not bound by its technical limitations. It can issue other writs, directions and orders. It has jurisdiction to issue such directions and orders as the ends of justice require or in order to effectively repair the breach of a citizen's fundamental rights. It is not disputed that the officers who took possession of the auctioned properties can be directed to restore it back. The officers delivered possession to the purchasers on 2-5-1961. These purchasers claim immunity from an order of restoration of possession because their status is not statutory, because they do not hold any statutory office and have no statutory duty to perform.
The source of their possession is statutory action. The incidents and liabilities of such action attach equally to their right of possession. On such action being set aside, and on the statutory authority being directed to undo the wrong by restoring possession, the purchasers will in the eye of law be duty bound to aid and assist them. At common law they will be deemed entrusted with the public duty to give back possession to the authorities. Mandamus lies against a private person or body entrusted by Common Law with a public duty. See Arunachalam Chettiar Firm v. Kaleeswara Mills Ltd., AIR 1957 Mad 309, para. 9. When all concerned parties are before the Court, a complete and an effective order is appropriate
The petition succeeds. The actions taken in the course of recovery proceedings after 6-12-1961 are quashed. The auction sale and the order of the Commissioner, dated 14-4-1964 confirming the sales are set aside. The Inspecting Assistant Commissioner's order, dated 16-4-1964 cancelling the stay order is quashed. The parties are relegated to the position as it obtained on 6-12-1961. The respondents shall forthwith restore back the possession of the auctioned properties to the petitioner. In the circumstances the parties shall bear their own costs.
(9) Learned counsel for the petitioner further contended that when an order is illegal and per se void its legality can be examined both under Articles 226/227 of the Constitution of India. In the case of Mena Transport, Mumbai Vs. Assistant Commissioner of Commercial Tax, Sendhwa [2003 (4) MPLJ, 52] it is held as under:-
"When the order is illegal and per se void, no doubt the same can be examined under writ jurisdiction because it directly affects the validity of the order and the question of exercise of jurisdiction by the authority which clearly attracts the cause for issuing writ of certiorari. It is not only because the decision of the Tribunal is void but it is because the authority concerned has violated the statutory provisions of law and principle of natural justice and has not exercised jurisdiction vested in it under the law. Therefore, High Court can examine the legality of the order both under Articles 226/227 of the Constitution of India."
(10) Learned counsel for the petitioner further relied upon the judgment of the Apex Court in the case of Santosh Vs. Jagat Ram and Anr. [2010 (3) MPLJ, 1] to contend that since sale certificate is based on fraud, therefore, a fraud puts an end to everything and such a decree is nothing but a nullity.
(11) Learned counsel for the petitioner has further relied upon the judgment of Apex Court in the case of S.P. Chengalvaraya Naidu Vs. Jagannath [1994 (1) SCC 1 ] to contend as under:-
"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 honest 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."
(12) In view of the aforesaid, it is clear that the courts of law are meant for imparting justice between the parties and one who comes to the court, must come with clean hands. No court can allow itself to be used instrumental to fraud. The basic principle is that parties who secures the judgment by taking recourse to fraud could not be allowed to enjoy the fruits. On the aforesaid principle of law, learned counsel for the petitioner contends that writ petition is maintainable, therefore, IA No.3675/2018 seeking dismissal of the writ petition deserves to be rejected and petition be heard on merits.
(13) Per contra, Shri S.K. Shrivastava, learned counsel for the respondents No. 28, 29 and 30 have filed the return and raised various preliminary objections. They have also filed IA No.3675/2018 which is being considered for dismissing the petition on the ground of maintainability. The objections raised are as under:-
"I. The first limb of his argument is that writ petition is not maintainable since there is no resolution/authority letter on record to show that the petitioner/trust had authorized Prahlad Rao Shitole to file present writ petition on behalf of trust. IA No.178/2019 for taking resolution on record dated 17/07/2011 has been filed. On perusal of the same, it can be seen that no where in the said resolution Prahlad Rao Shitole has been authorized to file petition on behalf of trust. Only some trustee have been appointed. Even otherwise these appointment of trustee is contrary to clause 8 of trust deed (Annexure P-1). Specific procedure has been laid down to appoint a trustee. Admittedly such kind of procedure has not been followed while appointing the trustees vide resolution dated 17/07/2011. Therefore, writ petition cannot be entertained.
II. The petitioner/trust being a third party to the suit, the sale certificate dated 30/03/1981 (Anenxure P/5) issued by the learned Executing Court in exercise of powers under Order 21 Rule 94 of CPC cannot be quashed. Admittedly, the petitioner/trust was neither the judgment debtor or the decree holder in the civil suit. Proper recourse available to the petitioner/trust for getting sale certificate dated 30/03/1981 quashed is to apply under Order 21 Rule 90 CPC on the ground of irregularity or fraud, therefore, writ petition under Article 226 of the Constitution particularly when fraud is yet to be establish by leading cogent evidence is not maintainable.
III. There is no proper explanation of the delay for seeking quashment of the sale certificate dated 30/03/1981 after lapse of 31 years. In fact, judgment debtor in the sale certificate were Jai Singh Rao Shitole, Krishan Rao Shitole, Smt. Sushila Raje. Admittedly, Jai Singh Rao is the member of the trust is as clear from clause 8 of the trust deed (Annexure P/1) and he is also party to the sale certificate. Jai Singh Rao Shitole was having knowledge of the property and same has been auctioned in the year 1981 but they kept mum for 31 years on this ground also, the petition deserves to be dismissed.
