# Ram Nath @ Ram Nath Yadav v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 338
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-05-20
- **Case number:** Writ C No. 68553 of 2015
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-nath-ram-nath-yadav-v-state-of-u-p-ors-45126
- **Pages:** 8

## Headnote

A. Civil Law - Fair price shop - Cancellation -
GO dated 17.08.2002 - Condition no. 10-Gha -
License obtained by the petitioner concealing
the criminal case pending against him - Effect
- Held, the petitioner having not disclosed the
pendency of the criminal case in which he was
already facing charge sheet, the petitioner
conveniently and deliberately concealed this
fact and this conduct of his amounts to a fraud
- The petitioner would not be entitled to any
benefit coming out of the same. His fair price
shop license has rightly been cancelled. (Para
17 and 18)
Writ petition dismissed. (E-1)
Cases relied on :-

## Text

338 INDIAN LAW REPORTS ALLAHABAD SERIES
receipt of copy of this order downloaded from
the official website of the High Court of
Judicature at Allahabad along with fresh copy of
representation. The concerned Court/ Authority/
Official shall verify the authenticity of such
computerized copy of the order from the official
website of High Court Allahabad and shall make
a declaration of such verification in writing.

III. The petitioner shall be given an
opportunity of hearing before any order is
passed on the application for waiver made by the
petitioner.

20. The writ petition is allowed to the
extent indicated above.
----------
(2021)12ILR A338
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.05.2019

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ C No. 68553 of 2015

Ram Nath @ Ram Nath Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shiv Shankar Pd Gupta, Sri Sunil Kumar
Dubey

Counsel for the Respondents:
C.S.C., Sri Bal Mukund Singh, Sri Sunil Kumar
Chaudhari, Sri Anil Bhushan

A. Civil Law - Fair price shop - Cancellation -
GO dated 17.08.2002 - Condition no. 10-Gha -
License obtained by the petitioner concealing
the criminal case pending against him - Effect
- Held, the petitioner having not disclosed the
pendency of the criminal case in which he was
already facing charge sheet, the petitioner
conveniently and deliberately concealed this
fact and this conduct of his amounts to a fraud
- The petitioner would not be entitled to any
benefit coming out of the same. His fair price
shop license has rightly been cancelled. (Para
17 and 18)
Writ petition dismissed. (E-1)
Cases relied on :-
1. Smt. Raj Kumari Singh Vs St. of U.P. & ors.; 2011
(3) ALJ 140
2. Misc. Single No. 8033 of 2013; Bajrangi Tiwari Vs
St. of U.P. & ors. decided on 05.03.2018
3. Shrishti Dhawan Vs Shaw Bros; (1992) 1 SCC 534 :
AIR 1992 SC 1555
4. Meghmala Vs G. Narasimha Reddy; (2010) 8 SCC
383
(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard learned counsels for the parties.

2. By means of present writ petition, the
petitioner has challenged the order dated
11.08.2014, whereby, the allotment of fair price
shop of the petitioner has been cancelled as well
as the order dated 27.11.2015 passed by the
appellate rejecting the appeal.

3. Briefly stated facts of the case are that
the petitioner is a resident of village Gaura,
Block Meh Nagar, District Azamgarh applied
for grant of fair price shop pursuant to the
advertisement issued
on
10.08.2013.
The
condition as contained in the advertisement
regarding the eligibility issued by the SubDivisional Magistrate in the advertisement dated
10.08.2013 were five in nature; (i) a candidate
must have the available money of Rs. 40,000/-
so that pursuant to the allotment he could lift the
commodities; (ii) must be of general good
reputation; (iii) must be educated enough to
maintain the daily business transactions; (iv)
must be of 21 years of age and there must not be
any other shop allotted to any other member of
his family; and (v) must be permanent resident
of the village.
11 All. Ram Nath @ Ram Nath Yadav Vs. State of U.P. & Ors.
339

