TMI Blog2010 (3) TMI 1035X X X X Extracts X X X X X X X X Extracts X X X X ..... person/ Naib Tahsildar to hold auction. Accordingly, auction and sale of the property has been done in violation of Rules by a person who was not competent to do so. The petitioner UPCL had filed successive writ petitions challenging the auction proceeding and failing to achieve its object, had filed regular suit and obtained ex parte injunction which was later on, vacated. Thus, the petitioner UPCL approached the civil court as well as this court with uncleaned hands concealing the material facts, and has abused the process of law. The repeated filing of writ petitions in this court against the auction and sale proceeding, the transfer of property in violation of interim order of this court, the concealment of fact with regard to pending of writ petition while filing the R.S. No. 27/2004 and concealment of fact in this court with regard to filing of regular suit, shows a clandestine effort on the part of the UPCL, to abuse of process of law and makes out a case for trial of perjury, contempt of this court as well as imposition of exemplary costs. W.P. dismissed. - 9080 of 2007 - - - Dated:- 17-3-2010 - DEVI PRASAD SINGH AND SATISH CHANDRA DR. , JJ. The judgment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2000 for transfer of interest-free trade tax deferment loan which was already availed of by UPAL. The request was rejected by PICUP, vide letter dated October 9, 2000. The PICUP sent another letter dated October 12, 2000 to the Principal Secretary, Tax and Registration (in short, the PST and R ) against transfer of loan already availed of by UPAL. The PST and R, vide letter dated October 18, 2000 advised the PICUP that there is no difficulty in transferring the loan already availed of by UPAL in favour of UPCL subject to rider that UPCL should provide necessary security. Keeping in view the advice of the State Government (letter dated October 18, 2000), the PICUP by means of the letter dated October 23, 2000, agreed for transfer of interest-free trade tax deferment loan which was already availed of by UPAL before transferring the unit to UPCL with certain riders mentioned in the letter but the UPCL failed to fulfil the condition imposed by the Government in its letter dated October 23, 2000. Instead of fulfilling the condition as per letter dated October 23, 2000, the UPCL, inter alia, requested the Principal Secretary, Trade Tax and Registration, vide its letter dated Janu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erment scheme on due dates. Under the agreement the UPCL was to comply with the terms of agreement and also the terms and condition of loan agreement executed by the original borrower, namely, the UPAL. Under the default clause, it has been provided that in the event of default of payment of loan, the UPCL, will be liable to pay interest at the rate of 24 per cent per annum in view of terms and conditions under the relevant scheme. The UPCL also created first charge on the property of cement unit purchased by it in favour of PICUP. According to report received from the Trade Tax Department the cement unit of UPCL remained closed from June 22, 2001 to July 14, 2002. No production was made during this period. Under these circumstances, keeping in view the terms and conditions of the agreement entered into between the PICUP and borrower UPCL, the whole of the amount Rs. 240.55 lakhs became due payable in one instalment along with the interest at the rate of 24 per cent per annum from the date of deferment of loan or the date as decided by the PICUP. In the meantime, without having any prior permission from the PICUP, the UPAL executed second sale deed transferring its another ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t petition. The Division Bench further provided that the property shall remain attached but shall not be sold. The petitioner UPCL will have right of carrying on business in the factory with the rider that the UPCL shall not sell or alienate the property in question including its plants, machinery, etc. It shall keep it in proper running condition. This court further put a rider that in the event of default of payment of instalments, the PICUP authorities may proceed to realise the due as arrears of land revenue. Sri P. Kumar, Managing Director of UPCL, was apprehended by the Collection Amin Sri Ashok Kumar Jaiswal on April 4, 2003 red handed having stolen the assets of the factory. The first information report bearing Crime No. 172 of 2003 was lodged against Sri P. Kumar at Police Station, Mohanlalganj, Lucknow. Sri P. Kumar filed Writ Petition No. 2368 (M/B) of 2003 in which an interim order on May 5, 2003 was passed by the Division Bench of this court staying the arrest of Sri P. Kumar. After due inquiry, the investigating officer filed chargesheet in the criminal case against Sri P. Kumar, and general manager Sri Arbind Shukla as well as six others. The UPCL inste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Smt. Mamta Sinha. Under these facts and circumstances, when Smt. Mamta Sinha failed to repay the loan, the Allahabad Bank proceeded against the aforesaid plot in accordance with the provisions contained in Securitisation and Reconstructions of Financial Assets and Enforcement of Security Interest Act, 2002 (in short, the 2002 Act), on November 23, 