@JUDGMENTTAG-ORDER
Pratap Krishna Lohra, J.@mdashBy this writ petition, petitioner has assailed the impugned order dated 15.11.2010 (Annex.4) passed by the second respondent cancelling allotment of plot No. J-4576 made in his favour.
2. Facts apposite for the purpose of this writ petition are that second respondent - Jodhpur Development Authority, Jodhpur (for short ''the JDA'') floated a residential scheme in the name and caption of "Rajeev Gandhi Nagar Yojana at Gangana Road, Jodhpur" and a Brochure of the said Scheme was issued. In the Brochure, the details about the commencement of the scheme, availability of application form and last date for submission of forms were mentioned with clarity and precision. It is also clarified in the Brochure that allotment shall be made by draw of lottery on 27.01.2010. Being eligible, the petitioner submitted his application form alongwith requisite earnest money of Rs. 10,000/-. In his application form, the petitioner staked his claim for allotment of residential plot in B-Category i.e. Lower Income Group-B Category having monthly income of Rs. 10,001/- to Rs. 15,000/-. As per schedule programme, draw of lottery was carried out on 27.01.2010. Petitioner''s name figured among the incumbents who were selected in the draw of lottery and consequently after scrutinizing his application form, allotment letter was issued to him on 01.04.2010. The total costs of plot was worked out at Rs. 91,800/- and after adjusting earnest money paid by him, the respondent-JDA directed the petitioner to deposit the balance amount within 30 days. In compliance of the same, the balance amount was deposited by the petitioner on 26.04.2010. Thereafter, lease rent was also paid by the petitioner on 09.05.2010. After completing all the formalities, the petitioner made endeavour to call upon JDA to demarcate the plot allotted to him. Thereupon, he was assured that same shall be completed in due course of time. Subsequently, the petitioner was addressed a communication dated 15.11.2010 whereby his allotment was cancelled in terms of Clause 12(8) of the Scheme and his earnest money was forfeited. The rest of the amount was refunded to the petitioner by cheque dated 12.12.2010 drawn on State Bank of Bikaner and Jaipur and the petitioner encashed the same ''under protest''.
3. Precisely, assailing the impugned order/communication (Annex.4), the petitioner has submitted in the writ petition that cancellation of his allotment is without any reasonable cause and further more, order of cancellation has been passed in gross violation of principles of natural justice. It is also submitted that once JDA has determined eligibility of the petitioner for allotment of plot in B Category, it is estopped from questioning his eligibility for allotment in the said category. In totality, the grounds of estoppel and violation of principles of natural justice are highlighted in the pleadings.
4. After filing of the writ petition, an additional affidavit is filed by the petitioner to project his monthly income to the tune of Rs. 15,000/-.Alongwith additional affidavit, Annexure-A is filed. Annexure-A an affidavit of the petitioner on Rs. 10/- non-judicial stamp is submitted by the petitioner before JDA, wherein he has mentioned his monthly income to the tune of Rs. 15,500/-.
5. On behalf of the respondent-JDA, reply to the writ petition is filed. In the return, a specific objection is raised by the respondent that the petitioner has submitted his application form for allotment of plot in Category-B while mentioning his monthly income as Rs. 8,000/- and, therefore, he was not eligible for allotment in the Category-B. The certificate of income submitted by the petitioner with application form showing his monthly income to the tune of Rs. 8,000/- is also annexed with the reply as Annex.R.2/1. The respondent has specially pleaded in the return that the petitioner has misled the allotting authority and concealed material information from the department. A copy of minutes of meeting of the competent authority dated 11.06.2010 is also placed on record as Annex.R.2/2 whereby a unanimous decision was taken to cancel all those allotments wherein incumbents have either shown their income less than the category for which they have applied or have shown higher income than the category for which they have applied. While joining issue with the petitioner on violation of principles of natural justice, it is submitted by the respondent that an incumbent like the petitioner who has supplied false and fabricated facts/informations cannot be allowed to take shelter of principles of natural justice. It is also stated in the reply that respondent-JDA has taken a very benevolent view in simply forfeiting the earnest money and refunding the rest of the amount, otherwise, as per the Brochure, the entire amount was liable to be forfeited. Refuting all the allegations about any illegality, the respondent-JDA has submitted in the reply that having played fraud with the respondent, no indulgence can be granted to the petitioner.