4. Pursuant to the above advertisement, the
petitioner applied and was one amongst the 18
applicants; the petitioner was selected and was
allotted fair price shop with an agreement
entered between the State authorities and the
petitioner under the order dated 27.10.2013
passed by the Sub-Divisional Magistrate. It
appears that one Vinay Kumar Singh along with
4th respondent filed a writ petition before this
Court bearing Writ - C No. 62185 of 2013
questioning the allotment of the fair price shop
to the petitioner inter alia on the ground that
there was a criminal case registered against the
petitioner as Case Crime No. 748 of 2007, under
Sections 147, 148, 149, 341, 353, 204, 504, 506,
188 IPC and section 7 of the Criminal Law
Amendment Act at P.S. Meh Nagar, Azamgarh
and which fact according to those petitioners
present petitioner who was 8th respondent in the
said
case
had
conveniently
concealed.
According to those complainants as per the
Government Order dated 17.08.2002 which
provided for eligibility criterian had provided
that a candidate should not have a criminal case
registered against him and / or should not be a
convicted person in any criminal case. The
Division Bench took notice of the argument of
the counsels for the parties, particularly the
argument advanced by the counsel of the present
petitioner who was 8th respondent in the said
case, that there were many men in the name of
Ram Nath in the village and therefore, it could
not be said that the case had been registered
against him or that he was involved in the said
criminal case. The writ petition was finally
disposed of vide order dated 06.05.2014
directing the Sub-Divisional Magistrate, Meh
Nagar, Azamgarh to decide the disputed
question of facts regarding registration of FIR
and as to whether the documents were duly filed
by 8th respondent in the said case, for the
purposes of allotment and were available on
record on the date of selection or not and it was
further
provided
that
the
Sub-Divisional
Magistrate shall afford proper opportunity of
hearing to the parties. The relevant portion of the
judgment/ order of this Court dated 06.05.2018
is reproduced hereunder:

"The submission of Sri Anil Bhushan
against the impugned order is mainly on two
grounds. He states that the last date for filing
the relevant documents under the advertisement
issued in Rashtriya Sahara newspaper was
16.08.2013, however, while referring to the list
prepared by the Committee appointed for such
consideration filed as Annexure-4 to the writ
petition dated 16.08.2013 clearly indicates that
the Respondent No.8, Ram Nath Yadav had not
filed his income certificate, caste certificate,
domicile certificate, character certificate and
earnest money. He states that in the absence of
the necessary requirement as contemplated
under the advertisement the shop could not have
been allotted to the Respondent No.8, Ram Nath
Yadav.

The second submission is that Ram
Nath Yadav is facing a criminal charges and
therefore in light of the Government Order dated
17.08.2002 filed as Annexure No.8 to the writ
petition, the Respondent No.8 against whom
criminal proceedings are pending was not
eligible. He submits that neither of these two
conditions were considered by the Committee
appointed for second fair price shop in the
village and hence the impugned order is not in
accordance with law.

Sri Ashish Agrawal, learned counsel
for the Respondent No.8 has disputed the
submission and submits that the time of
submitting the relevant certificates was extended
inasmuch as the same facility was extended to
the petitioner himself and therefore the
petitioner cannot now assail the impugned order
on that ground. Insofar as the criminal
proceedings against the Respondent No.8 are
concerned Sri Ashish Agrawal denies the same
on the ground that in the F.I.R. the name of Ram
Nath is there and there are several persons by
the name of Ram Nath in the village and
340 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore it is not the Respondent No.8, Ram
Nath Yadav son of Udai Yadav who is the
person mentioned in the F.I.R.

We have considered the submission of
learned counsel for the parties and perused the
record. Highly disputed question of fact has
been raised in the writ petition by the petitioner
as
also
the
contesting-Respondent
No.8.
Whether the time for filing the documents before
the Committee were extended after 16.08.2013 is
a fact which can be determined only from a
perusal of the record of the proceedings which
are not available before us in this writ petition.