2007. However, auction and sale could not be materialised because of the fact that the property was already mortgaged with PICUP and charge was registered with the Registrar of the Companies. In the meantime, M/s. R.D. Cement had participated in the auction sale of immovable property of UPCL fixing September 25, 2007 as date of auction. It was mentioned that the sale shall be conducted in pursuance of the recovery certificate issued by PICUP for the sum of Rs. 2,85,21,351 plus recovery charges. The recovery officer had proceeded on leave on September 24, 2007 and the power was delegated to Naib Tahsildar, Mohanlalganj, by the Tahsildar, Mohanlalganj, Lucknow. M/s. R.D. Cement participated in the auction held on September 25, 2007 and deposited the security amount to the tune of rupees five lakhs and rupees one lakh respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14, 2000 sent by PICUP to UPAL granting permission to sell the cement unit subject to possessing other liabilities. The PICUP, vide letter dated October 23, 2000 contained in annexure No. 6 to the writ petition, informed the UPAL permitting to sell the unit subject to withhold the liability with regard to Tax Deferment Scheme. It has been argued that an application was moved with regard to liability of Tax Deferment Scheme to the State Government but the same has been rejected, vide order dated February 23, 2004. While drawing attention towards para 3 of the rejoinder affidavit dated January 19, 2010, Sri I.B. Singh submits that the petitioner has paid entire sale consideration to the tune of Rs. 401.55 lakhs to the UPAL adjusting the liability of UPAL with regard to deferred tax. It has been stated that tax deferment liability was granted under section 8(2A) of the U.P. Trade Tax Act, vide order dated March 28, 1998 which could not have been transferred to the vendee UPCL. While inviting attention to the letter dated February 10, 2001, annexure No. 19 and the letter of the Government dated February 15, 2001, the Principal Secretary, Tax and Registration, and the notice conta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bolition and Land Reforms Act (in short, the Act ), empowers the Collector of the district to proceed with the attachment and sale of holdings with regard to arrears which is due. Section 286 of the Act empowers the Collector to recover the arrears of land revenue by attachment and sale of the interest of the defaulter in any other immovable property of the defaulter. Sub-section (4) of section 3 of the Act, defines the Collector which is reproduced as under: 3. (4) 'Collector' means an officer appointed as Collector under the provisions of the U.P. Land Revenue Act, 1901, and includes an Assistant Collector of the first class empowered by the State Government by a notification in the Gazette to discharge all or any of the functions of Collector under this Act. The U.P. Zamindari Abolition and Land Reforms Rules, 1952 (in short, the Rules ), contain the procedure with regard to sale of immovable property. Rule 281 of the Rules provides that process for sale of holding under section 284 and other immovable property under section 286, shall be issued by the Collector. The Collector shall auction the holding in lots on the basis of estimated value. Under rule 282 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bid for, acquire or attempt to acquire the property sold or any interest therein: Provided that where at any auction under section 284 no bid is offered up to the amount of the arrear, for which the sale has been ordered, the Collector may bid up to the amount of such arrear. 285C. If the defaulter pays the arrears in respect of which the land for other immovable property is to be sold, at any time before the day fixed for the sale, the person authorised to collect the amount in arrears or to the person appointed under rule 285A to conduct the sale, the sale officer, on being satisfied of the payment, shall stay the sale. 285D. The person declared to be the purchaser shall be required to deposit immediately twenty-five per cent of the amount of his bid, and in default of such deposit the land shall forthwith be again put up and sold and such person shall be liable for the expenses attending the first sale and any deficiency of price which may occur on the resale which may be recovered from him by the Collector as if same were an arrear of land revenue. 285E. The full amount of purchase money shall be paid by the purchaser on or before the fifteenth day from the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g may be taken under rule 285M to issue certificate of sale which includes transfer of property. For convenience, rules 285J and 285M are reproduced as under: 285J. On the expiration of thirty days from the date of the sale if on such application as is mentioned on rule 285H or rule 285-I, has been made or if such application has been made and rejected by the Collector or the Commissioner, the Collector shall pass an order confirming the sale after satisfying himself that the purchase of land in question by the bidder would not be in contravention of the provisions of section 154. Every order passed under this rule shall be final. 