# Mr. Asaraf Ali v. State Of U.P. & Ors - **Citation:** (2016) 4 ILRA 161 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-02-25 - **Bench:** Ran Vijai Singh - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mr-asaraf-ali-v-state-of-u-p-ors-43561 - **Pages:** 5 ## Text 4 All. Mr. Asaraf Ali Vs State Of U.P. & Ors. 161 Since it has not been disputed by the respondent that he is the tenant, and was in arrears of rent, therefore, the applicant had a cause to institute the suit for eviction and arrears of rent. It, therefore, cannot be said that the defendant was sued without a cause. In my considered opinion, therefore, the revisional court committed an error in upholding the cost of litigation. 22. For the reasons and law stated, herein above, the petition succeeds, the impugned order is quashed. 23. The petition is allowed. 24. No Order as to costs. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 25.02.2016 BEFORE THE HON'BLE RAN VIJAI SINGH, J. Writ C No.- 6870 Of 2016 Mr. Asaraf Ali ...Petitioner Versus State Of U.P. & Ors. ...Respondents Counsel for Petitioner: Hiralal, Braj Mohan Singh Counsel for Respondents: C.S.C., Subhash Chandra Yadav HELD: 1. The impugned order dated 29.01.2016 passed by the Deputy Commissioner, Food, Varanasi Division, was obtained by fraud and concealment of material facts by respondent no. 5, and therefore cannot be sustained. 2. Fraud vitiates all judicial and quasi‐judicial proceedings; any order obtained by concealment of facts is a nullity. 3. The Court entertained the writ petition despite the petitioner being a subsequent allottee, only for the limited purpose of examining the fraudulent conduct of respondent no. 5, applying a dilution of the rule in *Poonam v. State of U.P.*. 4. The respondent no. 5 filed a recall application without disclosing that he had already filed a writ petition and also concealed his withdrawal application, amounting to deliberate deception. 5. Supreme Court precedents (*S.P. Chengalvaraya Naidu*, *A.V. Papayya Sastry*, *K.D. Sharma*, *Meghmala*) reaffirm that orders obtained by fraud are nullities and can be set aside at any stage. 162 INDIAN LAW REPORTS ALLAHABAD SERIES 6. Accordingly, the recall order dated 29.01.2016 was quashed. 7. However, since a subsequent allottee has no enforceable right to claim benefit, no substantive relief can be granted in favour of the petitioner. 8. The writ petition was allowed in part to the extent of quashing the fraudulent order only. Case Law Discussed: 1. S.P. Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1. 2. A.V. Papayya Sastry v. Government of A.P., (2007) 4 SCC 221. 3. K.D. Sharma v. Steel Authority of India Ltd., (2008) 12 SCC 481. 4. Meghmala v. G. Narasimha Reddy, (2010) 8 SCC 383. 5. Inderjit Singh Grewal v. State of Punjab, 2011 (3) ACR 3544 (SC). 6. Shiv Shankar v. Board of Revenue, 2014 (10) ADJ 42. 7. Nasarudin v. State of U.P., 2015 (11) ADJ 557. 8. Smt. Javitri Devi v. State of U.P., Writ‐C 63117/2015. 9. Shyam Singh v. State of U.P., Writ‐C 63882/2015. 10. Roop Kishor v. State of U.P., Writ‐C 68087/2015. 11. Poonam v. State of U.P., Civil Appeal No. 6774 of 2015. (Delivered by Hon'ble Ran Vijai Singh, J.) 1. Heard Sri B.M.Singh, learned counsel for the petitioner, learned Standing Counsel for the State respondents and Sri Subhash Chandra Yadav, learned counsel appearing for the respondent no. 5. 2. Through this writ petition, prayer has been made to issue a writ of certiorari quashing the order dated 29.1.2016 passed by the Deputy Commissioner Food Varanasi Division Varanasi in Appeal No. 60 of 2012 (Om Prakash Vs. State of U.P.) by which the appeal filed by the respondent no. 5 against the order dated 5.12.2011 cancelling the agreement to run fair price shop of the respondent no. 5 has been allowed and the order dated 5.12.2011 has been set aside. 3. While assailing the impugned order, learned counsel for the petitioner submits that against the order dated 5.12.2011, the respondent no. 5 had filed the aforesaid appeal, which was dismissed on 12.7.2013. Aggrieved by the order dated 12.7.2013,the respondent no. 5, herein, had filed WritC No. 47301 of 2013 (Om Prakash Vs. State of U.P. and others). The said writ petition was entertained and the counter affidavit has been called for. Pending that writ petition, an application has been filed by the respondent no. 5 seeking withdrawal of the writ petition on 27.1.2016. Pending withdrawal application, the respondent no. 5 herein has filed an application seeking recall of the order dated 12.7.2013 on 22.1.2016. The said application has been allowed by the impugned order dated 29.1.2016. 4. The submission is that the order dated 29.1.2016 is an outcome of concealment of facts for the reason that while filing the recall application, the respondent no. 5 did not disclose either filing 4 All. Mr. Asaraf Ali Vs State Of U.P. & Ors. 163 of the writ petition or the application seeking withdrawal of the aforesaid petition, therefore the aforesaid order cannot be sustained in the eye of law. Whereas Sri Yadav, who appears for the respondents, submits that in view of the law laid down by the Apex Court in the case of Poonam Vs. State of U.P. and Others (Civil Appeal No. 6774 of 2015, decided on 29.10.2015), since the petitioner, who happens to be subsequently allottee, has no right to file present writ petition. 5. Considering the submissions of learned counsel for the respective parties, I am of the opinion that since the impugned order is an outcome of concealment of fact and fraud played upon the Deputy Commissioner Food Varanasi, therefore diluting the rigour laid down in the case of Poonam (supra) the writ petition is entertained for limited purpose for testing the conduct of the respondent no. 5, (the present fair price shop agent) and not for conferment of any benefit to the petitioner being subsequent allottee. 