Smt. Awadha vs State Of U.P Thru Secy Food & Civil ...
2017 Latest Caselaw 2809 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 6
 
Case :- MISC. SINGLE No. - 8179 of 2016
 

 
Petitioner :- Smt. Awadha
 
Respondent :- State Of U.P Thru Secy Food & Civil Supply Lko & Ors
 
Counsel for Petitioner :- Sanjay Kumar Mishra
 
Counsel for Respondent :- C.S.C,Mahmood Alam,Moti Chand Yadav
 

 
Hon'ble Anil Kumar,J.

Heard Sri Sanjay Kumar Mishra,  learned counsel for the petitioner, learned Standing Counsel for opposite parties no.1 to 4, Sri Mahmood Alam, learned counsel for opposite party no.5 and perused the record.

By means of present writ petition, petitioner has challenged the orders dated 22.4.2015 passed by opposite parties no. 4 by which petitioner's license/ agreement to run the fair price shop has been cancelled and the order dated 16.2.2016 passed by opposite party no.2 by which the appeal filed by the petitioner against the order dated 22.4.2015 has been dismissed.

Sri Mahmood Alam, learned counsel appearing for opposite party no.5 submits that  petitioner has earlier  filed Writ Petition No.3548(MB) of 2015  and Writ Petition No.7672 (MS) of 2016 and the said fact has  been concealed by the petitioner  while filing the present writ petition before this Court ,so the present writ petition is liable to be dismissed on the sole ground.

Sri Sanjay Mishra, learned counsel for the petitioner  submits that so far as Writ Petition No.3548 (MB) of 2015 ( Smt. Awadha Devi Vs. State of U.P. and others)  is concerned, the same has been filed by the petitioner challenging the order dated 6.1.2015 passed by licensing authority  by which petitioner's license to run the fair price shop has been placed under suspension. The said writ petition was dismissed vide order dated 29.4.2015 with liberty to  the petitioner to file an appeal. He further submits that thereafter petitioner filed an appeal ( Appeal no.284 of 2015)  under clause 28(3) of the Uttar Pradesh Anusuchit Vastu Vitran Adesh,2004, the same was dismissed. Thereafter petitioner filed Writ Petition no.7672 (MS) of 2016 thereby challenging the order passed by licensing authority as well as appellate authority. The same was dismissed on 11.4.2016 by this Court  with the following directions:-

" Sri Sanjay Mishra, learned counsel for the petitioner  wants to withdraw this petition with liberty to file fresh petition. Sri M.C. Yadav appears for the respondents.

Writ petition is dismissed as withdrawn with liberty as prayed for."

Accordingly it is submitted by learned counsel for the petitioner that at the time of passing of order dated 11.4.2016 learned counsel representing opposite party no.5 /Ashok Kumar was present and a liberty was given  to the petitioner to withdraw the writ petition ( Writ Petition No.7672(MS) of 2016) as prayed for.

Sri Sanjay Mishra, learned counsel for the petitioner submits that thereafter present writ petition  has been filed  by petitioner challenging the order dated 22.4.2015 passed by licensing authority  and the order datd 16.2.2016 passed by appellate authority which was earlier challenged by the petitioner in Writ Petition No.7672(MS) of 2016 and Sri Ashok Kumar was impleaded as opposite party no.5 . A copy of the writ petition was also given to opposite party no.5 at the time of filing of the same, so in view of the said fact there is no necessity on the part of the petitioner to write in the writ petition, so the petitioner has written in para -1 of the writ petition as under:-

" That the petitioner declares that no writ petition has been filed by her in respect of the subject matter contained in this writ petition in this Hon'ble Court either  at Allahabad or at Lucknow and this is first writ petition being filed by the petitioner."

Accordingly, it is submitted by learned counsel for the petitioner that said mistake on the part of petitioner is bona fide mistake without any motive behind  in order to conceal in respect to filing of earlier writ petition.

Sri Mahmood Alam, learned counsel for opposite party no.5 submits that it is mandatory on the part of the petitioner to state in the writ petition in respect to earlier writ petition as per Allahabad High Court Rules ,1952 and once the petitioner has not mentioned  in respect to filing of earlier writ petition  by filing present writ petition  the same is nothing but amounts to concealment of fact and on the said ground present writ petition is liable to be dismissed. In this regard he has placed reliance on the decision given by this Court in the case of Ram Naresh Vs. Stat pf U.P. and others, 2016(34) LCD 2703.

I have learned counsel for the parties and gone through the record.

In view of the facts stated herein above it is not disputed between the parties that the petitioner has earlier  approached this Court by filing Writ Petition No.7672 (MS) of 2016 in which  the order dated 16.2.2016( Annexure no.2) passed by appellate authority and the order dated 22.4.2015 ( Annexure no.4) passed by licensing authority was under challenge , same was dismissed on 11.4.2016 with liberty to file fresh.