285M (i) After a sale of holding or other immovable property under the Act has been confirmed in the manner aforesaid, the Collector shall put the person declared to be purchaser into possession of such property, and shall grant him a certificate to the effect that he has purchased the property to which the certificate refers and such certificate shall be deemed to be a valid transfer of such property, but need not be registered as a conveyance except as provided by section 89 of the Registration Act, 1908. (ii) The certificate shall state the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o hold auction. Accordingly, auction and sale of the property has been done in violation of Rules by a person who was not competent to do so. As discussed hereinabove, the difference between the proclamation of auction and sale as well as the actual auction, should be, 30 days and the property should be properly valued and the minimum price as well as estimated price should be indicated in the newspaper. In the present case, the Z.A. form No. 72 is dated August 27, 2007 and Z.A. form No. 24 is also of the same date, i.e., August 27, 2007. The Schedule date fixed, was September 25, 2007. The 30 days clear notice required for the purpose, was not given. Hence auction suffers from substantial illegality. No material or pleading on record has been pointed out to establish that keeping in view the judgment of this court and the honourable Supreme Court, in the case of Swadeshi Polytex Limited [2008] 12 SCC 596, estimated cost of property and the reserve price, were published in two widely circulated newspaper. In a local newspaper Lucknow Chetna only the date of auction was published. Thus, the auction and sale was held in violation of statutory provisions, Rules as well as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r passed under rule 285H and 285I of the Rules, there was no option to the Collector except to confirm the sale. The argument advanced by the learned counsel for the petitioner, seems to be not correct. The Collector has got ample power either to confirm or accept the bid. Rule 285H or 285I, deals with different sphere. It does not preclude the Collector to apply his mind suo motu to ascertain the sufficiency of bid and procedural irregularity if any committed during the course of auction and sale. There may be a case, where both sides may be having hands in gloves and auction or sale may have been done for extraneous reasons or consideration. In case, no one approached the Commissioner to point out the irregularities in pursuance of power conferred by rule 285I of the Rules, then it does not mean that the Collector will be powerless to take action and pass appropriate order in the event of substantial irregularity or illegality committed during the course of auction and sale of property as arrears of land revenue. The conferment of power to record satisfaction, is wide enough to set aside the auction and sale on just and reasonable ground by the Collector under the inherent pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue Act, 1901, provides for appointment of Additional Collector to exercise delegated power of the Collector or other duties assigned by the State Government. Section 15 deals with the appointment of Assistant Collector. Section 17 is with regard to Tahsildars and Naib Tahsildars. Section 18 provides for appointment of Sub-Divisional Officers and Additional Sub-Divisional Officers whereas, section 19 provides that every Revenue Officer of a sub-division of a district shall be subordinate to the Assistant Collector (if any). For convenience, sections 15, 17, 18 and 19 of the U.P. Land Revenue Act, 1901, are reproduced as under: 15. Assistant Collectors. (1) The State Government may appoint to each district as many other persons as it thinks fit to be Assistant Collector of the First or Second Class. (2) All such Assistant Collectors, and all other Revenue Officers in the district, shall be subordinate to the Collector. 17.. Tahsildars and Naib-Tahsildars. The State Government may appoint to each district as many persons as it may think fit to be Tahsildars and Naib-Tahsildars. 18.. Sub-Divisional Officers and Additional Sub-Divisional Officers. (1) The State Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State Government by the Notification dated June 6, 1953, had appointed all Tahsildars as Ex-Officio Assistant Collectors of First Class. Further, by another notification of the same date, i.e., June 6, 1953, the State Government had appointed all Naib Tahsildars as Ex-Officio Assistant Collectors of Second Class. Accordingly, submission is that the Naib Tahsildar was having power to hold auction. The submission of the petitioner's counsel does not seem to be correct. The power conferred on the Naib Tahsildar is of Ex-Officio Assistant Collector of Second Class for the purpose of duties enshrined in the Land Revenue Act. The duties of Revenue authorities enshrined in the Land Revenue Act, do not cover the jurisdiction with regard to auction and sale provided in the Rules. A person holding Ex-Officio office, may discharge only those obligation which has been specifically assigned to him. According to Black's Law Dictionary, 6th Edition, page 597, ExOfficio means, by virtue or because of an office ; by virtue of the authority implied by office . It means, the Naib Tahsildars because of their Office, will have powers to work as Ex-Officio Assistant Collector Second Class. