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Judgment
N. Paul Vasanthakumar, J.—Prayer in the writ petition is to quash the order of the third respondent dated 18.11.1994 recording the name
of the first respondent as tenant in respect of property measuring about 9.04 acres in S. No. 323/2 at Anuppanadi, Chatrapatti village, Palani
Taluk, Dindigul District.
The brief facts necessary for disposal of the writ petition are as follows.
(a) Petitioner is the owner of the property measuring about 9.04 acres in S. No. 323/2 at Anuppanadi, Chatrapatti Village, Palani Taluk, Dindigul
District. She filed a suit in O.S. No. 100 of 1976 on the file of the Principal Sub Court, Dindugal against the second respondent in this writ petition
(8th defendant in the suit) and some other persons and prayed to declare the petitioner''s title to the above mentioned property, which was the
subject matter of the suit, after cancellation of the partition deed dated 22.8.1965 between the 9th and 10th defendants in the suit insofar as it
relates to the suit property and recovery of possession of the same from defendants 1 to 8 with past and future mesne profits. In the suit, petitioner
contended that she purchased the suit property from the defendants 6 to 8 for consideration of Rs. 6,000/- on 17.7.1953 by a registered sale deed
and she was in possession and enjoyment of the property. After settlement proceedings, the petitioner''s title was recognised and she was issued
with patta No. 161 for the said property.
(b) Petitioner''s husband permitted defendants 1 to 5 in the suit to reside in the tiled house situated in the suit property to keep a watch over the suit
property and after some time petitioner requested the defendants 1 to 5 in the suit to vacate from the tiled house and they have refused and claimed
title to the suit property on the defendants 6 to 8, who had earlier sold the property to the petitioner herein. Hence, the above suit for declaration of
title and recovery of possession and mesne profits was filed.
(c) The 6th defendant in the suit filed written statement which was adopted by the respondents 1 to 3, 7 and 8, wherein it is stated that the
petitioner has no title to the suit property and the registered sale deed dated 17.7.1953 is a sham and nominal document, which was never acted
upon and the suit is barred by res judicata and the defendants 6 to 8 have perfected title by adverse possession and also claimed that the relief of
cancellation of partition deed is barred by limitation and also barred under Order II Rule 2 CPC. The learned Sub Judge decreed the suit on
20.12.1978 and declared the title of the petitioner and ordered recovery of possession with mesne profits.
(d) Defendants 1 and 6 to 8 preferred A.S. No. 129 of 1979 on the file of this Court, which was also dismissed by a learned single Judge on
31.8.1987, by confirming the decree and judgment of the Trial Court in favour of the petitioner insofar as title, possession and mesne profits. The
first defendant and the second respondent herein, who was the 8th defendant, filed LPA No. 138 of 1987 before this Court and a Division Bench
of this Court dismissed the same by judgment dated 22.10.1992.
(e) The petitioner further states that after prolonged legal battle of 16 years for getting declared his title and relief for recovery of possession,
petitioner filed E.P. No. 283 of 1993 before the Sub Court, Dindigul, for delivery of possession and the said EP was opposed by the second
respondent by filing counter affidavit. Even in the counter affidavit second respondent herein has not stated anything about the tenancy of the suit
property as claimed by the first respondent herein. The Execution Court after going through the entire records, on 5.9.1995 ordered delivery of
possession to the plaintiff before 26.9.1995. Before the delivery could be effected, the second respondent herein instigated the first respondent to
file an Obstruction petition in E.A. No. 363 of 1995 in E.P. No. 283 of 1993 in O.S. No. 100 of 1976, claiming tenancy right over the suit
property through the 2nd respondent.
(f) In the above said Obstruction petition, the first respondent made a statement that he has made an application before the third respondent to
register his name as tenant in respect of the said property and the third respondent also in his proceedings dated 18.11.1994 passed an order
recording his tenancy. Petitioner, after knowing the same filed counter affidavit in E.A.363 of 1995 and stated about the judgment obtained by the
petitioner and the Executing Court after examining the rival contentions dismissed the Obstruction petition filed by the first respondent. As against
which the first respondent preferred A.S. No. 55 of 1996 on the file of the District Court, Dindigul and prayed for stay of the execution.
