Sikandar Khan vs D.D.C. Lucknow & Ors.
2021 Latest Caselaw 3881 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 18
 

 
Case :- CONSOLIDATION No. - 7502 of 2021
 

 
Petitioner :- Sikandar Khan
 
Respondent :- D.D.C. Lucknow & Ors.
 
Counsel for Petitioner :- Mohammad Aslam Khan
 
Counsel for Respondent :- C.S.C.,Parvez Akhtar Khan,Rajeev Prakash Saxena
 

 
Hon'ble Rajnish Kumar,J.

1. Vakalatnama filed by Shri Anu Pratap Singh and Shri Parvez Akhtar Khan, Advocates on behalf of opposite party no.6 and caveator Tarique Yusuf Aziz who have been arrayed as opposite parties no.3 to 5 are taken on record.

2. Heard, Shri Mohd. Arif Khan, learned Senior Advocate assisted by Shri Mohd. Aslam Khan, learned counsel for the petitioner and Shri Anu Pratap Singh, learned counsel for the opposite parties no.3-6.

3. This petition has been filed challenging the order dated 04.02.2021, by means of which the application for recall of the order dated 10.01.1989 filed by the opposite parties no.3 to 6 has been allowed and the revision has been restored on its original number.

4. Submission of learned counsel for the petitioner is that during consolidation proceedings the petitioner had filed an objection, which was rejected therefore the appeal was filed by the petitioner. The same was also dismissed hence the revision was filed before the Deputy Director of Consolidation. In the revision the petitioner and the opposite parties entered into a compromise and on the basis of compromise the revision was allowed by the order dated 19.01.1989. One Naushad Ali had filed an application for recall of the order dated 19.01.1989 and the same was rejected on 10.05.1989. Thereafter the same was not challenged by him. Subsequently one Mohd. Suhel filed a writ petition bearing No.377 (Cons) of 2014 before this Court challenging the order dated 19.01.1989 passed in revision. The writ petition was dismissed. Thereafter the SLP filed by Mohd. Suhel was also dismissed by means of the order dated 14.10.2015. Thereafter the petitioner moved an application under Rule 109-A of the Consolidation of Holdings Rule, 1952. The application was rejected on 03.09.2016. Therefore the petitioner had filed a revision. The revision was allowed on 09.02.2017 and the matter was remanded. Thereafter by means of the order dated 25.04.2017 the application of the petitioner was allowed by the Consolidation Officer and the name of the petitioner was recorded.

5. The opposite parties no.3 to 6 moved an application on 20.06.2018 for recall of the order dated 10.01.1989. The petitioner had filed objection on the maintainability of the application on the ground that the application is not maintainable because the proceedings have already become final up to the Supreme Court. But without considering the same, impugned order dated 04.02.2021 has been passed and the order dated 19.01.1989 has been recalled. Hence the present writ petition has been filed. On the basis of above, submission is that the impugned order is not sustainable and liable to be quashed because the proceedings have already been finalized and the writ petition filed by Mohd. Suhel was dismissed by this Court and thereafter the SLP was also dismissed by the Hon'ble Supreme Court.

6. Learned counsel for the opposite parties no.3 to 6 / caveator submitted that the order dated 19.01.1989 was passed fraudulently on the basis of a forged compromise because no notice of the case was served on the opposite parties, therefore they could not appear and by their forged signatures the compromise was prepared and filed, on the basis of which the order was passed. He further submitted that the petitioner is claiming the land in dispute on the basis of a fraudulent order passed by the Sub-Divisional Officer on 21.07.1953, while the petitioner was born in the year 1959 therefore the petitioner has also not disclosed his age in the present writ petition. The aforesaid proceedings could also not have been drawn by the petitioner.

7. He further submitted that the land in dispute was acquired by the Uttar Pradesh Awas Vikas Parishad and compensation has already been paid to the opposite parties no.3 to 6 and First Appeal, filed by the U.P. Awas Evam Vikas Parishad before this Court, was dismissed on 09.04.2010. He further submitted that the land in dispute was recorded in 1359 Fasli in the name of Musiruddin and thereafter in the name of their successors. Therefore the opposite parties no.3 to 6 who are the successors have got the compensation of the land in dispute also.

8. Learned counsel for the opposite parties also submitted that the opposite party no.3-Tarique, 4-Yusuf and 5-Aziz are one and the same person Tarique Yusuf Aziz but they have been impleaded as three parties. Similarly they were arrayed as opposite parties in the revision filed before the Deputy Director of Consolidation.

9. Learned counsel for the opposite parties also submitted that, as claimed, the objection was filed before the Consolidation Officer while the objections are filed before Assistant Consolidation Officer and in case the matter is not settled the same is referred to the Consolidation Officer as per law. Therefore the objection of the petitioner itself was not maintainable and that too after a notification under Section 52 which was issued in 1965.

