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2015 DIGILAW 1756 (RAJ)

Jarin Huma v. State of Rajasthan

2015-10-07

ARUN BHANSALI

body2015
JUDGMENT : Hon'ble BHANSALI, J.— The matter came up for orders on application (IA No. 5167/2013) filed by the applicants-Smt. Jarin Huma and Sayyed Zile Konin under Articles 226 of the Constitution of India for withdrawal of the writ petition and for initiating appropriate criminal proceedings under Section 340 Cr.P.C. 2. The applicants have, inter alia, submitted that the present writ petition being S.B. Civil Writ Petition No. 267/2002 has been shown to have been filed, inter alia, by applicants and some more persons, wherein a prayer has been made for quashing of the acquisition proceedings and a prayer has been made for considering the application filed under Section 90-B of the Rajasthan Lane Revenue Act, 1956 (`the LR Act'), but affidavit supporting the writ petition is by one Mr. Anil Purohit, the deponent-Anil Purohit has stated on oath that he is one of the petitioners in the case, however, he is not one of the petitioners, further the deponent has even stated that he has been authorized by the petitioners to file the writ petition; alongwith the writ petition, a power of attorney dated 5.12002 has been filed, however, none of the petitioners are signatory to the said power of attorney. From the above, it is claimed that the said Anil Purohit has played a fraud with this Court and has committed perjury while filing the present writ petition without any authority or locus. 3. It is also alleged that for the purpose of filing the present writ petition, the said Anil Purohit has prepared a forged document (Annex. 1) dated 20.5.2000, which was never signed by the applicants or the other 11 petitioners, the documents have been fraudulently prepared by using Blank Stamp Papers signed by the Khatedars. The applicants have, whereafter enumerated the facts pertaining to the subject matter of the present writ petition, wherein it is claimed that the land in question is situated in Khasra Nos. 2602 to 2646 of Village-Bhuvana, Tehsil- Girwa, District- Udaipur and was entered in the name of Chand Mohd. As co-owner with half share jointly with Mohd. Hussain, Mohd. Hanif, Yunus Mohd., Hussain, Fatta and Sakina Bai having other half share; after death of the co-sharers, names of their legal representatives were entered in the revenue record, the land in question was acquired under Section 90-B of the LR Act. As co-owner with half share jointly with Mohd. Hussain, Mohd. Hanif, Yunus Mohd., Hussain, Fatta and Sakina Bai having other half share; after death of the co-sharers, names of their legal representatives were entered in the revenue record, the land in question was acquired under Section 90-B of the LR Act. It is then claimed that half share of the land in question was sold by a sale deed in favour of the applicant No.1 Smt. Jarin Huma by Mohd. Hussain, Mohd. Hanif, Yunus Mohd., Hussain, Fatta and Sakina Bai, for a sum of Rs. 42,60,000/- and possession was also handed over to the applicant. 4. Applicant under Section 90-B of the LR Act was filed before the Urban Improvement Trust (`UIT') for respective share, whereafter, Chand Mohd. sold his half share of land in favour of Rajni Motawat and Smt. Seema; the objections were raised by the UIT on the application filed by the applicant for lack of registered document and, whereafter, registered sale deed was executed by legal representatives of the original title holder. When the application under Section 90-B of the LR Act was being processed by the UIT, an application came to be filed by Anil Purohit referring to a judgment passed in S.B. Civil Writ Petition No. 2262/2001, submitting objections with regard to the applications, when a notice dated 22.7.2013 was issued by the respondent UIT to the said Anil Purohit and the applicant calling upon them to appear on 13.8.2013. It is claimed that on filing of the objections by Anil Purohit before the UIT that the applicants came to know about filing of the present writ petition and another writ petition being S.B. Civil Writ Petition No. 2262/2001. Whereafter the applicants have made reference to S.B. Civil Writ Petition No. 2262/2001 and have submitted that the said writ petition was filed in the name of Anil Purohit and Chand Mohd. with a prayer for decision of application under Section 90-B of the LR Act and for quashing acquisition proceedings. Whereafter the applicants have made reference to S.B. Civil Writ Petition No. 2262/2001 and have submitted that the said writ petition was filed in the name of Anil Purohit and Chand Mohd. with a prayer for decision of application under Section 90-B of the LR Act and for quashing acquisition proceedings. It is alleged that the copy of the agreement date 22.5.2000 was purposely not placed on record, whereby it was claimed that right accrued in favour of Anil Purohit, allegations have been made regarding the document being a fraudulent document, the said writ petition came to be disposed of alongwith various other writ petitions by order dated 15.2.2007 with a direction to the UIT to decide the application under Section 90-B of the LR Act. 5. The applicants have then made reference to another writ petition being S.B. Civil Writ Petition No. 268/2002 pertaining to the same land i.e. land comprised in Khasra No. 2602 to 2646,which was filed in the name of Smt. Indu Somani and Jaggan Nath Devilal claiming that they had purchased the land in question from the original owners of the land by way of a partition deed and the petition was signed by the said Anil Purohit stating that he is one of the petitioners in the writ petition. The applicants have submitted that it is apparent that Mr. Anil Purohit has played fraud upon the Court by producing fraudulent document dated 20.5.2000 and by taking the judicial system for a ride by filing three writ petitions for the same land without having any right. Finally it is prayed that the applicants may be permitted to withdraw the present writ petition, appropriate orders for dismissing the S.B. Civil Writ Petition No.268/2002 be passed and further proceedings under Sec. 340 Cr.P.C. may be initiated against Anil Purohit for committing forgery with this Court. 