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, the auction and sale proceeding may be conducted either by the Collector himself or the Assistant Collector of First Class duly appointed by the Collector and no other authority. The aforesaid proposition with regard to delegation of power is fortified by the Division Bench judgment of this honourable court in State of U.P. v. Paraspati Gram Samaj reported in [1965] RD 379, where, an analogy has been drawn while interpreting the provision under section 122B of the U.P. Zamindari Abolition and Land Reforms Rules, read with rule 115C. The Division Bench of this Court held that the Collector includes the Assistant Collector of First Class and not an Assistant Collector of Second Class. It has further been held that under section 221 of the U.P. Land Revenue Act, 1901, the power of Assistant Collector of First Class could be conferred only on Tahsildar. In the case of Smt. Chhowari v. Om Prakash reported in [1967] RD 60, the Board of Revenue, the highest court on revenue side, also held that under section 221 of the U.P. Land Revenue Act, 1901, the Government may confer on any Tahsildar all or any of the powers of an Assistant Collector of the First Class and on any Naib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been considered and interpreted. On the other hand, in the case of Swadeshi Polytex Limited reported in [2006] 24 LCD 1, while affirming the judgment of this court, the provisions contained in U.P. Zamindari Abolition and Land Reforms Act and the Rules framed thereunder, have been considered. In the case of Janak Raj AIR 1967 SC 608, the provisions contained in Order 21, CPC, have been interpreted. It has been held that once sale is confirmed, the judgment debtor is not entitled to get back property even if he succeeds thereafter in having the decree against him reversed. It has been further held that the Code of Civil Procedure of 1908 has got detailed provisions which have to be followed in the case of sales of property in execution of a decree. The Code of Civil Procedure lays down as to how and in what manner such sale may be set aside. Ordinarily, no application is made in the provision or rules 89 to rule 91 of Order 21, and in case any application is made and is disallowed, then the court has no choice in the matter of confirming the sale and the sale must be made absolute. It has also been held that so far as the title of purchaser is concerned, it relates back to dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 Comp Cas 36 (SC); [2008] 9 SCC 299 and United India Insurance Company Limited v. Manubhai Dharmasinhbhai Gajera [2008] 10 SCC 404, the learned counsel for the auction purchaser, submitted that insufficiency of price, shall not make out a case to defer or set aside the auction and sale. However, in the present case, the question is not only of insufficiency of price but also the right of Naib Tahsildar to conduct the auction and sale proceeding as well as notice and publication of estimated value in pursuance of the provisions contained in U.P. Zamindari Abolition and Land Reforms Act and Rules framed thereunder. Thus, the cases relied upon by the learned counsel for the auction purchaser, do not seem to extend any help. It has been vehemently argued that in view of the case of Zila Parishad Muzaffarnagar v. Udai Veer Singh reported in AIR 1989 All 64, the contract becomes complete with the fall of hammer. The judgment in the case of Udai Veer Singh AIR 1989 All 64, seems to be diluted by the subsequent judgments discussed hereinafter and no right shall accrue unless the sale is confirmed by the Collector in accordance with the provisions contained in U.P. Zamindari Abolition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry Officer [2008] 301 ITR 337 (SC); [2008] 12 SCC 582. He submits that the petitioner M/s. R.D. Cement, is stranger and his rights should be protected by the court. He emphasised that being bona fide purchaser, rights of M/s. R.D. Cement, should be protected and, auction and sale may not be turned down for any reason whatsoever. There appears to be no dispute over the proposition of law that ordinarily, a bona fide purchaser for value in an auction and sale, is treated differently than a decree holder, purchasing such property. In the former event, even if a decree is set aside, the interest of bona fide purchaser in an auction and sale proceeding, is saved. The reason as observed by the honourable Supreme Court in the case of P.K. Abdulla [1996] 7 SCC 668, is that the honest outside purchasers should be protected who participate in a sale held in the execution of its decree since such purchasers are not party to the suit. But for such protection, the property which is sold in court auction, would not fetch a proper price when the decree holder himself is purchaser and the decree in his favour, is set aside. However, the present controversy does not relate to execution of a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment to reject the highest tender without any reason. The honourable Supreme Court observed that where sale is subject to confirmation by the Government, then it shall be open to the Government either to accept or reject any bid without assigning any reason with exception to the charge of mala fide (paras 11 and 19). It has further been held that auction and sale was held contrary to Rules. In the case of Excise Commissioner