10. He also submitted that the order passed by the Deputy Director of Consolidation, Shri B.N. Pandey was forged and ante-dated because Shri B.N. Pandey was never Deputy Director of Consolidation and he had retired from the post of Consolidation Officer on 01.05.1998. In this regard he has relied on a judgment of this Court in the case of Rikhvev and Another Vs. A.D.M. (Finanace) Azamgarh and Others; 2011 (10) ADJ 629 in which it is recorded that Shri Badri Nath Pandey has retired as Consolidation Officer on 01.05.1998.

11. On the basis of above, learned counsel for the opposite parties submitted that after considering the pleadings of the parties and the material available on record the Deputy Director of Consolidation has passed the impugned order in accordance with law and there is no illegality or error in it. Therefore the writ petition is liable to be dismissed.

12. I have considered the submissions of learned counsel for the parties and perused the records.

13. The revision filed by the petitioner, against the order dated 20.08.1986 passed in appeal by Settlement Officer Consolidation and the order dated 09.06.1982 passed by the Consolidation Officer, was allowed by means of the order 19.01.1989 on the basis of alleged compromise entered into between the parties. The opposite parties no.3 to 6 filed an application for recall of order dated 19.01.1989 alleging therein that the grand mother (Nani) of the opposite party no.6 namely Zakiya Khanam W/o Moinuddin who died in the year 1969, was the tenure holder of the land in dispute and after her death it was being recorded in the name of legal heirs and accordingly in the name of Bilkees Begham who died on 20.09.1984. As alleged by the opposite parties the opposite parties no.3, 4 and 5 Tarique, Yusuf and Aziz is one and the same person Tarique Yusuf Aziz and he was working in Kuwait since 1977. The opposite parties had neither any knowledge of the revision nor any notice was served on them. The order dated 19.01.1989 was passed on the basis of a compromise dated 27.12.1988 whereas Bilkees Begham had already died on 20.09.1984. Therefore she could not have signed the said compromise. On coming to know about recording of name of the petitioner in the revenue records, the opposite parties had filed the application alongwith an application for condonation of delay.

14. It has also been alleged that the land in dispute has been acquired by the U.P. Awas Evam Vikas Parishad. The notice of land in dispute for acquisition was issued by the U.P. Awas Evam Vikas Parishad on 17.03.1979 and 20.05.1980 but no objection was filed by the petitioner because he had no concern with the land in dispute. After completion of the formalities the award was made on 02.03.1984 in case No.02 of 1981 and compensation was also paid to the persons recorded in the revenue records i.e. Bilkees Begham @ Kudesiya Anees W/o Late Dr. Anees Ahmad and Tarique Yusuf Aziz S/o Dr. Syed Abdul Aziz. The petitioner had also not filed any objection under Section 9. After the award, a reference was made by Bilkees Begham before the District Judge and the compensation was also enhanced by means of the order dated 03.02.2005. The first Appeal No.64 of 2005 filed by the U.P. Awas Evam Vikas Parishad before the High Court against the judgment and order dated 03.02.2005 was also dismissed by the High Court. Therefore the order passed by the Deputy Director of Consolidation on 19.01.1989 is illegal and without jurisdiction.

15. The petitioner had filed objection against the application alleging therein that the order dated 19.01.1989 was passed after hearing the parties and on the basis of compromise against which the recall was filed by Naushad Ali S/o Shekhawat which was rejected on 10.05.1989. The son of Naushad Ali had filed writ petition no.377 before the High Court which was dismissed on 27.07.2014 and the SLP No.18167 filed against the same was also dismissed therefore the application for recall by the opposite parties is not maintainable.

16. It was also alleged that Bilkees Begham had died on 21.04.1990 and not on 20.09.1984 and she has been shown as alias Kudesiya Anees while there was no alias with her. It was also alleged that Tarique Aziz, Yusuf Aziz and Mohd. Aziz were three sons of Syed Aziz and Bilkees Begham is daughter of Abid Ali. It was also alleged that the opposite parties no.3 to 5 and Bilkees Begham had appeared in the court and filed a compromise when the order dated 19.01.1989 was passed. They were identified by the advocate.

17. Learned Deputy Director of Consolidation after considering the pleadings of the parties and the material on record, recorded a finding that the order sheet of the case was also recorded on 22.05.1988 which was Sunday therefore it could not have been done. When the Bilkees Begham had died on 20.09.1984 she could not have signed the compromise on 27.12.1988. On the basis of record a finding has also been recorded that on the date of compromise i.e. 27.12.1988 only Tarique and Sikandar had signed the order sheet but it was not signed by Bilkees Begham therefore, in any case all the parties to the compromise were not present on the date of execution of compromise. The signature of the then Deputy Director of Consolidation on the back of the compromise and the order sheet of the same date i.e. 27.12.1988 are totally different.

18. The learned Deputy Director of Consolidation has also recorded a finding that the order dated 21.07.1953 passed by the Sub-Divisional Officer, on the basis of which the petitioner is claiming his right, is also suspicious because there is no case number and section on it. On the basis of this finding learned Deputy Director of Consolidation had come to the conclusion that in case if the order dated 21.07.1953 is forged one then there was no successor of the father of Zakiya Khanam who was the tenure holder. Therefore as per rule after Zakiya Khanam the property should have been vested in the State Government. As per the information given by the Principal of the A.G. Hashmi Inter College, Sadulla Nagar, Balrampur under Right to Information Act, the date of birth of the petitioner i.e. Sikandar Khan son of Sahjahan Khan resident of Village Ranki Badanpur, Post- Golipur, District- Gonda now Balrampur is 20.10.1959 and as per the copy of the transfer certificate, the certified copy of which was filed the date of birth is the same and the date of his leaving school is 26.05.1973. Therefore also the name of the petitioner, on the basis of the order of Sub-Divisional Officer, could not have been recorded.

