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MOHD ISHAQUE & ANOTHER versus STATE OF U.P. & ANOTHER

High Court of Judicature at Allahabad

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Mohd Ishaque & Another v. State Of U.P. & Another - WRIT - C No. 63671 of 2005 [2006] RD-AH 8507 (27 April 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc. Writ Petition No. 63671 of 2005

Mohd. Ishaque and others...............................................Petitioners

Versus

State of U.P. and others....................................................Respondents.

Hon. S.N.Srivastava, J.

While being seized of the controversy involved in this petition, attention of the Court was drawn to a disquieting feature that petitioners have abused the process of the Court by filing a second petition for the self-vide order dated 24.8.2005 passed in writ petition no. 55430 of 2005. Consequently, a detailed order was passed on 18.10.2005, issuing notice to the petitioners to appear in person on 9.12.2005 to show cause why proceeding be not launched against them for making false averments. On 27.2.2006, again a detailed order was passed directing Sub Divisional officer Tahsil Sadar Allahabad to produce alongwith the record the enquiry report fixing responsibility for non-compliance with the order of the Court dated 31.1.2006 communicated through letter dated 6.2.2006 by which Standing counsel was required to produce notification with a view to ascertain whether U.P.Z.A. & L.R.Act was applicable to the land in dispute or not. On 27.3.2005, the judgment was reserved in the case and 28.4.2006 was fixed.

The dispute in the instant matter revolves round plot no. 532 admeasuring 2 Bigha and 5 Biswas situated in village Kareli Tahsil Sadar District Allahabad. It would appear that in the earlier writ petition, which was dismissed on 24.8.2005, the petitioners had sought the relief of a writ of mandamus directing opposite party no. 2 to decide proceeding under section 33 and 39 of the Land Revenue Act pending before S.D.O. Tahsil sadar District Allahabad. It would further appear that the petitioner had filed an application to correct entry in Khatauni by expunging the name of one Jeevan son of Kallu and in his place to record the name of the petitioner.

In the perspective that the petitioners had filed a second petition for the self-same relief the first one having been dismissed, record of the earlier petition was requisitioned. Sri Ahmad Hassan learned counsel representing the petitioners stated across the bar that he had not been clued in about filing of the earlier writ petition. As stated supra, a notice having been issued, the petitioners appeared and filed their reply to the show cause notice together with the basis of their title alongwith a supplementary affidavit. It would further appear that the petitioners placed credence on some order in their favour incorporated in the Khatauni as well as the basis of the title i.e. mortgage deed dated 10.6.1975 executed by aforesaid Jeevan son of Kallu. On a careful scrutiny of materials on record, this Court directed Sub Divisional officer Tahsil Sadar to produce relevant record and enquiry report as directed by the Court. A counter affidavit sworn in by Sri Sameer Verma, Sub divisional Officer Tahsil Sadar District Allahabad came to be filed depicting that the village Kareli consisted of two types of property i.e. the land in Zamindari area and the land in non-zamindari area and that now Zamindari has been abolished but in certain area the properties are still being governed by the law relating to non-Zamindari Abolition Area and that the land in dispute fell in non-Zamindari Abolition Area. The further averments made in the counter affidavit are that the land has already vested in the State by order of the Prescribed Authority Ceiling dated 9.2.1979. It would transpire from a scrutiny of counter affidavit that numerous other documents were also filed alongwith counter affidavit to prop up the case that no orders were ever passed in favour of petitioners by any competent authority and entry made in Khatauni was nothing but an instance of interpolation. Sri Sameer Verma, S.D.O. also produced enquiry report and it was conveyed to the Court that one O.P.Yadav, Naib Tahsildar has been held blameworthy in the matter and as a consequence, he has been visited with the punishment of warning.

Learned counsel for the petitioners made a categorical statement across the bar that he was never apprised of the earlier petition having been filed by the petitioners. As stated supra, petitioners were enjoined to explain their conduct as regards the averments made in the subsequent writ petition. Sri Namvar Singh, learned counsel raised objection having complexion of preliminary objection that in view of judgment of this Court reported in 2002 All. Civil Journal 435, this Court cannot launch any proceeding for filing false affidavit and that matter could only be gone into by the Bench dealing with contempt matters.