(g) During pendency of the appeal, first respondent also filed suit in O.S. No. 459 of 1995 on the file of the District Munsif Court, Palani against
the petitioner and the second respondent. First respondent claimed tenancy rights over the said property through the second respondent (8th
defendant in O.S. No. 100 of 1976) and prayed for a permanent injunction. Petitioner filed detailed written statement. The said suit is pending.
(h) According to the petitioner, first respondent filed the above suit O.S. No. 459 of 1995 as well as the appeal against EA order by relying on the
illegal and fraudulent proceedings initiated by him before the third respondent to register his name in respect of the above property and the first
respondent fraudulently got his name registered as tenant through the proceedings of the third respondent dated 18.11.1994 with the collusion of
the second respondent, who was a party to the civil proceedings throughout. The said recording of the name of the petitioner as tenant made by
the third respondent by order dated 18.11.1994 is challenged in this writ petition.
The respondents even though were served and appearing through their respective counsel, have not chosen to file counter affidavit denying the
averments in the affidavit filed in support of the writ petition.
The learned Counsel appearing for the petitioner argued that the first respondent has played fraud before the third respondent by impleading the
second respondent alone, who is not the owner of the property and the second respondent has fraudulently gave his consent for recording the
name of the first respondent as tenant before the third respondent, based on which the third respondent erroneously recorded the name of the first
respondent as tenant in respect of petitioner''s property, whose title, ownership are all declared by the competent civil Court, confirmed by a
learned single Judge and also by a Division Bench of this Court. The learned Counsel ultimately submitted that the impugned order dated
18.11.1994 is to be set aside as it is vitiated by fraud and misrepresentation. It is also contended that the petitioner, who is the real owner of the
property has not been shown as party before the third respondent in the tenancy proceeding and therefore the third respondent''s order is in
violation of the principles of natural justice.
The learned Counsel appearing for the 4th respondent argued that the writ petition is not maintainable in view of the fact that there is an appeal
remedy available against the order of the third respondent under the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969, and
therefore the petitioner has no right to file this writ petition and the writ petition is liable to be dismissed on the ground of availability of alternate
remedy.
Heard the learned Additional Government Pleader for the third respondent and also the learned Counsel appearing for the second respondent.
I have considered the rival submissions of the learned Counsel for the petitioner as well as the learned Counsels for the respective respondents.
The point in issue is whether the third respondent is right in recording the name of the first respondent as tenant, solely on the basis of the
consent given by the second respondent, who has no ownership or right over the property in question and also whether the action of the
respondents 1 and 2 in getting the name of the first respondent, registered as tenant is a fraudulent action or not.
It is not in dispute that the subject matter of the Tenancy, that is 9.04 acres of land in Survey No. 323/2 at Anuppapatti, Chatrapatti village,
Palani Taluk, Dindigul District, was the suit property in O.S. No. 100 of 1976 on the file of the Principal Sub Court, Dindigul. The second
respondent, who was the 8th defendant in the suit contested the suit and the learned Sub Judge, after going through the matter in issue with regard
to the title of the property, decreed the suit as prayed for. The first appeal filed by the second respondent and others in A.S. No. 129 of 1979 was
also dismissed by a learned Single Judge of this Court (S.A. Khader, J.) by judgment dated 31.8.1987, negativing the claim of the second
respondent. Admittedly the second respondent and another (D-2) filed L.P.A. No. 138 of 1987 and the same was also dismissed with cost by a
Division Bench of this Court (P.S. Misra, J. and Arumugam, J) by judgment dated 22.10.1992. Thus, it is manifestly clear that the petitioner''s title
to the property is declared and the same has become final. Execution Petition filed by the petitioner in E.P. No. 283 of 1993 before the Sub Court,
Dindigul was also resisted by the second respondent by filing counter affidavit on 16.12.1994, wherein also the second respondent has not stated
the tenancy right said to have been given to the first respondent in the year 1992.