19. Section 52 of the Consolidation of Holdings Act, 1953 provides the close of consolidation operations. After publication of the notification under Section 52, the consolidation proceedings are closed. Therefore no objection can be filed before the assistant consolidation Officer. It has not been disputed that the consolidation proceedings had been closed by the publication of notification under Section 52 in the year 1965. Therefore the objection under Section 9-A (2) could not have been filed on 09.06.1982 and the order could have been passed by the Consolidation Officer on 09.06.1982, by Settlement Officer Consolidation on 20.081986 and Deputy Director of Consolidation on 19.01.1989. It has also not been disputed by the learned counsel for the petitioner that the objection was filed before the Consolidation Officer while objection is filed before Assistant Consolidation Officer, who, if matter is not settled, forwards to the Consolidation Officer for disposal. Therefore the objection was not in accordance with law.

20. This Court is also unable to comprehend that a person in whose favour the order has been passed would not get it implemented for a period of 27 years. In the present case for a period of about 27 years, the order dated 19.01.1989 was not got recorded in the revenue records by the petitioner whereas no proceedings were started or continuing between 10.05.1989 to 2014 and after dismissal of the SLP on 14.10.2015.

21. So far as the argument advanced by learned counsel for the petitioner that the proceedings were finalized and SLP was also dismissed by Hon'ble Supreme Court is concerned, it appears that the application for recall was moved by Mohd. Naushad Ali was claiming on the basis of will and the writ petition was filed by his son taking a contradictory stand that the sale deed was executed in the name of his father, who was not a party to the proceeding before the lower court and in the order dated 19.01.1989. Whereas the opposite parties no.3 to 6 were the parties and the allegation is that the order dated 19.01.1989 was obtained fraudulently and the findings recorded by the learned Deputy Director of Consolidation apparently show that the order dated 19.01.1989 was passed fraudulently and not in accordance with law. Before this Court also the findings recorded by the learned Deputy Director of Consolidation regarding fraud have not been challenged and only a plea has been taken that the proceedings were finalized therefore application was not maintainable. Finality of proceedings does not mean that it can not be questioned even if the fraud has been found and such a party can not be allowed to enjoy its fruits. It is also settled proposition of law that in case of fraud even the limitation will not come in the way.

22. This Court, in the case of Rikhdev and Another Versus A.D.M.(Finance), Azamgarh and Others (Supra), has held that it is well settled principle of law that any judgment or order obtained by fraud is nullity and non est in the eye of law and can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings. The relevant paragraphs 26, 27 and 39 are extracted below:-

"26. It is well settled principle of law that any judgment or order obtained by fraud, its validity can be challenged in any proceeding. Before three centuries, Chief Justice Edward Coke proclaimed;

"Fraud avoids all judicial acts, ecclesiastical or temporal".

27. It is settled proposition of law that a judgment, 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 judgment, 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.

39. In para-39 of the judgment of A.V. Papayya Sastry (supra), it has been laid down that it is established that when an order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non-existent and non est and cannot be allowed to stand. This is the fundamental principle of law and needs no further elaboration. Therefore, it has been said that a judgment, decree or order obtained by fraud has to be treated as nullity, whether by the court of first instance or by the final court. And it has to be treated as non est by every Court, superior or inferior."

23. This Court, in the case of Suresh Giri and others Versus Board of Revenue, U.P. at Allahabad through its Registrar and others; 2010 (109) RD 566 , has held that the fraud vitiates every solemn act and an act of fraud is always to be viewed seriously. The relevant portion of paragraph-19 is extracted below:-

"19. It is well known that fraud vitiates every solemn act and an act of fraud is always to be viewed seriously. The observation of Lord Justice Denning in Lazarus Estates Ltd. Vs. Beasley (1956) 1 All E.R. 341 which is quoted below works as a lighthouse even today for those dispensing justice. "No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand, if it has been obtained by fraud. Fraud unravels everything. ......"

24. The Hon'ble Supreme Court in the case of S.P. Chengalvaraya Naidu (dead) by LRs. Vs. Jagannath (dead) by LRs. and Others; (1994) 1 SCC 1 has held that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law and it can be challenged in any court even in collateral proceedings and 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 relevant portion of paragraph-5 is extracted below.

"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 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."

25. In view of above, this Court is of the considered opinion that the impugned order dated 04.02.2021 is a reasoned and speaking order and there is no illegality or error in it. The writ petition has been filed on misconceived ground and lacks merit, it is, accordingly, dismissed. No order as to costs.

............................................................ .(Rajnish Kumar,J.)

Order Date :- 18.3.2021

Haseen U.