Secondly, whether the Respondent
No.8, Ram Nath Yadav is the person mentioned
in the said F.I.R. so as to be disqualified under
the Government Order is also a question of
consideration after sufficient evidence has
been brought before the Authority and
considered by it. Such evidence being not
available on the record we cannot adjudicate
such
highly
disputed
question
of
fact.
Therefore, this writ petition is finally disposed
of by providing that the petitioner as also the
Respondent No.8, Ram Nath Yadav may
approach the Sub Divisional Magistrate,
Mehnagar raising their respective grievance
against the impugned order dated 22.10.2013
within a period of four weeks from today
alongwith a certified copy of this order and in
case the same is done the Respondent No.5,
Sub Divisional Magistrate, Mehnagar, District
Azamgarh
should
afford
opportunity
of
hearing
to
the
petitioner
as
also
the
Respondents No.8 & 9 and having done so
decide the said objections in accordance with
law within one month thereafter.The impugned
order will be subject to such decision taken by
the Sub Divisional Magistrate, Mehnagar,
District Azamgarh.

It is made clear that we have not
expressed our opinion on the merits of the
submission made by learned counsel for the
parties against the impugned order dated
22.10.2013 and that has to be considered by the
Sub Divisional Magistrate, Mehnagar, District
Azamgarh in accordance with law.

The writ petition is accordingly
disposed of.

No order is passed as to costs."

(Emphasis added)

5. The Sub-Divisional Magistrate, in
compliance of the order of this Court, directed
the petitioner to file his objection to the
complaint made along with order of the High
Court dated 15.05.2014 (annexure No. 7 to the
writ petition), the petitioner submitted reply on
11.06.2014. The Sub Divisional Magistrate
ultimately after perusal of the record and the
objections, found that the petitioner had in fact
concealed the material fact regarding registration
of criminal case and, therefore, he violated
condition no. 10-Gha of the Government Order
dated 17.08.2002 and so the fair price shop
license
was
cancelled
vide
order
dated
11.08.2014. The petitioner preferred appeal,
which met the same facts.

6. The argument of learned counsel for the
petitioner is two fold: (a) the petitioner did not
conceal
any
material
fact
because
the
information that he was required to furnish
pursuant to the advertisement dated 10.08.2013,
had been duly furnished by him and nothing had
come in the impugned order that he did not
furnish opinion as per the advertisement; and (b)
that the fair price shop license of the petitioner
could not be cancelled merely because of
registration of criminal case in the light of the
judgment of the Division Bench of this Court in
the case of Smt. Raj Kumari Singh v. State of
U.P. and others 2011 (3) ALJ 140; has placed
heavy reliance to paras 5 and 8 of the said
judgment and also the Full Bench judgment of
this Court in Misc. Single No. 8033 of 2013,
Bajrangi Tiwari v. State of U.P. and others
(decided on 05.03.2018), wherein it has been
held that fair price shop of a licensee could not
be
cancelled
resorting
to
the
procedure
11 All. Ram Nath @ Ram Nath Yadav Vs. State of U.P. & Ors.
341
prescribed under the Government Order of the
year 2002 as the subsequent Government Order
has come on 29.07.2014 and any action should
be taken under the said Government Order only.

7. The Full Bench decision according to
learned counsel for the petitioner reiterates on both
the questions referred before the said Full Bench
whether lodging of criminal case would result in
cancellation of fair price shop license and also
whether the fair price shop license could have been
cancelled in the light of para 10 of the Government
Order dated 07.08.2002 and the Full Bench have
negatived both the questions referred. Thus, the
argument is that the fair price shop license of the
petitioner has been wholly illegally cancelled for
utter disregard of the rules and the authorities have
acted in clear error of law in the light of Division
Bench and Full Bench judgments of this Court
(supra).