6. A reply to the application has been filed by Anil Purohit, inter alia, raising preliminary objections that the application has been filed after more than 11 years of filing of the writ petition, the applicants have for all these years enjoyed the fruits of the interim order passed in the writ petition and have participated in the proceedings under Section 90-B of the LR Act before the Competent Authority and at no stage, any objection to the filing of the writ petition was raised. It is claimed that the land in question was purchased by the replying non-applicant jointly with all the petitioners named in the writ petition vide agreement to sale dated 20.5.2000, when the land was sought to be acquired under provisions of the Land Acquisition Act, 1894 all the co-purchasers decided to initiate appropriate proceedings to protect the land including filing of the writ petition and authorized the non-applicant to file the writ petition as another writ petition with regard to a portion of the same land was filed by him being S.B. Civil Writ Petition No. 2262/2001, in which, interim order was granted. It is claimed that non-applicant was also a co-purchaser and his name was required to be included in the array of petitioners, however, inadvertently while name of his brother was included in the cause title, his name was left out due to clerical error. It is submitted that non-applicant has obtained affidavits of all the petitioners except applicants, though they had also authorized the non-applicant to file the present writ petition on their behalf and a Vakalatnama was also signed by them. It is claimed that the applicant signed the writ petition under a bonafide behalf that his name was indicated as petitioner and had sworn the affidavit in support of the writ petition and the stay petition as well alongwith authorizing the counsel for filing of the writ petition. It is claimed that the Competent Authority has granted Patta under Section 90-B of the LR Act in favour of the non-applicant and at that stage the applicants raised a dispute regarding grant of Patta and the present proceedings have been filed to pressurize the non-applicant to agree to the terms of the applicants, the application has been filed with ulterior motives to grab the entire land and the petition has been sought to be withdrawn without consent of the other petitioners. It is also claimed that even the Vakalatnama signed by the other petitioners is missing from the record and there is only one Vakalatnama signed by the non-applicant on record and it cannot be conceived that Stamp Reporter would entertain a writ petition without there being any Vakalatnama on behalf of all the petitioners. It is submitted that all the petitioners except the applicants have given sworn affidavits and have authorized the non-applicant to file the present writ petition and have signed Vakalatnama. It is submitted that all the petitioners except the applicants have given sworn affidavits and have authorized the non-applicant to file the present writ petition and have signed Vakalatnama. It is further indicated that replying non-applicant is one of the co-purchasers alongwith the applicants with regard to the land in question and earlier writ petition was also filed by him with regard to this very land, which was decided by this Court and directions were given that application under Section 90-B of the LR Act should be decided by the Competent Authority. It is prayed that the application be dismissed with costs. 7. An application under Order 1, Rule 10 CPC has also been filed by the non-applicant seeking impleadment in the writ petition also. 8. Another affidavit has been filed by non-applicant Anil Purohit seeking to respond to the averments made by the applicants regarding the land in question and has refuted the allegations made and has sought to put forth his submissions qua the averments made in the application qua the disputed land. 9. The applicants have filed response to the additional affidavit and have reiterated the submissions made earlier regarding the original agreement dated 20.5.2000 being fabricated and forged document and that the applicants became aware of the pendency of the present writ petition only in the year 2013. 10. During pendency of the present application, by order dated 12.12.2014, a coordinate Bench of this Court directed the Dy. Registrar (Judicial) to look into the matter and make a complete report on the submissions made by learned counsel for the petitioner that initially when the petition was filed, the Vakalatnama was filed on behalf of the petitioners, though no such Vakalatnama was available on record. Registrar (Judicial) to look into the matter and make a complete report on the submissions made by learned counsel for the petitioner that initially when the petition was filed, the Vakalatnama was filed on behalf of the petitioners, though no such Vakalatnama was available on record. The concerned Stamp Reporter was called upon to clarify the position, who has reported that on 18.1.2002, two writ petitions being S.B. Civil Writ Petitions No. 267/2002 and 268/2002 were filed; both the writ petitions were not having Vakalatnama on behalf of the petitioners, counsel for the petitioners presented the copy of power of attorney given by all the petitioners in favour of Anil Purohit and presented the Vakalatnama of Anil Purohit, on which basis S.B. Civil Writ Petition No. 268/2002 was passed and since qua both the writ petitions, there was direction for listing granted by the Hon'ble Court, the Stamp Reporter passed both the writ petitions being S.B. Civil Writ Petitions No. 268/2002 and 267/2002 treating the same as similar writ petitions and passed S.B. Civil Writ Petition No. 267/2002 mistakenly. 