6. I have heard learned counsel for the parties and perused the record. 7. It is not in dispute that the agreement of the respondent no. 5 was cancelled vide order dated 5.12.2011 by the Sub-Divisional Officer for irregularities committed by the respondent no. 5 in distribution of the scheduled commodities and the appeal filed by the respondent no. 5 was dismissed after notice and hearing of the parties and the respondent no.5 has also challenged the order of appellate authority dated 12.7.2013 before this Court. Pending writ petition, the petitioner filed recall application without disclosing the fact that he has already filed writ petition against the order dated 12.7.2013. The respondent no. 5 has also not disclosed the factum of filing of withdrawal application and obtained the order dated 29.1.2016. 8. However, after the aforesaid order passed in the appeal, on recall application, writ petition filed by the respondent no. 5 challenging the earlier appellate order dated 12.7.2013 has been dismissed as having become infructuous on 23.2.2016. 9. The question would be as to whether an order which has been obtained by concealing the material fact can be permitted to be sustained or not. In my opinion, the order which has been obtained by concealing the material fact amounts to fraud played upon the court as well as other affected parties and that order cannot be sustained in the eye of law. It is settled that fraud and justice cannot live together. 10. In S.P. Chengal Varaya Naidu vs. Jagannath and others, (1994) 1 SCC 1, the Apex Court has observed as under:- "5....The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We 164 INDIAN LAW REPORTS ALLAHABAD SERIES have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation." 11. In A.V. Papayya Sastry v. Govt. of A.P., (2007) 4 SCC 221. Considering English and Indian cases, one of us (C.K. Thakker, J.) stated : (SCC p. 231, para 22) while dealing such matter, the Apex Court has observed as under:- "22. It is thus settled proposition of law that a judgement, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye of law. Such a judgement, decree or order--by the first court or by the final court--has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings. "The Court defined "fraud" as an act of deliberate deception with the design of securing something by taking unfair advantage of another. In fraud one gains at the loss and cost of another. Even the most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam." 12. This view has been reiterated by the Apex Court in the case of K.D. Sharma vs. Steel Authority of India Limited, (2008) 12 SCC 481. 13. In Meghmala and others vs. G. Narasimha Reddy and others (2010) 8 SCC 383, the Supreme Court in paragraphs 33 and 34 has observed as under:- "33. Fraud is an intrinsic, collateral act, and fraud of an egregious nature would vitiate the most solemn proceedings of courts of justice. Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. The expression "fraud" involves two elements, deceit and injury to the person deceived. It is a cheating intended to get an advantage. [Vide Vimla (Dr.) v. Delhi Admn. AIR 1963 SC 1572, Indian Bank v. Satyam Fibres (India) (P) Ltd. (1996) 5 SCC 550, State of A.P. v. T. Suryachandra Rao (2005) 6 SCC 149, K.D. Sharma v. SAIL (2008) 12 SCC 481 and Central Bank of India v. Madhulika Guruprasad Dahir (2008) 13 SCC 170] 34. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to 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 res judicata. Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false. Suppression of a material document would also amount to a fraud on the court. (Vide Gowrishankar v. Joshi Amba Shankar Family Trust (1996) 3 SCC 310, Ram Chandra Singh v. Savitri Devi (2003) 8 SCC 319, Roshan Deen v. Preeti Lal (2002) 1 SCC 100, Ram Preeti Yadav v. U.P. Board of High School & 4 All. Munna Lal Vs State Of U.P. & Ors. 165 Intermediate Education (2003) 8 SCC 311 and Ashok Leyland Ltd. v. State of T.N. (2004) 3 SCC 1)." 14. The Apex Court has reiterated the same view in Inderjit Singh Grewal Vs. State of Punjab and another 2011 (3) ACR 3544 (SC). 15. This Court has also taken the same view in Shiv Shankar Vs. Board of Revenue U.P. At Allahabad and 3 others, 2014 (10) ADJ 42. 16. In view of the law laid down by the Apex Court, the order dated 29.1.2016 passed by the Deputy Commissioner Food Varanasi Division Varanasi in Appeal No. 60 of 2012 (Om Prakash Vs. State of U.P.) cannot be sustained in the eye of law, it is hereby quashed. 17. So far as petitioner's right being subsequent allottee is concerned, this Court in number of cases has held that the subsequent allottee has no right to file writ petition. Reference may be had to the judgments of this Court in Nasarudin Vs. State of U.P. and Ors. 2015 (11) ADJ 557, Smt. Javitri Devi Vs.State of U.P. and others( (WRIT - C No. - 63117 of 2015, decided on 18.11.2015), Shyam Singh Vs. State Of U.P. And 4 Others (WRIT - C No. - 63882 of 2015, decided on 4.12.2015) and Roop Kishor Vs. State Of U.P. And 4 Others (Writ-C No.68087 of 2015, decided on 18.12.2015). 18. The view taken by this Court although in different case has been approved by the Apex Court in Poonam Vs. State of U.P. and Others (supra), in view of that, no relief can be granted to the petitioner. 19. The writ petition is allowed in part as indicated above. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 26.04.2016 BEFORE THE HON'BLE RAJAN ROY, J. Service Single No.- 7108 Of 2016 Munna Lal ...Petitioner Versus State Of U.P. & Ors. ...Respondents Counsel for Petitioner Shrawan Kumar Verma Counsel for Respondents