of U.P. v. Manminder Singh reported in AIR 1983 SC 1051, where the controversy relates to auction of liquor shop, their Lordships at the honourable Supreme Court held that the Excise Commissioner was empowered to order re-auction in the interest of revenues of the State. The Excise Commissioner had not confirmed the auction in the interest of revenue of State. The honourable Supreme Court held that the High Court should not interfere under article 226 of the Constitution of India, with the decision taken by the Excise Commissioner. In the case of Tata Cellular v. Union of India reported in [1994] 6 SCC 651, while considering the power of judicial review in the Government contracts/tenders, their Lordships at the honourable Supreme Court held that only the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceeded to observe as under: 77. The duty of the court is to confine itself to the question of legality. Its concern should be: 1.. Whether a decision-making authority exceeded its powers? 2.. Committed an error of law, 3.. committed a breach of the Rules of natural justice, 4.. reached a decision which no reasonable Tribunal would have reached or, 5.. abused its powers. Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under: (i) Illegality: This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. (ii) Irrationality, namely, Wednesbury Unreasonableness. (iii) Procedural impropriety. The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factors which led him to the conclusion that a non-resident's bar in a hotel was operated in such a way that the bar was not an incident of the hotel use for planning purposes, but constituted a separate use. The divisional court analysed the factors which led the Secretary of State to that conclusion and, having done so, set it aside. Donaldson, L.J. said that he could not see on what basis the Secretary of State had reached his conclusion. (2) A decision would be regarded as unreasonable if it is partial and unequal in its operation as between different classes. On this basis in R. v. Barnet London Borough Council, exp Johnson [1989] 88 LGR 73 the condition imposed by a local authority prohibiting participation by those affiliated with political parties at events to be held in the authority's parks was struck down. In the case of Subhash Projects Marketing Ltd. v. W.B. Power Development Corpn. Ltd. reported in [2005] 8 SCC 438, the honourable Supreme Court affirmed the High Court's judgment on the ground that contract was signed under the influence of Minister of State for Power in the Union Government. In Ramchandra Murarilal Bhattad v. State of Mahar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority has the right not to accept the highest bid and even to prefer a tender other than the highest bidder, if there exist good and sufficient reasons, such as, the highest bid not representing the market price but there cannot be any doubt that the authority's action in accepting or refusing the bid must be free from arbitrariness or favouritism. It has further been held that in public interest or to fetch higher amount, bid of auction may be cancelled. However, in case it is established that terms of the invitation to tender were so tailor-made to suit the convenience of any particular person with a view to eliminate all others from participating in the bidding process or suffers from mala fide, court may judicially review the decision of the State Government. In the case of Gajraj Jain v. State of Bihar reported in [2004] 121 Comp Cas 112 (SC); [2004] 7 SCC 151, the honourable Supreme Court held that assets should be sold for obtaining market price and not merely for recovering dues for Corporation. Their Lordships of the honourable Supreme Court held that before putting the assets for sale, the market value must be ascertained. In absence of wide publication and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be maintainable, vide, Government of Maharashtra v. Deokar's Distillary [2003] 5 SCC 669 and Ashok Pratap Singh v. State of U.P. [2004] 3 ESC 1629. The honourable Supreme Court in the case of Raj Kumar Soni v. State of U.P. [2007] 10 SCC 635, held that fundamental facts must be pleaded to enable the High Court to scrutinise the nature and content of right alleged to have been violated. In Union of India v. Jai Prakash Singh [2007] 10 SCC 712, the honourable Supreme Court held that the High Court cannot travel beyond the pleadings and grant a relief. Moreover, Sri I.B. Singh, learned senior counsel also stated that UPCL, is ready to pay entire dues which shows the shaky mind of UPCL, with regard to shifting of tax liability on UPAL. Once the tax liability has not been challenged at appropriate forum at initial stage, now at this stage, the UPCL, cannot escape from its liability to pay tax in terms of the agreement. SUMMARY In view of the above, to sum up: (i) UPCL owes tax liability in question. Unless at appropriate forum the agreement, order/permission of the State Government is questioned and set aside, the UPCL shall own the liability to pay the deferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is pendens, the vendee who is purchasing such property may do so on his own risk as from the outcome of pending case, his right may be affected. For convenience, section 52 of the Transfer of Property Act, 1882 is reproduced as under: 