In connection with the above, the averments made in paragraph 1 of the subsequent writ petition may be noticed and the same being relevant are excerpted below.

"1. That this is the first writ petition on behalf of the petitioners, no any other writ petition has been filed nor dismissed nor pending for disposal, and no notice of caveat has been served upon by the respondents to the present petitioners".

The writ petition aforesaid is accompanied with an affidavit of Mohd. Ishhaq son of Mohd. Shafi, resident of 358 Rani Mandi Tahsil Sadar District Allahabad. It would further transpire that this paragraph 1 is sworn in on personal knowledge as would be explicit from the swearing clause. From a further scrutiny of the averments in the writ petition, it would transpire that the petitioners have claimed rights on the basis of unregistered mortgage deed and consequent correction of revenue record on the basis of entry which according to the learned counsel for the State authorities is a forged entry regard being had to the fact that the land in question is covered by law applicable to non-zamindari Abolition Area.

In the above perspective, it brooks no dispute that the petitioners preferred the subsequent writ petition knowing fully well that the first writ petition filed for the self-same relief involving the same property has already been dismissed and thus the act of the petitioners seem to be deliberate and willful one. There is no indicium on record that the petitioners filed the writ petition in ignorance or were misled into filing the subsequent writ petition. Hence they are not entitled to any special favour in extenuation of the charges. The averments in para 1 of the writ petition are eloquent enough that the petitioners concealed the factum of earlier writ petition having been filed and dismissed with full knowledge of its consequences. It would appear from the record that the petitioners concealed the factum of earlier petition and its dismissal with the avowed object of inveigling the court into granting order to their advantage. In this connection, a decision of some consequence may be noticed. In V.G.Nigam v. Kedar Nath Gupta  (1992) 4 SCC 697, the Apex Court observed that the willful conduct is a primary and basic ingredient of an offence under the Contempt of Court Act. In Advocate General, Bihar v. Ms. M.P.Khair Industries Ltd, AIR 1980 SC 946, the Apex Court held that deceiving the Court or the Court's officers, by intentionally suppressing facts or placing false material before the Court, would constitute contempt. Again in Delhi Development Authority. Skiper Constructions, (1995) 3 SCC 507, the facts were that after the dismissal of a writ petition by the High Court and the dismissal of a special leave petition by the Supreme court, the contemnor filed a suit in respect of the same subject matter. In that case the plea was that the contemnor filed the suit on the basis of legal advice that such a suit would lie. The Apex court in the facts and circumstances of the case held the filing of the suit is a gross abuse of the process of the Court and is intended to bring the authority and administration of justice into disrespect and hence criminal contempt. The Apex Court also held that in cases of criminal contempt, the intention or motive of the contemnor is irrelevant.

Reverting to the facts of the present case, it transpires in the conspectus of the facts on record that the act of the petitioners appears to be prima facie contumacious who seemingly intended to bring the authority and administration of justice into disrespect and therefore, this Court is of the view that it is a pre-eminently fit case where a charge be framed. Accordingly following charge is framed.

"That you had earlier filed a writ petition bearing no. 55430 of 2005 Hakim Ali & another v. State of U.P. and others through co-petitioner Hakim Ali  which was dismissed by means of order of the Court dated 24.8.2005 and thereafter, you filed another petition bearing no. 63671 of 2005 Mohd Ishaque V. State of U.P. arraying Hakim Ali as your co-petitioner in the aforesaid petition with the self-same set of facts and circumstances and also the reliefs claimed therein whereby you tried to deceive the Court by intentionally suppressing facts/placing false material before the court with a view to obtaining an order from this Court by making false averments in the subsequent writ petition. The aforesaid willful and deliberate act amounts to a gross abuse of the process of the Court and is intended to bring the authority and administration of justice into disrespect. Thereby committed criminal contempt under section 2 of the Contempt of Courts Act, 1971."

In view of the above, the matter is referred to Division Bench dealing with criminal contempt. Let the record of earlier writ petition as well as photo copy of the subsequent writ petition be transmitted to the Division Bench dealing with criminal contempt matter for proceeding accordingly.

Office is directed to do the needful accordingly.

M.H.

April 28, 2006.


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