8. Per contra, learned counsel for the
respondents is that the factually the position in the
present case is different because it is a case where
license has been obtained by concealing material
facts and therefore, the judgments cited would not
be applicable in the present case. He has further
argued that the fraud vitiates every solemn
proceedings and no right can flow from fraud.
While advancing the argument on the said
premise, learned counsel for the respondents
reiterates that for the purposes of allotment of fair
price shop license, it is the rule that will govern the
procedure and not the advertisement. He submits
that advertisement lays down only five conditions
but ultimately the authority while evaluating an
application has to examine as to whether the
application is in line with the rules or not. He
argues that no one can be permitted to take the plea
of ignorance of law. He further argues that before
the Division Bench the argument was advanced
that there were many men in the name of Ram
Nath and petitioner would not be the one named in
the first information report, whereas, on the date of
argument being advanced on behalf of the
petitioner
before
the
Division
Bench
i.e.
06.05.2014, the charge sheet had already been
submitted in the said criminal case and the
petitioner was very much aware of the said fact.
Therefore, according to him it was a case of
deliberate attempt to mislead the court as well.
According to him, over all conduct of the
petitioner in the present case has been of hide and
seek and the plea of innocence deserves to be
rejected.

9. Having heard learned counsels for the
parties and having perused the records, I find that
the basic question that arises for consideration is
whether a fair price shop license could have been
granted to the petitioner while he submitted the
application concealing the fact that there was a
criminal case registered against him. The
Government Order of the year 2002 lays down the
selection procedure and in the said Government
Order, one of the conditions vide Clause 10D(Gha) is that there should not be any criminal
case registered and/ or one should not be
convicted. The relevant condition 10 of the
Government Order is reproduced hereunder:

"10. ग्राणीण क्षेत्र में रािन की दुकानोां का
चयन धनम्नधलक्तखत अधनवायम अहमताओां एवां ितो को
दृधष्टगत रखते हुए धकया जायेगािः-

(क) अभ्यथी के खाते में कम से कम 40
हजार रूपया उपलब्ध हो ताधक वह अपनी दुकान को
आवांधटत एक माह की सामग्री का एक बार में उठान
करने के धलए आधथमक रूप से सक्षम हो।

(ख) सामान्य ख्याधत अिी हो।

(ग) धिधक्षत हो ताधक वह दुकान का धहसाब
धकताब सही रूप से रख सकें।

(घ) अभ्यथी के धवरूि कोई आपराधिक
मामले पांजीकृत न हो और न ही वह धकसी
आपराधिक मामले में दक्तित धकया गया हो।

(ड़) अभ्यथी की आयु 21 वषम से अधिक हो
और पररवार में धकसी अन्य सदस्य के नाम कोई
दुकान आवांधटत न हो।
342 INDIAN LAW REPORTS ALLAHABAD SERIES

(च) दुकानदार स्थानीय धनवासी हो।

(छ) अभ्यथी द्वारा 1000/- रूपये की
अनेसट मनी का बैक डराफ्ट धजलापूधतम अधिकारी के
पक्ष में जमा धकया जायेगा। उपरोि अनेस्ट मनी
दुकानोां के आवांटन की क्तस्थधत में प्रधतभूधत राधि में
समायोधजत कर ली जायेगी।

(ज) दुकानोां की धनयुि की क्तस्थधत में
अभ्यथी को 5000/- रूपये की प्रधतभूधत जमा करनी
होगी तथा 100/- रूपये का नानजूधडधियल स्टाम्प
पेपर लगाना होगा। यह प्रधतभूधत केवल नये धनयुक्ति
होने वाले दुकान के अभ्यधथमयो से ली जायेगी। धजनकी
दुकान पूवम से ही धनयुि है और सांचाधलत है उनसे नये
दर पर प्रधतभूधत नहीां जमा करवायी जायेगी।

(झ) यधद दुकानदार अिी ख्याती का हो
तो उसकी मृत्यु के उपरान्त दुकान का आवांटन उसके
आधश्रत को करने पर धवचार धकया जा सकता है।
आधश्रत का तात्पयम पत्नी, पुत्र तथा अधववाधहत पुत्र से
है।"

10. The petitioner in the writ petition does
not dispute that the charge sheet in the said
criminal case in which he was named, was
submitted as far after back as on 11.02.2008 i.e.
almost
more
than
5
years
before
the
advertisement and the fact also that the
summoning order was issued against him on
02.04.2008. Petitioner has brought on record the
order
dated
30.03.2017
by
means
of
supplementary
affidavit
passed
by
the
Additional Chief Judicial Magistrate, Court No.
12, Azamgarh by which in the said criminal case
against all the accused persons including the
petitioner, have been acquitted.