IV. Declaration of title can not be granted in writ petition particularly in view of the fact that specific provisions under the Civil law for example; Order 21 Rule 90, Order 21 Rule 58 and Order 21 Rule 97 are available to the petitioner. The title of the disputed property has attained finality as the same is vested in the private respondents by the order of the court, therefore, unless or until, the petitioner is not declared as owner of the property, no relief can be granted to the petitioner. The relief prayed by the petitioner/trust under such circumstances seeking declaration of the title cannot be granted in a writ petition.
V. No relief of mandatory injunction (removal of construction) can be granted under Article 226 of the Constitution of India since petitioner is required to prove his title over the property.
VI. Relief of recovery of possession cannot be granted under Article 226 of the Constitution of India.
VII. The writ petition is also not maintainable for the fact that decree holder/Bank of Maharashtra has not been arrayed as respondent who would be adversely affected in case, writ petition is entertained, therefore, for want of joinder of necessary party, it is liable to be dismissed.
(14) It is further submitted that no element of public law is involved. Private dispute of ownership cannot be decided under Article 226 of the Constitution of India. The petitioner has raised mixed questions of facts and law in the present petition i.e. question of fraud which can only be decided by leading cogent evidence and not on the basis of pleadings supported by an affidavit. Lastly, it is contended that instant petition involves highly disputed questions of facts regarding ownership of the property, possession etc. which is required to be proved on the basis of evidence, therefore, writ petition is liable to be dismissed. In support of his contention, learned counsel for the respondents has relied upon the judgment of Apex Court in the case of State of M.P. & Anr. Vs. Sind Mahajan Exchange Ltd. [1999 RN 328 (SC)] in which the Apex Court held that in a writ petition, no question of title can be decided. In that case High Court had decided the question of title in writ petition. However, Apex Court has reversed the judgment of High Court and held that question of title cannot be decided in a writ petition.
(15) In the case of State of Rajasthan Vs. Bhawani Singh & Ors. [AIR 1992 SC 1018], it is held that writ petition was misconceived insofar as it asked for, in effect, a declaration of writ petitioner's title to the said plot. It is evident from the facts that the title of the writ petitioner is very much in dispute. Disputed question relating to title cannot be satisfactorily gone into or adjudicated in a writ petition.
(16) In the case of Pradeep Kumar Sharma Vs. Uttar Pradesh Financial Corporation [(2012) 10 SCC 424], the Apex Court has held in para 15 that dispute appears to be of civil nature and parties denuded the lis as public law character cannot be entertained. It has been further held that question whether sale is proper or not can only be decided in the civil suit and not in a writ petition.
(17) In the case of Swati Ferro Alloys Private Limited Vs. Orissa Industrial Infrastructure Development Corporation & Ors. [(2015) 4 SCC 204], the Apex Court has held that disputed questions of fact of Civil nature cannot be decided in the writ petition under Article 226 of the Constitution of India.
(18) In the case of Shankara Cooperative Housing Society Vs. M. Prabhakar [(2011) (5) SCC 607], the Apex Court held that delay and latches is one of the important factor which is required to be kept in mind by the Hon'ble High Court while deciding a petition under Article 226 of Constitution of India. The extraordinary delay will certainly disentitle the writ petitioner to seek the remedy under Article 226 of the Constitution of India.
(19) In the case of Dwarika Prasad Agrawal Vs. B.D. Agrawal [AIR 2003 SC 2686], the Apex Court held that writ petition is a public law remedy the Hon'ble High court while exercising power of judicial review is concerned with illegality and procedural impropriety of an order passed by State or any other authority, the same cannot be invoked for resolution of private law dispute.
(20) In the case of M/s Hindustan Steel Limited Vs. Smt. Kalyani Benerajee [AIR 1973 SC 406], the Apex Court held that relief of competency or grant of lease or challenge to the title/possession of the person cannot be decided in a writ petition.
(21) Heard learned counsel for the parties.
(22) In the recent judgment of the Hon'ble Apex Court in the case of Roshina T Vs. Abdul Azeez K.T. & Ors. passed in Civil Appeal No.11759/2018, it has been held as under:-
"16. In our view, the writ petition to claim such relief was not, therefore, legally permissible. It, therefore, deserved dismissal in limine on the ground of availability of an alternative remedy of filing a civil suit by respondent No.1 (writ petitioner) in the civil Court.
In our opinion, the High Court, therefore, while so directing exceeded its extraordinary jurisdiction conferred under Article 226 of the Constitution. Indeed, the High Court in granting such relief, had virtually converted the writ petition into a civil suit and itself to a Civil Court. In our view, it was not permissible.
(23) In view of foregoing discussions, this Court is of the considered opinion that relief claimed cannot be granted to the petitioner in exercise of the jurisdiction under Article 226 of the Constitution of India particularly looking to the fact that disputed questions of facts arise for consideration as well as the question of possession which could only be decided by the Civil Court in civil suit, accordingly, writ petition deserves to be and is hereby dismissed being not maintainable. However, parties shall be at liberty to file civil proceedings in the civil Court for claiming appropriate reliefs in relation to the disputed property in question and for adjudication of other claims.