In view of the above said back ground petitioner  has filed present Writ Petition  thereby challenging the aforesaid orders dated 16.2.2016  and 22.4.2015 which was also challenged by him in Writ Petition no.7672(MS) of 2016. However while filing the present writ petition in para -1 of the writ petition, he has stated that he has not filed any writ petition on the subject matter before this court at Allahabad or at Lucknow.

As per Allahabad High Court Rules 1952 it is mandatory on the part of the petitioner to state  in para-1 of the writ petition whether he has filed any writ petition on the same cause of action or not earlier.

In the present case petitioner in para -1 of the writ petition has stated that it is first writ petition being filed by the petitioner. The said assertion on the part of the petitioner  is a false averments made by him on an affidavit as he has also approached this Court by filing writ petition no.7672(MS) of 2016 thereby challenging the impugned orders  which was dismissed with liberty to file a fresh. Said fact ought to be stated in para-1 of the writ petition.

Thus the arguments which advanced by learned counsel for the petitioner that the same is a bona fide mistake by not mentioning  in filing the earlier writ petition  as the said fact is in the knowledge of opposite party no.5  to whom he has given copy of the writ petition, is not acceptable because as per settled proposition of law that  if law provides a particular thing  to be done in  a particular manner ,same is to be done in the same manner  and same cannot be bye passed , so it is mandatory  on the part of the petitioner  to state in para -1 of the writ petition  in respect to filing of earlier  writ petition which he did not . The said act  on the part of petitioner is nothing but amount to suppuration  of true and correct fact as he comes with clean hand rather the said action on the part of petitioner is nothing but amounts to playing fraud with oblique motive( see S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, AIR 1994 SC 853. In Lazarus Estate Ltd. Vs. Besalay, 1956 All. E.R. 349)

In Andhra Pradesh State Financial Corporation Vs. M/s GAR Re- Rolling Mills & Anr. , AIR 1994 SC 2151; and State of Maharashtra and Ors Vs. Prabhu, (1994) 2 SCC 481, the Apex Court has observed  that a writ court , while exercising its equitable jurisdiction , should not act as to prevent  perpetration of a legal fraud as the Courts are obliged to do justice by promotion  of good faith. " Equity is, also , known to prevent the law from the crafty evasions and subletties invented to evade law."

Hon'ble the Apex Court in Smt. Shrisht Dhawan Vs. Shaw Brothers, AIR 1992 SC 1555 had held as under:-

"Fraud and collusion vitiate even the most solemn proceedings  in any civilized system of jurisprudence. It is a concept descriptive of human conduct."

In United India Insurance Co. Ltd. Vs. Rajendra Singh and others, (2000) 3SCC 581 , the Apex Court observed that " Fraud and justice never dwell together" ( fraus et jus nunquam cohabitant) and it is a pristine maxim which has never lost it temper over all these centuries.

The ratio laid down by the Supreme Court in various cases is that dishonestly 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 by entertaining the petitions on their behalf .

In Union of India and Ors. Vs. M. Bhaskaran, 1995, Suppl. (4) SCC 100, the Apex Court, after placing  reliance upon and approving its earlier judgement in District Collector & Chairman , Vizianagaram Social  Welfare Residential School Society. Vizianagaram & Anr. Vs. M. Tripura Sundari Devi , (1990) 3 SCC 655, observed as under:-

"If by committing fraud any employment is obtained, the same cannot be permitted to be countenanced by a Court of Law as the employment secured by fraud renders it voidable at the option of the employer."

Similar  view has been reiterated by the Apex court in the case of S. Pratap Singh Vs. State of Punjab, AIR 1964 SC 72; Ram Chandra Singh Vs. Savitri Devi & Ors., (2003) 8 SCC 319; and Vice Chairman , Kendriya Vidyalaya Sangathan and Anr.' Vs. Girdharilal  Yadav, (2004) 6 SCC 325.

Thus, " Fraud" as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take  a definite  determinative stand as a response to the conduct  of the former either by words or letter. It is also well settled that misrepresentation  itself amounts to fraud.

In view of the said fact, writ petition is dismissed  on the ground that petitioner has wilfully and deliberately  has concealed  in respect to  earlier writ petition  and is not entitled for any suitable relief  by this Court  in view of the judgement given by his Court in the case of Ram Naresh ( Supra)  after placing reliance on various judgements given by Hon'ble Apex Court  that in exercising  power under Article 226 of the Constitution of India , the High Court  is not just a court of law , but is also a court of equity and a person who invokes the High Court's jurisdiction  under Article 226 of the Constitution is duty bound to place all the facts before the court without any reservation . If there is suppression of material facts  or twisted facts have been placed before the High Court  then it will be fully justified in refusing to entertain petition filed under Article 226 of the Constitution.

For the foregoing reasons , the writ petition is dismissed.

Order Date :- 31.7.2017

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