I have perused the impugned order in this writ petition recording the name of the first respondent as tenant by the third respondent. The
application submitted on 7.11.1994 before the third respondent by the first respondent finds a place in page No. 71 of the typed set of papers filed
along with the writ petition, wherein the name of the land owner is mentioned as Palanisamy, S/o. Kuppanna Gounder (second respondent). The
application is numbered as T.R. No. 32 of 1994. Admittedly the said application is filed after the order made in LPA No. 138 of 1987 dated
22.10.1992. On the application made by the first respondent, the third respondent has not made any enquiry and he has simply recorded the
consent given by the second respondent, which is the basis for recording the first respondent''s name as tenant.
In the above facts and circumstances, the question to be resolved in this writ petition is whether the second respondent is the owner of the
property and whether he is competent to give consent to record the name of the first respondent as tenant.
As already stated in the previous paragraphs, the petitioner, who is the owner of the land and her title having been declared by the competent
Civil Court in the Original Suit, first appeal and confirmed by the High Court in LPA No. 138 of 1987 as early as on 22.10.1992, in which the
second respondent was the second appellant, the second respondent has lost his claim of ownership/title to the property and therefore the claim
made by the first respondent in the application before the third respondent submitted on 7.11.1994 that the second respondent is the owner of the
land, is a misleading statement and contrary to the judgment of the Division Bench of this Court. Admittedly the second respondent is not the
owner of the said land and his claim was rejected as early as in the year 1978. Hence the claim made by the first respondent to record his name as
tenant on the basis that the second respondent is the owner of the property is a misleading statement and his claim is void ab initio. The consent
given by the second respondent to record the name of the first respondent as tenant is per se illegal.
The impugned order is passed by the third respondent based on the consent given by the second respondent. The second respondent who is
not the owner of the property is not competent to give consent to record the name of the first respondent as tenant. The second respondent has
given consent as owner of the property, which is contrary to the judgment of this Court as stated supra. Hence the second respondent has played
fraud before the third respondent and based on the fraudulent consent given, the third respondent has recorded the first respondent''s name as
tenant. In view of the said facts it is established beyond doubt that the first respondent is not entitled to get tenancy right recorded on the basis of
the alleged consent given by the second respondent, who is not competent to give consent at all. Hence I hold that a fraud has been played by the
first and second respondent, pursuant to which the impugned order is passed by the third respondent.
It is well settled in law that an order obtained by fraud is a nullity.
(a) In the decision reported in Ramachandra Ganpat Shinde and another Vs. State of Maharashtra and others, , the Honourable Supreme Court
considered the fraudulent order and in paragraphs 8,9 and 13 held thus,
It would be obvious that A.K. Patil, Ex-Chairman of the defunct Committee with a view to get over that impediment and to enable newly
admitted 2000 members after December 17, 1991, set up More, a co-director and Mule, alleged to be his friend, got filed the first writ petition
and obtained a direction to conduct election following its heels; got filed second writ petition with a format of legal process but immediately Patil
intervened and appeared on the very date of admission; put forth consent order and obtained the order from the court to conduct election as per
the provisional list existing as on June 30, 1992 and got issued the direction to the Collector with the mandate to conduct election in accordance
with that list. It was specifically alleged that Patil colluded with More and Mule, abused the process of the court, played fraud on the court and
obtained minutes order by consent without knowledge to any member of the society. In the absence of any denial of the allegations and in the light
of the background of the case the necessary inference to be unerringly deduced would be that the consent order is a collusive and fraudulent order;
made format of due process of law but obtained orders contrary to the statutory mandate of Rule 4(1) of the Rules. It could thus be seen that none
of the members of the society had any opportunity to know or to oppose the consent order. Thereby the necessary conclusion would be that a
collusive order obtained by abuse of the process of the court by playing fraud on the court, became foundation to conduct elections to the
Managing Committee of the Society circumventing the mandate of Rule 4(1) of the Rules.
In Nagubai Ammal and Others Vs. B. Shama Rao and Others, this Court held that collusion in judicial proceedings is a secret arrangement
between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister
purpose. In such a proceeding, the claim put forward is fictitious, the contest over it is unreal, and the decree passed therein is a mere mask having
the similitude of a judicial determination and worn by the parties with the object of confounding third parties. This was reiterated in Rup Chand
Gupta Vs. Raghuvanshi Private Limited and Another, in which this Court held that the collusion is an improper act done by an improper refraining
from doing an act, for a dishonest purpose. In these two cases this Court set aside the collusive decree obtained by the parties. Collusion, thus, is
the foundation to put forward a format of judicial process and a pretext of contest which in effect is unreal and a farce and the decree or order
obtained on its basis is a mere mask having similitude of judicial determination with the object of confounding third parties. The offending order is
vitiated by collusion and formed foundation for election to the committee of the Society.