6. I have heard learned counsel for the parties and perused the materials available on record.
7. At the outset, it may be observed that Brochure for the Scheme floated by respondent -JDA makes it abundantly clear that what are the criteria for allotment of residential plots in Categories A to F under the Scheme. The requisite recitals of the Brochure in this behalf read as under:-
8. In Sub-clause (8) of Clause 12 of Brochure under the caption "Other Important Conditions", following recitals are contained:-
9. A bare reading of the categories for allotment of residential plots and sub-clause (8) of Clause 12 of the Brochure clearly and unequivocally reveal that petitioner was not eligible for allotment under the Category B inasmuch as he has submitted his income certificate showing his monthly income to the tune of Rs. 8,000/-. This fact is clearly discernible from the income certificate produced by the petitioner with application form as Annex.R.2/1. Therefore, the petitioner has staked his claim for allotment of residential plot under B Category on the strength of his income certificate showing monthly income as Rs. 8,000/- which was obviously not tenable. In this view of the matter, it is difficult to comprehend that respondent JDA has acted arbitrarily or unreasonably to cancel his allotment. Furnishing false information in the application form entails cancellation of allotment is clearly envisaged under sub-clause (8) of clause 12 of the Brochure. The petitioner having submitted his application form after reading the Brochure cannot be allowed to contend that cancellation has violated any of his legal right or impugned communication/order is in violation of principles of natural justice. The doctrine of "estoppel" which is based on equity cannot be invoked by the petitioner to camouflage his own omissions. The very foundation of doctrine of "estoppel" is rule of equity and, therefore, an incumbent who has furnished false information cannot be permitted to invoke the said doctrine to his advantage. Moreover, when there was a clear stipulation in the Brochure that furnishing false information can lead to any adverse consequence against an aspirant for allotment or an allottee, invocation of doctrine of "estoppel" in the facts and circumstances of the case is not at all tenable.
10. There is yet another aspect of the matter that in the additional affidavit, the petitioner has asserted his monthly income as Rs. 15,000/- whereas affidavit annexed with the same i.e. Annexure-A indicates his monthly income to the tune of Rs. 15,500/-. Therefore, even in the additional affidavit with an affidavit, Annexure-A, there are serious discrepancy. The complete text of Annexure-A in vernacular is reproduced as infra:-
11. If the aforesaid affidavit is taken into consideration which is obviously not possible for the reason that earlier the petitioner has shown his monthly income to the tune of Rs. 8,000/- but assuming it to be the correct income of the petitioner, the petitioner even on the strength of the said income is not entitled for allotment of plot in B-Category. As per the Brochure, allotment can be made in B Category to the persons having monthly income of Rs. 10,001 to Rs. 15,000/- only. The inconsistency in the stand and assertion of the petitioner has made this Court to believe that he has deliberately furnished false informations while submitting his application form before the respondent-JDA for allotment of plot under the scheme. The attempts made by the petitioner to change his stand from time to time is sufficient to non-suit the petitioner on the principles of equity, justice and good conscience. Extraordinary jurisdiction of this Court is founded on equitable considerations and an incumbent who has furnished false information or concealed material facts is not entitled to invoke extraordinary jurisdiction. Therefore, considering the conduct of the petitioner, I am not persuaded to interfere in the matter.
12. "Fraud and justice never dwell together" (Fraus et jus nunquam cohabitant) is a pristine maxim which has never lost its temper over all these centuries. In Lazarus Estate Ltd. v. Beasley, (1956) 1 All ER 341, Lord Denning observed in a language without equivocation that "no judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for, fraud unravels everything."
13. The same view is reiterated by Hon''ble Apex Court in
"''Fraud avoids all judicial acts, ecclesiastical or temporal'' observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree- by the first court or by the highest court-has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings."
14. The said view is further reiterated by the Hon''ble Apex Court in
"23. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of court, the courts have been held to have inherent power to set aside an order obtained by fraud practised upon that court. Similarly, where the court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order."
15. Therefore, in this view of the matter, the conduct of the petitioner which is per se fraudulent is sufficient to disentitle him from claiming any relief under Article 226 of the Constitution of India.
16. The upshot of above discussion is that I find no merit in this writ petition and the same is, therefore, dismissed.