52. Transfer of property pending suit relating thereto. During the (pendency) in any court having authority (within the limits of India excluding the State of Jammu and Kashmir) or established beyond such limits by (the Central Government) of (any) suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose. Explanation. For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a court of competent jurisdiction, and to continue until the suit or proceeding has been disposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilised society. The court may pass appropriate order negating the action taken in violation of its command and may also impose exemplary costs and punish such persons in accordance with law. In view of the above, Smt. Mamta Sinha, who purchased the property during the pendency of writ petitions as well as continuance of interim orders passed by this court (supra), shall also be bound by the judgment of this court. She will acquire no right and title over the land which has been transferred in violation of interim order of this court. In case she has deceived the Allahabad Bank, then Allahabad Bank shall have right to prosecute Smt. Mamta Sinha and recover the amount in accordance with law. Concealment of facts It has been not disputed that an interim order was passed in W.P. No. 6345 (M/B) of 2002 by the Division Bench of this court, which is still continuing. While passing the interim order, the Division Bench of this court had directed to deposit Rs. 30,00,000, first of which shall fall due in first seven days of July, 2003. It was further provided that property shall remain under attachment and shall not be sold. To reproduce the relevant portion of the interim order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 004 the UPCL claimed the following reliefs: (a) A declaratory decree be passed in favour f the plaintiff against the defendants, declaring that the plaintiff is not liable to pay the interest-free trade tax deferment loan of PICUP and it is the defendant No. 2 who is liable to pay the said loan amount to the defendant No. 1 and as such the recovery certificate issued by defendant No. 1 is illegal, invalid and not enforceable against the plaintiff. A decree for the auction illegally done by the tehsil authorities may please be declared null and void. (b) A decree for perpetual injunction be passed in favour of the plaintiff against the defendant No. 1 restraining him, his officers, agents men, assignees, power of attorney holder not to enforce the illegal, invalid recovery certificate issued by him and not to auction/ sell the plaintiff's unit in lieu of the illegal and invalid recovery certificate. (c) Cost of the suit be awarded to the plaintiff against the defendants. (d) Any other relief or reliefs may further be awarded in favour of the plaintiff and against the defendants, which this honourable court deems fit and proper in the circumstances of this case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... means an intention to deceive. The expression fraud involves two elements, deceit and injury to the person deceived. Even if in some cases there is not benefit to the deceiver, in appropriate case, the second condition shall be deemed to be satisfied. (Vide Dr. Vimla v. Delhi Administration [1963] Supp 2 SCR 585; [1963] 2 Cri LJ 434 and Indian Bank v. Satyam Fibres (India) Pvt. Ltd. [1996] 5 SCC 550). The collusion or conspiracy to deprive the right of others in relation to a property shall render transaction ab initio void. Fraud and deception are synonymous. 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. (Vide Ram Chandra Singh v. Savitri Devi [2003] 8 SCC 319). Fraud is proved when it is shown that a false representation has been made knowingly, or in disbelief in its truth, or recklessly and carelessly whether it is true or false. Fraud avoids all judicial acts ecclesiastical or temporal. (Vide S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L. Rs. AIR 1994 SC 853). In Lazarus Estates Ltd. v. Beasley [1956] All ER 341, the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was reiterated in G. Jayshree v. Bhagwandas S. Patel [2009] 3 SCC 141; [2009] AIR SCW 1311. In the case reported in Afzal v. State of Haryana JT 1996 (1) 328 and Dhananjay Sharma v. State of Haryana AIR 1995 SC 1795, the honourable Supreme Court held that concealment of material facts/filing of false affidavit amounts to criminal contempt, since it amounts to an attempt to interfere with the administration of justice. In the present case, apart from the dismissal of writ petition with exemplary costs in view of the judgment of the honourable Supreme Court in the case of Salem Advocate Bar Association II, T.N. v. Union of India reported in [2005] 6 SCC 344, the officers or authorities concerned of UPCL, may also be liable to be hauled up for commission of criminal contempt of this court. ORDER In view of the above, both the writ petitions are liable to be dismissed. However, as observed hereinabove, UPCL, is liable for payment of exemplary costs for the abuse of process of law, concealment of fact and violation of interim order (supra). Accordingly, W.P. No. 6345 (M/B) of 2002 is dismissed with exemplary costs which is quantified to Rs. 10,00,000 (ten lakhs) which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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