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Respect for law is one of the cardinal principles for an effective operation of the Constitution, law and the popular Government. The faith of the
people is the source and succor to invigorate justice intertwined with the efficacy of law. The principle of justice is ingrained in our conscience and
though ours is a nascent democracy which has now taken deep roots in our ethos of adjudication - be it judicial, quasi-judicial or administrative as
hallmark, the faith of the people in the efficacy of judicial process would be disillusioned if the parties are permitted to abuse its process and
allowed to go scoot free. It is but the primary duty and highest responsibility of the court to correct such orders at the earliest and restore the
confidence of the litigant public, in the purity of the fountain of justice; remove stains on the efficacy of judicial adjudication and respect for rule of
law, lest people would lose faith in the courts and take recourse to extra-constitutional remedies which is a death-knell to the rule of law.
(b) In Indian Bank Vs. M/s. Satyam Fibres (India) Pvt. Ltd., in paragraphs 22 and 23, the Honourable Supreme Court held as follows,
The judiciary in India also possesses inherent power, specially u/s 151 CPC, to recall its judgment or order if it is obtained by fraud on court.
In the case of fraud on a party to the suit or proceedings, the court may direct the affected party to file a separate suit for setting aside the decree
obtained by fraud. Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from
legislation but from the nature and the constitution of the tribunals or courts themselves so as to enable them to maintain their dignity, secure
obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behavior. This power is necessary for the
orderly administration of the court''s business.
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 practiced 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 (See:
Benoy Krishna Mukerjee Vs. Mohanlal Goenka and Others, ; Gajanand Sha and Others Vs. Dayanand Thakur, ; AIR 1947 236 (Nagpur) ;
Devendra Nath Sarkar v. Ram Rachpal Singh AIR 1926 Oudh 315; Saiyed Mohd. Raza v. Ram Saroop AIR 1929 Oudh 385; Bankey Behari
Lal v. Abdul Rahman AIR 1932 Oudh 63; Lekshmi Amma Chacki Amma v. Mammen Mammen 1955 KLT 459. The court has also the inherent
power to set aside a sale brought about by fraud practised upon the court Ishwar Mahton v. Sitaram Kumar AIR 1954 Pat. 450 or to set aside
the order recording compromise obtained by fraud. Bindeshwari Pd. Chaudhary Vs. Debendra Pd. Singh and Others, ; Tara Bai v. V.S.
Krishnaswamy Rao AIR 1985 Kant 270.
(c) In the decision reported in United India Insurance Co. Ltd. Vs. Rajendra Singh and Others, in paragraphs 13 and 16 the Honourable Supreme
Court held as follows,
In S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, the two-Judge Bench of this Court held:
(SCCp.2,para 1)
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.
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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.
(d) In the recent decision reported in Mayar (H.K.) Ltd. and Others Vs. Owners and Parties, Vessel M.V. Fortune Express and Others, in para
20, the Honourable Supreme Court held thus,
In S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar and Others, this Court has accepted the principle that the: (SCC p.173, para 13)
suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the courts
to deter a litigant from abusing the process of court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been
suppressed it would have had an effect on the merits of the case. It must be a matter which was material for the consideration of the court,
whatever view the court may have taken.
Reliance was placed on R. v. General Commrs. for the purposes of the Income Tax Act for the District of Kensington (1917) 1 KB 486.
From the above referred decision, it is crystal clear that once a person obtained an order by fraud or collusion, the same can be set aside at any
time.
The first respondent is also not entitled to get his name entered in the record of Tenancy Register maintained by the third respondent in view of
the provisions of the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969 (Act X of 1969). Section 2(5) of the Act defines ''Land
Owner'' as follows,
landowner"" means the owner of the land let for cultivation by a tenant and includes the heirs, assignees or legal representatives of such owner or
persons deriving rights through him.
