Shri Tanaji Jagannath Palave v. The State of Maharashtra

1 [2004] 1 ALL MR 75:: [2004] 4 Bom CR 302

8 of 14 In (United India Insurance Co. Ltd Vs. Rajendra Singh and others) reported in (2000) 3 SCC 581, the Supreme Court applied the said maxim and quoted with approval observation of (Lord Denning in Lazarus Estates Ltd. Vs. Beasley) reported in (1956) 1 All ER 341 to the effect "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. Castigating the Motor Accidents claims Tribunal and the High Court for not annulling the awards obtained by fraud, the Supreme Court observed (para 4 of the judgment). "For a High Court in India to say that it has no power even to consider the contention that the awards secured are the by-products of stark fraud played on a tribunal, the plenary power conferred on the High Court by the Constitution may become a mirage and peoples faith in the efficacy of the High Courts would corrode." In (S. P. Chengalvaraya Naidu Vs. Jagannath) reported in A.I.R. 1994 S.C. 853, the Supreme Court has observed: "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."

13. In Ronald Hyacinth Mendosa Vs. State of Maharashtra a Division Bench of this Court (to which one to us, A. P. Shah, J., was a party) also had an occasion to consider the effect of a fraud, on administrative actions and/ or judgments obtained by fraud. Repelling that the contention that the petitioner aggrieved by an order of transfer based on a judgment of Administrative Tribunal, which is obtained by fraud, is required to approach the Administrative Tribunal at the first instance this Court observed: "There cannot be any dispute about the proposition that the litigant is required to approach the Central Administrative Tribunal as the court of first instance in respect of the areas of law for which it has been constituted. However, when the party has approached this court complaining of fraud or collusion by another party resulting in an order which directly affects him, should the remedy under Article 226 be foreclosed. Surely this Court exercising jurisdiction under Article 226 is not powerless and would not hesitate to quash and set aside such order if it is convinced that the order was procured by fraud, collusion, misrepresentation, or suppression of material which would 9 of 14 affect the very basis of the claim made before the Tribunal." A Special Leave Petition to appeal against this judgment was rejected by the Hon'ble Supreme Court.

14. The superior courts have a right and obligation to set aside the orders obtained by fraud and not allow perpetuation of the benefits obtained by fraud. This is all the more true where persons who exercise the police powers of the state are involved in and are beneficiaries of fraud committed by them. The respondent Nos.[4] to 38 are appointed as State Excise Inspector. They exercise the police powers of the State to Supervise and regulate trade in liquor. Appointment of the persons of such posts, if obtained on the basis of fraud, cannot be sustained. The State wants to take appropriate action against them but doubts whether the orders passed by M.A.T., writ petition against one of which was summarily dismissed prevent it from enquiring into the allegations of fraud. We have no doubt that the State has a power to enquire and find out if any fraud is committed. If at all the State feels any constraints we hereby remove the shackles apparently faced by it making an enquiry whether the respondent Nos.[4] to 38 (except respondent Nos.20 and

32) have obtained medical certificates fraudulently and holding appropriate enquiries against them."

