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1990 DIGILAW 444 (ALL)

Surya Narain Tripathi v. State of U. P

1990-04-25

B.L.YADAV, G.K.MATHUR

body1990
JUDGMENT B.L. Yadav, J. - By the present petition under Article 120 of the Constitution of India the prayer is that by issuing it writ of Certiorari the order dated 20-4-90 (Annexure- 7 to the petition), passed by the Secretary, Shakti Nagar Special Development Area, Renukoot, under S. 14 of the U.P. Special Areas Development Authorities Act, 1986 (for short the Act), reviewing an order for granting permission of approving a map for construction of a building over the land indispute consistent with development plan, may he quashed. 2. Factual matrix of the case is that the petitioner has obtained a map for raising construction over the land in dispute in accordance with the procedure under S. 13 of the Act. An objection was raised by respondents Nos. 3 & 4 that the petitioner has got no right or title in respect of the land in dispute. After an enquiry it has been found that over plot No. 2425 area 19 biswa, over 4 biswa of land one Ramesh Chand Jauhari, respondent No. 4 has been recorded and over 15 biswa of land one Smt. Puja Mathur, respondent No. 3 is recorded as Bhumidhar. The petitioner has raised unauthorised construction over the land in dispute and the prayer by respondents Nos. 3 & 4 was that the construction may be demolished and the map sanctioned under S. 13 or the plan approved (758/89, Sonebhadra), may be cancelled. It was found that the petitioner was not recorded over any area of the land, rather in some enquiry report submitted by the Tahsildar, the petitioner was shown to be in possession only. As the petitioner was having no right or tide consequently the map sanctioned of plan approved in view of the procedure contemplated under S. 14 has been cancelled by the impugned order dated 20-4-90 (Annexure-7 to the petition. 3. Learned counsel for the petitioner urged that as the permission for development of the land and raising construction Was obtained by the petitioner in pursuance of the provisions of S. 14 of the Act and also in view of the procedure contemplated under S. 13 and the petitioner was Irvin, to raise the construction, in that event also the permission granted or the map approved cannot be cancelled by respondent No. 2 as there appears lobe no power of review under the Act. Learned Standing Counsel on other hand, urged that as the power to grant permission was provided specifically under S. 14 and under Section 14(5) there was it procedure for appeal to the State Government. Further under S.38 which provided control by the Slate Government, particularly under S.38(3) the State Government has got power of entertaining revision and that power is very comprehensive unlike S. 115 of the C.P.C. if the State Government is satisfied itself about the legality or propriety of any order passed or direction issued. In this view of the matter apart from that, there was inherent power to review and in any view of the matter the impugned order cannot lie said to he without jurisdiction. 4. As the facts of the writ petition are almost admitted there is no necessity to ask for counter affidavit. The learned counsel for the parties suggested that the petition may be disposed of on merits. 5. We may conveniently have some elementary rules of interpretation of statutes. The provision of it particular section of a statute need not he read in isolation. Rather it has to be read in its entire context. The context means in its widest sense including every provision of the statute read together. The context is of immense importance in a statute. Our endeavour would he it, examine different relevant parts of the Act together we Union of India v. Sankal Chand, AIR 1977 SC 2328 : 1977 Lab IC 1857. The provisions of Ss. 13, 14 and 38 of the Act stay he read together. 6. The petitioner was granted permission for the development of land and his plan No. 758/89 to raise construction over plot No. 3162 was approved. But later it complaint was made by respondent No. 3 Smt. Pooja Mathur and respondent No. 4 Ramesh Chand Jauhari that the petitioner was nut the owner of the land in dispute nor he was entered in revenue papers, rather just by sonic disastrous device he was shown into possession on the basis of a report of the Naib Tahsildar, Obra on the basis of some agreement when the person executing agreement was not shown to have any title over the land in dispute which was catered as bhunidhari land with transferable rights in the names of respondents Nos. 3 & 4. 3 & 4. Just possession on the basis of report of Naib-Tahsildar could not entitle him to have permission to raise construction or to make improvement. In fact, in Khatauni 1388F plot No. 2425, new No. 3162 an area of 4 biswa was entered in the name of Ramesh Chandra Janhari and an area of 15 biswa was entered in the name of Sim. Pooja Mather as Bhumidhars. 7. The provision under S. 13 is that after the establishment of the authority for any special development of area, no development of land shall he undertaken or carried out or continued in that area by any person unless permission for such development has been obtained. This S. 13 is to he read with S. 14 which provides that every person desiring to obtain permission referred to in S. 13, shall make an application in writing to the authority in such form-as may he prescribed. In that form the applicant appears to have shown himself as owner of the land. But after the objections were filed by respondents Nos. 3, 4 it became obvious that the petitioner had no title, rather he was just shown to be in possession, that too on the basis of a report of the Naib Tahsildar and he title holders were 'respondents Nos. 3 & 4. ft an order was passed by the concealment of material facts pertaining to title of the petitioner, can that order he not corrected either in the revision under S. 38 or under the inherent power of review, may be that power of review may not he statutorily provided. 