From a perusal of the above definition it is clear that the ''landowner'' must be a real owner, who has got title over the property.
Here in this case, petitioner''s ownership of the land is declared as early as in the year 1978 and the same has been confirmed by a Division
Bench of this Court in LPA No. 138 of 1987 by judgment dated 22.10.1992. Hence the second respondent, who is not the owner, is fraudulently
shown as owner in the application filed by the first respondent before the third respondent on 7.11.1994. Hence the application itself is incorrect,
particularly with regard to the second respondent''s ownership of the land.
As per Section 3(2) of the Tamil Nadu Agricultural Lands Record of Tenancy rights Act, 1969, the record shall contain the following
particulars,
3(2) The record referred to in Sub-section (1) shall contain the following particulars, namely:
(a) the survey number or sub-division number, extent and local names, if any, of the land;
(b) the name and address of the landowner;
(c) the name and address of the intermediary, if any;
(d) the name and address of the tenant cultivating the land; and
(e) such other particulars as may be prescribed.
From a perusal of the above, it is clear that the record shall contain the name and address of the landowner among other things. As stated supra,
the name and address of the land owner is purposely and with evil motive shown as second respondent, who is not the owner as per the
declaration given by the competent Civil Court. Hence the action of the respondents 1 and 2 in furnishing wrong particulars and misleading of the
third respondent cannot be approved, particularly when the second respondent gave consent for recording the first respondent''s name in the
tenancy register, which is the sole basis for recording the first respondent''s name as tenant by the third respondent. Hence the collusion between
the respondents 1 and 2 are proved beyond any doubt and by virtue of the wrong information furnished and the erroneous consent given by the
second respondent, who is not the owner, the third respondent was compelled to pass the impugned order.
The contention of the learned Counsel for the first respondent that the petitioner is not entitled to file this writ petition and she can only file
appeal u/s 6 of the Tamil Nadu Agricultural Land Record of Tenancy Rights Act, 1969, cannot be sustained in view of the fact that the petitioner is
not a party to the proceeding; the impugned order was obtained by the first and second respondent by playing fraud; second respondent gave his
consent for recording the tenancy for which he has no authority as per the Civil Court decree; apart from the fact that this Court admitted the writ
petition taking note of the fraud played by the second respondent, without directing the petitioner to exhaust the alternate remedy of the filing
appeal in the year 1998. Hence the first respondent is not justified in now contending that the petitioner ought to have filed appeal against the
impugned order u/s 6 of the Act and the writ petition cannot be maintained. The said contention is also not valid as I have already held that the
impugned order was obtained by playing fraud by the respondents 1 and 2, more particularly respondent No. 2 and the first respondent is the
beneficiary due to the fraud.
In view of my finding that the impugned order passed by the third respondent was on the basis of the fraud played by the respondents 1 and 2,
it should be treated as nullity and the same can be pleaded by the petitioner in any proceedings as held by the Division Bench of this Court in the
decision reported in 1993 WLR 534 (Little Flower Teacher Training Institutes for Men and Women, etc. v. The State of Tamil Nadu and 3 Ors.
(para 4). Hence the petitioner is justified in filing this writ petition questioning the validity of the order of the third respondent and rightly the writ
petition was posted along with C.M.A. No. 807 of 1999 (which was allowed by a separate judgment dated 16.10.2006).
It is also pertinent to point out at this juncture that the respondents have conveniently and purposely failed to file counter affidavit because they
have not denied what is stated in the affidavit of the petitioner as the said averments are made based on records. Even at the time of arguments, the
learned Counsel for the respondents were specifically asked as to whether they want to file counter. The answer of each of the counsel was in the
negative. Hence the presumption is available to the petitioner that all the averments are deemed to be accepted by the respondents.
The effect of not filing of counter is considered by the Calcutta High Court in the decision reported in 1985 (2) SLJ 321 Nagendranath
Majumdar v. State of West Bengal in para 4 held that ''in view of the fact that the allegations and/or the claim of the petitioner are not controverted
by the School authorities, who have been made respondents to the writ petition and also by the Director of Secondary Education, the District
Inspector of Schools and also the State of West Bengal, the contention of the petitioner must be upheld.''