11. Thus, the registration of the criminal
case was well within the knowledge of the
petitioner on the date of advertisement and now
he cannot take the plea that he was not aware of
the said criminal case. Even in the reply to the
complaint made in pursuance to the order of this
Court in Writ - C No. 62185 of 2013, the
petitioner has nowhere stated that he was not
aware about the criminal case at the time he had
made an application for allotment of fair price
shop. So the plea, therefore, taken even before
the Division Bench on 06.05.2014 on his behalf
was nothing but an attempt to mislead the Court
on facts.

12. The question now is whether the
Division Bench in the case of Smt. Raj Kumari
Singh (supra) is attracted in the present case or
not. In the said case, the factual position was
different; the fair price shop dealer was already
enjoying the license when the first information
report came to be lodged under Section 3/7 of
Essential Commodities Act on 01.09.2009 and it
is on the basis of said FIR, the fair price shop
license in the said case was cancelled. It is in
that above factual background that the Court
held that mere lodging of FIR would not result
in an automatic conviction of the fair price shop
dealer and therefore, it would not be justified in
law to cancel the fair price shop license on that
ground. Para 5 and 8 of the said judgment are
quoted herein under:

"5. Nothing has been brought to our
attention that the said judgment has been
overruled. Even otherwise, we are of the opinion
that the said conclusion cannot be faulted for the
reason that mere filing of a F.I.R. cannot result
in holding a fair price shop owner guilty of the
offences charged. If there be a conviction, then it
is possible to proceed, based on the conviction
and not otherwise. In case if the F.I.R. is lodged,
it is still open to the respondents to proceed by
leading independent evidence and statements of
the persons recorded.

8. Even otherwise we may point out
that a reading of the order dated 10.8.2010
discloses total non application of mind. The said
order purports to cancel the license merely on
the ground of lodging of an F.I.R. and that
suspension is going on for a long time thereby
causing
inconvenience
in
distribution
of
essential commodities to the card holders. The
11 All. Ram Nath @ Ram Nath Yadav Vs. State of U.P. & Ors.
343
said reasons cannot be justified in law to cancel
the dealership."

13. From the bare perusal of the law
discussed by their Lordships in the said case, it is
nowhere held dealing with the aspect of the matter
that whether a fair price shop license if obtained
concealing the material fact of a pending criminal
case would also not be liable to cancellation, and
therefore, in the considered opinion of the Court,
the legal position as has emerged in the said
judgment is not attracted in the present case and
the judgment is of no help to the petitioner.

14. Coming to the Full Bench judgment of
this Court in the case of Bajrangi Tiwari (supra),
facts of the case are noticing that even in the said
case while the Full Bench was seized with the two
questions framed therein a fair price shop dealer
was already enjoying the fair price shop license
since long when on 03.05.2011 some villagers
made a complaint with regard to irregularities in
distribution of essential commodities from his fair
price shop and on the said basis some inquiry was
conducted and report was submitted on14.06.2011
and license was suspended. Ultimately, it was
cancelled on the ground tht the petitioner was
involved in some case in Case Crime No. 267 of
2011 under various sections of IPC including
section 3(2)5 SC/ST Act and therefore, the
question arose before the Full Bench whether in
such circumstances where a person enjoying fair
price shop license since long and FIR came to be
registered subsequently in the year 2011, the
Prescribed Authority was justified in cancelling the
fair price shop license taking recourse to the
provsiions of Section 10-D of the Government
Order. The two questions framed by the Full
Bench are reproduced hereunder:

"1. Whether the fair price shop licence
can be cancelled merely on lodging of a criminal
case against the licencee?; and

2. Whether, while passing any such
order the Government Order dated 17.8.2002,
particularly para - 10 of said Government Order
would be applicable/ considered or not?"