11. It is submitted by learned counsel for the applicants that the non-applicant Anil Purohit has committed fraud with this Hon'ble Court, which is apparent from the record of all the three writ petitions filed by him. It is submitted that in the present writ petition, non-applicant was neither a petitioner nor he had any authorization from any of the named petitioners therein including the applicants despite that he chose to file the writ petition and claimed himself as the petitioner and having authorization from the petitioners, which fact was ex-facie contrary to the record of the writ petition. It is further submitted that the document sought to be relied on by the non-applicant is forged and the same has been filed with a view to mislead this Court and as such non-applicant deserves to be proceeded against. 12. Further submissions were made with reference to the pleadings in S.B. Civil Writ Petition No. 2262/2001, the present writ petition and S.B. Civil Writ Petition No. 268/2002 to indicate that despite passing of the order in S.B. Civil Writ Petition No. 2262/2001, the present writ petitions were fraudulently filed with regard to the same piece of land, which was subject matter of S.B. Civil Writ Petition No. 2262/2001 and, therefore, the non-applicant deserves to be dealt with severely. Further submissions were made seeking to question the legality and validity of the agreement to sale dated 20.5.2000. It was prayed that the application may be allowed and the non-applicant be proceeded against. 13. Learned counsel for the non-applicant submitted that the applicants have filed the application after 11 years after enjoying the interim order passed in the writ petition for all this period. It is submitted that in the proceedings under Section 90-B of the LR Act, the applicants were well aware of the present writ petition and that the conflict of interest arose when the applicants sought conversion of land under Section 90-B of the LR Act in their favour and only with a view to pressurize the non-applicant, the present proceedings have been initiated. It is submitted that the applicants were seeking to take advantage of the fact that non-applicant's name is not indicated in the array of petitioners and that the Vakalatnama executed by the petitioners is missing from the record. 14. With reference to the report given by the Registry, it was submitted that the same is factually not correct, inasmuch as, there is no power of attorney in S.B. Civil Writ Petition No. 267/2002 and, therefore, if the Vakalatnama was not filed, merely because S.B. Civil Writ Petition No. 268/2002 was passed based on power of attorney, is absence of power of attorney, the present writ petition could not have been passed. 15. Further submissions were made that the withdrawal of the writ petition cannot be granted without consent of other petitioners, which is missing. Submissions have been made that present is a case of bonafide inadvertent mistake, typographical lapse and clerical error and the same cannot be said to be deliberate on part of the non-applicant. It is further submitted that all the petitioners except the applicants have now given their Vakalatnama and have filed affidavits, inter alia, indicating that the writ petition was filed at their instance. 16. Reliance was placed on Chajoo Ram vs. Radhey Shyam & Anr. : 1971(1) SCC 774 and Ashok Kumar Aggarwal vs. Union of India & Ors.: (2013) 15 SCC 539 . 17. I have considered the submissions made by learned counsel for the parties and have perused the material placed on record. 18. 16. Reliance was placed on Chajoo Ram vs. Radhey Shyam & Anr. : 1971(1) SCC 774 and Ashok Kumar Aggarwal vs. Union of India & Ors.: (2013) 15 SCC 539 . 17. I have considered the submissions made by learned counsel for the parties and have perused the material placed on record. 18. The averments made in the application and the response filed by the non-applicant have been extensively noticed hereinbefore and the submissions made by learned counsel for the parties have been more or less in consonance with the submissions made in the application and the reply. 19. From the perusal of the record, it is apparent that the name of non-applicant does not find mention in the array of petitioners, the affidavits in support of the writ petition, documents and stay petition have been sworn on the assumption that non-applicant is named as one of the petitioners. 