8-9. In the present case there is no doubt that even though there is no statutory power of review, but every court, authority or tribunal called upon to decide rights of the parties or to make an order relevant under the circumstances of the case, has got inherent power to review, so that justice may be done and incorrect orders obtained by concealment of facts, may be corrected. The inherent power of review is based on a Latin maxim 'Actus Curiae Neminem Gravabit" which connotes that an act of court shall prejudice no man. There is another maxim "Actus Legis Nemeni Est Damnosus" which means that on act of law shall prejudice no man. The basic idea is that no polluted hand shall touch the pure fountain of justice. The fraud vitiates everything. There is another maxim "Actus Legis Nemeni Est Damnosus" which means that on act of law shall prejudice no man. The basic idea is that no polluted hand shall touch the pure fountain of justice. The fraud vitiates everything. In other words if an order has been passed by concealment of material facts or by practising fraud on the court or authority or tribunal as facts were not clearly indicated, rather material facts were concealed, in that event the court or the authority, if satisfied about fraud and concealment of material facts or misrepresentation, shall be justified in vacating its own order of judgment, even though there may not be any specific power for review. (See Foster v. Mackinnon, L.R., 4 CP 704; Carliste & C. Bank v. Braqf, (1911) 1 KB 489, at page 493; Lewis v. Clay, 67 LJ QB 224; Phillipson v. Egremont, 6 QB 587). 10. In American Jurisprudence (2nd) Volume 37, para 144 and page 196 it is stated as follows : "Unquestionably the concealment of material facts that one is, under the circumstances, bound to disclose, may constitute actionable fraud. Indeed one of the fundamental tenets of Anglo American Law of fraud is that fraud may be committed by suppressing truth (suppressio veri) as well as by suggestion of falsehood (suggestio falsi). (See Strong v. Repide, 213 US 419; Tyler v. Savage, 143 US 79; Griswold v. Hazard, 141 SC 260). 11. It is, therefore, equally competent for a court to relieve against fraud whether it is committed by suppression of truth that is by concealment or by suggestion of falsehood. The courts developed the doctrine that disclosure was the duty of one standing in a trust or confidential relation to another, and that suppressio veri may be equally fraudulent as suggestio falsi (See Crosby v. Buchanan, 23 Wall (US 420 L Ed 138; Smith v. Richards 13 Pet (US) 26, 10 L Ed 42, page 197). 12. In Lazerus Estates Ltd. v. Beasley, (1956) 1 All ER 341, it was observed by Denning L.J. as follows : "No court in this land will allow a 'person to keep an advantage which he has obtained by fraud. No judgment of court, no order of Minister can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. No judgment of court, no order of Minister can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved, but once it is proved it vitiates judgment contracts and all transactions whatsoever (See Administrative Law (Fifth Edn. by H.W.R. Wade, page 228; Halsbury's Laws of England Vol. 1, Fourth Edn. chapter dealing with administrative law, para 88; In de Smith's Judicial Review of Administrative Law, Fourth Edn. page 408; Regina v. Secretary of State for the Home Deptt. (1982) 1 WLR 405 ." 13. In Smt. Lachmana alias Hubraja v. Dy. Director of Consolidation, (1966 RD 419) it was held as follows : "It is, however, settled that every court or tribunal has inherent jurisdiction apart from statutory jurisdiction to correct any error committed by itself. This power is based on a legal maxim which is to the effect that no party shall suffer because of the fault of the court or the tribunal." Similar view was taken in other cases in Raja Devi Bus v. Habib, 40 Ind Appeals 151, Syed Tufazzul Husain v. Raghunath Prasad, 140 Moore's Ind Appeals 40: Asha Devi v. Champa Devi (1937 ALJ 945) : AIR 1938 All 8 and Sriniwas Prasad Singh v. Sub-Divisional Officer. (1960 ALJ 557). 14. In Hargovind Singh v. Board of Revenue (1962 RD 249) a Division Bench of this court held at page 251 as follows : "Every court has inherent jurisdiction to correct errors committed by itself which may result in prejudice to any party as long as that erroneous action was not at the instance of the party seeking relief and even otherwise there was no default or error committed by that party." Similar view was taken in another Division Bench decision in Devi Prasad v. Sri Khelawan, (1956 ALJ 13). 15. In this view of the matter we are of the opinion that the impugned order has correctly been passed and the permission granted to the petitioner for development or for raising construction or the order approving map has correctly been set aside or recalled as the petitioner was shown only in possession that also on the basis of report of Naib Tahsildar, rather respondents Nos. 3 & 4 were recorded over the land in dispute as Bhumidhars. 3 & 4 were recorded over the land in dispute as Bhumidhars. The petitioner having been shown just in possession on the basis of report of Naib Tahsildar was not entitled to have obtained the order for either development or for approval of his map nor he was entitled to permission to raise the construction. The impugned order, therefore, cannot be said to be erroneous. 16. The matter can be viewed from another angle. The power to issue writ of certiorari under Article 226 of the Constitution is not as a matter of course, rather it has to be exercised only in the event when some grave injustice has been done and the subordinate authority or the court has committed an error of jurisdiction or error apparent on the face of record. In case by issuing a writ of certiorari any illegal order may he restored in that event also it would not he proper to exercise the extraordinary jurisdiction under Article 226 of the Constitution. In the present case even assuming that we take the view that the impugned Order may he quashed which would not he justified under the circumstances of the case, nevertheless the fact would be that the earlier order in favour of the petitioner granting him permission to raise the construction or for development or for approving the map, would he restored. But that order was passed on the basis of concealment of material facts and that would prejudice the respondents Nos. 3 & 4 who appear not to have been made parties to that proceeding, nor they were given any opportunity of hearing. It is also cardinal principle of rule of law that no order can he passed which could pre-judicea party, without informing him and affording him sufficient opportunity of hearing. In this view of the matter also we decline to grant the relief prayed for. 17. There is yet another factor worth consideration that a civil suit has already been filed which is still pending. Consequently it would not he proper for us to exercise our extraordinary jurisdiction. 18. In the result, the petition fails and the same is dismissed.