15. The Full Bench discussed the law at
length and considered the two Government
Orders dated 17.08.2002 and 29.07.2014 and
came to record
that the
procedure
for
cancellation of fair price shop license has to be
followed only in the light of Government Order
dated 29.07.2014 and not 17.08.2002.

16. Having gone through the judgment of
Full Bench, I find that the proposition laid down
by the Full Bench is absolutely correct and in
tune with the provisions of two Government
Orders. The first deals with the eligibility
criterian and grant of license whereas, the
second one deals with the procedure to be
followed for cancellation of such license. The
Full Bench answered both the questions in
negative: once the fair price shop license has
been given, the same cannot be cancelled taking
recourse to the provisions of section 10-D that a
criminal case is registered against the licensee;
and that mere lodging of the criminal case would
not result in automatic cancellation. The wide
proposition of law as has been discussed and
laid down by the Full Bench of this Court only
leads to one conclusion that in case if the fair
price shop license is already being enjoyed by a
licensee, such a license should be cancelled only
by resorting the procedure prescribed under the
Government Order of 2014, but here the
question is different. The Full Bench has not
held
that
the
Government
Order
dated
17.08.2002
was
bad
or
was
absolutely
inapplicable. The two Government Orders deal
with different situation: one is for the purposes
of eligibility criterian and allotment; and the
other is for cancellation. Here I am dealing with
the case where allotment has been obtained by
concealing the material fact as one of the
conditions under the Government Order for the
purposes of allotment was that one should not
have criminal case registered against him. The
344 INDIAN LAW REPORTS ALLAHABAD SERIES
word 'and' should be read as 'or' appearing under
Section 10-D of the Government Order and
therefore, the condition is that if a crimianl case
is registered against a person, he would be
disqualified and/ or a person if convicted in a
criminal case, the said person would also be
equally disqualified.

17. Here is a case where concealment or
non disclosure for that matter of the criminal
case against the petitioner has been made in his
application. The advertisement would abide by
the ultimate rules that are framed and the Full
Bench having not held that for the puproses of
allotment the procedure under the Government
Order of 2002 would not be followed, I am of
the considered opinion that the Government
Order in the present case is fully attracted. The
petitioner having not disclosed the pendency of
the criminal case in which he was already facing
charge sheet, the petitioner conveniently and
deliberately concealed this fact and this conduct
of his amounts to a fraud and therefore, in view
of the Apex Court judgment in the case of
Shrishti Dhawan v. Shaw Bros. (1992) 1 SCC
534 : AIR 1992 SC 1555, wherein it has been
held that fraud and collusion vitiate even the
most solemn proceedings in any civilised system
of jurisprudence. It has been defined as an act of
trickery or deceit, every order obtained by fraud
or benefit taken under fraud cannot confer any
right or create any decision. However, in the
case of Meghmala v. G. Narasimha Reddy
(2010) 8 SCC 383 the Apex Court, in paragraph
nos. 32 to 36 has observed thus:

"32. The ratio laid down by this Court
in various cases is that dishonesty should not be
permitted to bear the fruit and benefit to the
persons
who
played
fraud
or
made
misrepresentation and in such circumstances the
Court should not perpetuate the fraud. (See
District Collector & Chairman, Vizianagaram
Social Welfare Residential School Society,
Vizianagaram & Anr. Vs. M. Tripura Sundari
Devi (1990) 3 SCC 655; Union of India & Ors.
Vs. M. Bhaskaran (1995) Suppl. 4 SCC 100;
Vice Chairman, Kendriya Vidyalaya Sangathan
& Anr. Vs. Girdharilal Yadav (2004) 6 SCC
325; State of Maharashtra v. Ravi Prakash
Babulalsing Parmar (2007) 1 SCC 80; Himadri
Chemicals Industries Ltd. Vs. Coal Tar Refining
Company AIR 2007 SC 2798; and Mohammed
Ibrahim & Ors. Vs. State of Bihar & Anr. (2009)
8 SCC 751).