The only objection raised by the learned Counsel for the first respondent is that the petitioner cannot file this writ petition when there is an
appellate remedy provided under the Act and the petitioner having not filed appeal the order has become final.
Section 15 of the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969, states that any entry in the record of tenancy rights
shall be presumed to be found correct until the contrary is proved or a new entry is lawfully substituted therefor. In this case, the petitioner has
proved the contrary, that is, the entry made in the Tenancy Register is a fraudulent one, which was made on the basis of the consent given by the
second respondent, who has no right or title over the subject matter of the property. Hence the presumption is rebutted by producing Civil Court
Judgments in Original suit, first appeal and in the LPA in favour of the petitioner. The submission of the learned Counsel for the first respondent that
due to the availability of alternate remedy, the writ petition is not maintainable is unsustainable in view of the decision of the Constitution Bench of
the Honourable Supreme Court in the decision reported in A.V. Venkateswaran, Collector of Customs, Bombay Vs. Ramchand Sobhraj
Wadhwani and Another, .
(a) In the said decision, the Honourable Supreme Court considered the earlier decision reported in AIR 1958 SC 86 State of Uttar Pradesh v.
Mohammad Nooh, wherein it is observed thus,
... It must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other
equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been
conferred by statute. The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in
arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of
inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory
remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and
discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party
had other adequate legal remedies.
After referring to a few cases in which the existence of an alternative remedy had been held not to bar the issue of a prerogative writ, the learned
Chief Justice added:
It has also been held that a litigant who has lost his right of appeal or has failed to perfect an appeal by no fault of his own may in a proper case
obtain a review by certiorari.
In the result this Court held that the existence of other legal remedies was not per se a bar to the issue of a writ of certiorari and that the Court was
not bound to relegate the petitioner to the other legal remedies available to him.
In para 10 of the decision in A.V. Venkateswaran, Collector of Customs, Bombay Vs. Ramchand Sobhraj Wadhwani and Another, , the
Honourable Supreme Court held as follows,
The passages in the judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor-General
formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even
beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of
an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down,
their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper
exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it
would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court.
(b) In the decisions reported in State of Himachal Pradesh Vs. Raja Mahendra Pal and Others, in para 6 the Honourable Supreme Court held that
availability of alternate remedy does not debar Court from granting appropriate relief to the citizen under peculiar and special facts.
(c) In the recent decision reported in Mrs. Sanjana M. Wig Vs. Hindustan Petro Corporation Ltd., in para 17 the Honourable Supreme Court held
as follows,
A three-Judge Bench of this Court in Gujarat Ambuja Cement Ltd. (supra), referring to Harbanslal Sahnia, (supra) held:
There are two well recognized exceptions to the doctrine of exhaustion of statutory remedies. First is when the proceedings are taken before the
forum under a provision of law which is ultra vires, it is open to a party aggrieved thereby to move the High Court for quashing the proceedings on
the ground that they are incompetent without a party being obliged to wait until those proceedings run their full course. Secondly, the doctrine has
no application when the impugned order has been made in violation of the principles of natural justice. We may add that where the proceedings
itself are an abuse of process of law the High Court in an appropriate case can entertain a writ petition.
From the Judgments above referred, rendered by the Honourable Supreme Court, it is clear that existence of the alternate remedy is not a bar
to entertain a writ petition under Article 226 of Constitution of India at all times and it is the discretion of the Court to entertain the writ petition
even before exhausting the alternate remedy available under the statute. In the decision in Mrs. Sanjana M. Wig Vs. Hindustan Petro Corporation
Ltd., , it is held that when the proceedings are abuse of process of law, the High Court in an appropriate case, entertain the writ petition. Here in
this case, taking note of the abuse of process of law and the fraud played by the second respondent, this Court admitted the writ petition in the
year 1998 and the same is also proved before me by the petitioner supported by records. Therefore, I am fully satisfied to entertain this writ
petition and hold that the contention raised by the respondents that the writ petition is not maintainable in view of availability of appeal remedy, is
unsustainable.
For the foregoing reasons, the writ petition is allowed. The impugned order dated 18.11.1994 passed by the third respondent in favour of the
first respondent is quashed. No costs.