9. While adverting to the facts of the present case, we may now highlight our observations and findings: i. there is a categorical finding in the impugned order dated 18.02.2021 that there is no person by the name of Nagarabai Tanaji Palave residing in the jurisdiction of Village - Mandave, Taluka - Malshiras; despite which, without conducting any enquiry, the Respondent No.2 Collector has given a conclusive finding that the order dated 14.06.2016 pertained to Nagarabai Tanaji Palave and not the ii. the Respondent No.2 - Collector in his Affidavit-in-Reply 10 of 14 dated 12.04.2021 has categorically stated that "At the time of hearing it is also found that there is no person by the name of Smt. Nagarabai Tanaji Palve in the Village Mandave, Taluka Malshiras, District Solapur, only Nagarabai Jaywant Palave is resident of said Village." iii. that admittedly there is only one "Nagarabai" i.e. Nagarabai Jaywant Palave in existence; iv. that before passing the order of disqualification dated 14.06.2016, Nagarabai Jaywant Palave was served with two specific show cause notices for hearing on 07.05.2016 and 24.05.2016 issued by the Tahsildar; that both the said notices were admittedly received by Rajendra Jaywant Palave, son of Nagarabai; that by reply dated 03.06.2016 Nagarabai Jaywant Palave replied to the contents of the two notices stating that her son Rajendra Jaywant Palave will submit the election expenses on her behalf; that the disqualification order dated 14.06.2016 is passed under Section 14B of the said Act against "Nagarabai Jaywant Palave" wherein there is a clear reference to the enquiry conducted by the Collector, Solapur and the notices issued to Nagarabai Jaywant Palave in respect of non-submission of her election expenses; therefore Nagarabai Jaywant Palave 11 of 14 admittedly stood disqualified and ineligible for contesting election as Member for a period of 5 years from 14.06.2016. Hence, it is beyond doubt that the disqualification order dated 14.06.2016 is passed against Nagarabai Jaywant Palave i.e. the Respondent No.5; v. that the Respondent No.5 has taken undue advantage of the incorrect name mentioned / typed in the cause title of the disqualification order dated 14.06.2016 as "Nagarabai Tanaji Palave" and the same name having been reflected in the Government Gazette dated 03.02.2017 as having stood disqualified; due to this mistake of having an incorrect name reflected in the aforementioned two documents, Respondent No.5 in 2020-2021 fraudulently filed her nomination and stated that she had not incurred any disqualification and was eligible for contesting the election.

10. From the material on record, it is clearly evident that Respondent No.5 has taken undue advantage of the mistake occurring in the mention of her name as "Nagarabai Tanaji Palave" in the cause title her disqualification order dated 14.06.2016 and the Government Gazette dated 03.02.2017 and is guilty of misrepresentation.

11. What is equally shocking is the fact that despite ample 12 of 14 material on record, the Respondent No.2 - Collector has turned a blind eye to the same; that it is the duty of the Respondent No.2, being a statutory officer hearing an election Dispute Application under the said Act to investigate and unearth the fraud on the basis of material placed on record. In the present case, the fundamental fact is that no person by the name of "Nagarabai Tanaji Palave" has appeared before the Respondent No.2 while conducting his enquiry and hearing the Dispute Application filed by the Petitioner in 2021; infact no person by the name of "Nagarabai Tanaji Palave" could have appeared as no such person exists.

12. We would also like to refer to the certificate dated 01.02.2021 issued by the Talathi of Village - Mandave clearly records that no person by the name of "Nagarabai Tanaji Palave" exists in Village - Mandave; similarly the certificate dated 03.02.2021 issued by the Gramvikas Officer, Grampanchayat - Mandave states that since the last 15 to 20 years no person by the name of "Nagarabai Tanaji Palave" has been a resident of Village - Mandave and the name of "Nagarabai Tanaji Palave" does not appear on the Grampanchayat Electoral Rolls for the years 2015 as well as 2020.

13. Though the Respondent No.5 has appeared before us through an Advocate she has chosen not to file any response / reply. 13 of 14 In view of the above discussion and findings, we hold that the declaration dated 28.12.2020 given by Respondent No.5 - Nagarabai Jaywant Palave to the Election Returning Officer is a false declaration since on the date of the said declaration Nagarabai Jaywant Palave stood disqualified and was ineligible for contesting the election due to the subsistence of the order dated 14.06.2016. We further hold that the decision of the Election Returning Officer dated 31.12.2020 after scrutiny of the application filed by Respondent No.5 to allow the Respondent No.5 to contest the election as illegal and bad in law and set aside the same; as a consequence of which the impugned order dated 18.02.2021 passed by the Respondent No.2 - Collector accordingly stands quashed and set aside. The election of the Respondent No.5 in 2021 as the Member of the Grampanchyat i.e. Panchayat Samiti - Mandave is therfore set aside. The Respondent No.2 is directed to initiate appropriate steps against Respondent No.5 - Nagarabai Jaywant Palave under the provisions of the said Act and / or in accordance with law as deemed fit for misrepresentation and fraud as observed hereinabove.

14. In view of the above directions and findings, the Writ Petition stands disposed of. However, there shall be no order as to costs. [ MILIND N. JADHAV, J. ] [ S. J. KATHAWALLA, J.]