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 Dr. Vimla Vs. Delhi
Administration AIR 1963 SC 1572; Indian Bank
Vs. Satyam Fibres (India) Pvt. Ltd. (1996) 5
SCC 550; State of Andhra Pradesh Vs. T.
Suryachandra Rao AIR 2005 SC 3110; K.D.
Sharma Vs. Steel Authority of India Ltd. & Ors.
(2008) 12 SCC 481; and Regional Manager,
Central
Bank
of
India
Vs.
Madhulika
Guruprasad Dahir & Ors. (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 S.P. Changalvaraya Naidu (supra);
Gowrishankar & Anr. Vs. Joshi Amba Shankar
11 All. M/s P.N. Garg, Engg. & Contractors, Jhansi & Anr. Vs. Chief Engineer, Bhopal Zone, Sultania
 Infantry Lines, Bhopal & Ors.
345
Family Trust & Ors. AIR 1996 SC 2202; Ram
Chandra Singh Vs. Savitri Devi & Ors. (2003) 8
SCC 319; Roshan Deen Vs. Preeti Lal AIR 2002
SC 33; Ram Preeti Yadav Vs. U.P. Board of
High School & Intermediate Education AIR
2003 SC 4628; and Ashok Leyland Ltd. Vs. State
of Tamil Nadu & Anr. AIR 2004 SC 2836).

35. In kinch Vs. Walcott (1929) AC
482:1929 AII ER Rep 720 (PC) it has been held
that

"....mere constructive fraud is not, at all
events after long delay, sufficient but such a
judgment will not be set aside upon mere proof
that the judgment was obtained y perjury."

Thus, detection/discovery of constructive
fraud at a much belated stage may not be sufficient
to set aside the judgment procured by perjury.

36. From the above, it is evident that
even in judicial proceedings, once a fraud is
proved, all advantages gained by playing fraud
can be taken away. In such an eventuality the
questions of non-executing of the statutory
remedies or statutory bars like doctrine of res
judicata are not attracted. Suppression of any
material fact/document amounts to a fraud on the
court. Every court has an inherent power to recall
its own order obtained by fraud as the order so
obtained is non est."

18. Thus, in view of the above legal position
and the factual position emerging in the present
case, the petitioner having obtained the fair price
shop license by concealing material fact, has
virtually played fraud and would not be entitled to
any benefit coming out of the same. The
petitioner's fair price shop license has rightly been
cancelled. The plea of the petitioner that he was
ignorant of rules would not be acceptable as the
legal position, as has rightly been argued by
learned counsel for the resopndent, is that nobody
can take the plea of ignorance of law or the rules.

19. The further plea of the petitioner that a
case was registered by the State and the State
found it to be not appropriate and had proceeded
to lift the same, would not change the situation
either. The fact remains that the petitioner had
obtained the license of the fair price shop and on
the said date the charge sheet was pending
against him and it would be sufficient enough to
hold that the fair price shop license had been
obtained by such means which would not have
the approval of law.

20. However, this Court at the same time
holds that since the crimianl case against the
petitioner has been lifted by the State
prosecution and the Chief Judicial Magistrate
has discharged him under its order dated
12.03.2017 in criminal case arising out of case
crime no. 748 of 2007, it is hereby provided that
in future the said crimianl case will not come in
the way of petitioner in applying for fair price
shop license, if any advertisement is issued and
the applications are invited.

21. Subject to the aforesaid observations,
the writ petition fails and is accordingly
dismissed.
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(2021)12ILR A345
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.11.2021

BEFORE

THE HON'BLE JAYANT BANERJI, J.

Arbitration & Concill. Appl. U/S 11(4) No. 92 of 2021

M/s P.N. Garg, Engg. & Contractors, Jhansi &
Anr. ...Applicants
Versus
Chief Engineer, Bhopal Zone, Sultania Infantry
Lines, Bhopal & Ors. ...Opp. Parties.

Counsel for the Applicants:
Ms. Aarushi Khare

Counsel for the Opp. Parties:
--