20. From the record, it is also apparent that neither there is any Vakalatnama executed by any of the petitioners nor there is any authorization/power of attorney by any of the petitioners in favour of non-applicant Anil Purohit still the present writ petition has been filed by the non-applicant claiming authorization on behalf of the petitioners. The fact that such a laconic and non-maintainable petition was entertained by the Registry and was placed for consideration before this Court, clearly indicates a serious flaw not only on part of the non-applicant, counsel for the petitioners, but the Registry of this Court as the Registry should have raised objections on the maintainability of the writ petition, the spacious plea given by the concerned Stamp Reporter regarding the permission/direction by the Court to list the matter cannot absolve the Stamp Reporter/Registry from making a proper report and point out deficiencies, if any. 21. The facts that such a writ petition was entertained by this Court, an interim order was passed and the non-applicant alongwith the petitioners named in the writ petition continued to enjoy the interim order also cannot be ignored, as by order dated 23.1.2002, by way of interim order, it was directed that the petitioners shall not dispossessed from the land in dispute, though the same was under acquisition. It is apparent that but for the interim order, the petitioners named in the writ petition, which included the applicants would have been dispossessed. It is apparent that but for the interim order, the petitioners named in the writ petition, which included the applicants would have been dispossessed. The writ petition was admitted on the first date of hearing, whereafter the interim order was confirmed by order dated 8.7.2002 and the matter remained pending for hearing after the same was lastly listed in the year 2004. 22. As to whether the writ petition was filed without Vakalatnama and power of attorney by non-applicant, on account of bonafide inadvertent mistake and there was typographical error, which led to exclusion of non-applicant's name from the array of petitioners or the said action on part of the non-applicant Anil Purohit was malafide, remains in the realm of speculation only. 23. So far as the applicants are concerned, they have categorically indicated that neither they authorized the non-applicant nor they signed any Vakalatnama, however, the other petitioners have sworn affidavits, inter alia, indicating that they authorized the non-applicant for filing of the joint writ petition and have now also filed Vakalatnama. 24. The very fact that the petitioners other than the applicants have not disowned the filing of the present writ petition and have reiterated the contents of the writ petition and have indicated that the non-applicant was authorized to file the petitioner, it cannot be said with any amount of certainty that the non-applicant has prima facie indulged in committing perjury. 25. So far as the submissions made by learned counsel for the applicants regarding the filing of the forged document dated 20.5.2000 is concerned, the said aspect cannot form the subject matter of inquiry in the application filed by the applicants. It cannot be denied that the applicants and the non-applicant, who is seeking to represent several petitioners, are bitterly against each other qua the land in dispute and the said aspect pertaining to the validity of the document and/or right of respective parties would have to be determined by forum of appropriate jurisdiction. 26. It cannot be denied that the applicants and the non-applicant, who is seeking to represent several petitioners, are bitterly against each other qua the land in dispute and the said aspect pertaining to the validity of the document and/or right of respective parties would have to be determined by forum of appropriate jurisdiction. 26. So far as the submissions made by learned counsel for the applicants regarding filing of the three writ petitions pertaining to the similar subject matter and the same being overlapping regarding the land in question are concerned, the same by itself cannot be a ground for initiation of proceedings under Section 340 Cr.P.C., it is for the respondents in the respective writ petitions to raise issue based on the said aspect, which may have implication on the merits of the writ petitions. 27. Hon'ble Supreme Court in the case of Chajoo Ram (supra) held that prosecution for perjury should be sanctioned by the Courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely and in dealing with perjury prosecutions, the question of long lapse of time of more than ten years is relevant and in the case of Ashok Kumar Aggarwal (supra), the law laid down in the case of Chajoo Ram (supra) was reiterated and dismissal of application filed after four years on the basis of mere impression of the appellant was upheld. The law laid down in the judgments are applicable to the facts of the present case. 28. Though in view of what has been discussed hereinbefore, no case of initiating proceedings under Section 340 Cr.P.C. is made out, however, this Court in the circumstances of the case, cannot appreciate the casual attitude of the non-applicant, counsel for the petitioners/non-applicant and the Registry of this Court, the manner in which the writ petition was filed and came to be placed for consideration before the Court indicates a non-serious approach on part of all the three and in response very casually the blame has been put on typographical/clerical error for such serious lapses in the petition, which further accentuates the casual approach with which the matter was dealt with. Be that as it may, it is expected that in future due care shall be taken by all concerned. 29. Be that as it may, it is expected that in future due care shall be taken by all concerned. 29. So far as the prayer made by the applicants for withdrawal of the writ petition is concerned, the applicants can at best seek withdrawal of the writ petition on their behalf and cannot seek withdrawal on behalf of all the petitioners. 30. In view of the above discussion, the application filed by the applicants Smt. Jarin Huma and Sayyed Zile Konin under Article 226 of the Constitution of India is allowed in part, while the applicants are permitted to withdraw the writ petition qua them, the application seeking initiation of proceedings under Section 340 Cr.P.C. is dismissed. 31. Learned counsel for the petitioners to file amended cause title within a period of two weeks.