Suresh Vs. Smt. Mariyan and ors. - Court Judgment

Excerpt:
- administrative law - government contract: [vijender jain, c.j., rajive bhalla & sury kant, jj] government contract rejection of highest bid challenge as to held, state has no dominus status to dictate unilateral terms and conditions when it enters into contract. its actions must be reasonable, fair and just in consonance with rule of law. as a necessary corollary thereto, state cannot refuse to confirm highest bid without assigning any valid reason and/or by giving erratic, irrational or irrelevant reasons. the state is free to enter into a contract just like any other individual and the contract shall not change its legal character merely because other party to contract is state. though no citizen possesses a legal right to compel state to enter into a contract, yet latter can neither pick and choose any person arbitrarily for entering into such agreement nor can it discriminate between persons similarly circumstanced. similarly, where breach of contract at hands of state violates fundamental rights of a citizen or its refusal to enter into a contract is contrary to statutory provisions or public duty, judicial review of such state action is inevitable. likewise, if state enters into a contract in consonance with article 299 rights of the parties shall be determined by terms of such contract irrespective of fact that one of the parties to it is a state or a statutory authority. for these precise reasons the equitable doctrine of promissory estoppel has been made applicable against the government, as against any other private individual, even in cases where no valid contract in terms of article 299 was entered into between the parties. hence, if government makes a representation or a promise and an individual alters his position by acting upon such promise, the government may be required to make good that promise and shall not be allowed to fall back upon the formal defect in the contract, though subject to well known limitations like larger public interest. the state, thus, has no dominus status to dictate unilateral terms and conditions when it enters into contract and its actions must be reasonable, fair and just and in consonance with rule of law. as a necessary corollary thereto state cannot refuse to confirm highest bid without assigning any valid reason and/or by giving erratic, irrational or irrelevant reasons. -- consumer protection act, 1986 [c.a. no. 68/1986]. articles 14 & 300a: government contract noon-acceptance of highest bid held, it does not result in taking away right to property of highest bidder highest bid, per se, unless it is accepted by competent authority, and consequential sale certificate is issued, does not grant the highest bidder right to property of type which is protected under article 300a right to property is limited to confer highest bidder the right to challenge action of appropriate authority in refusing to accept highest or other bids. [air 1984 p&h 282 (fb) explained] articles 14 & 226: government contract rejection of highest bid held, highest bidder has locus standi to maintain writ petition and assail action of state government or its authorities by contending that his bid has been turned down for arbitrary, illegal or perverse reasons however in such matters, heavy onus would like on petitioner bidder to establish his allegations as state action shall always be presumed to be in accordance with law - as said above, the thumb impression appearing on application as well as statement dated 21.4.1995 were found not tallied with standard thumb impression of smt. by observing that limitation would not come in the way of setting aside a void order and also when the suit is filed on the basis of title, it has been concluded that the suit is well within limitation.arvind kumar, j.1. the appellant was one of the defendants in the suit for declaration and consequential relief of possession filed by the plaintiff-respondent no. 1. he is aggrieved with the concurrent findings returned by the courts below to the effect that the plaintiff is owner of 1/27 share of land measuring 331 kanals 12 marlas and 5/72 share of land measuring 247 kanals 15 marlas and that the judgment and decree dated 6.5.1995 passed in civil suit no. 283 of 2.3.1995 titled as satpal and ors. v. smt. mariyan and consequent mutation no. 4535 dated 30.9.1995 sanctioned on the basis thereof, are based upon fraud and misrepresentation and that the plaintiff is entitled to take over the possession from the defendants.2. the facts of the case, in nutshell, are that the plaintiff smt. mariyan got instituted a suit wherein she claimed that she is owner of the suit land, to the extent mentioned above, and that the judgment and decree dated 6.5.1995 passed in favour of defendants is based upon fraud and obtained by impersonation. it was her case that she never appeared in the aforesaid court and suffered the admitting statement, leading to the decree of the suit, rather the defendants, by producing some other lady in the court, got obtained the said decree in their favour in respect of the suit land. it was further case of the plaintiff that the defendants have no pre-existing right in the suit property. thus, a prayer was made to set aside the impugned judgment and consequent mutation entered in favour of the defendants and that the defendants be directed to restore the possession of the suit land to her.3. on the other hand, the stand of the defendants no. 2 to 4 who contested the suit, was that the said statement, leading to the decreetal of the suit was made by the plaintiff out of her own sweet will, pursuant to a family settlement arrived at between the parties. the plea of fraud and impersonation, as raised by the plaintiff, were denied and it was prayed that the plaintiff is not entitled to claim possession of any part of the suit land from them.4. after contest, the suit was decreed in the manner indicated above and the appeal preferred by the appellant was dismissed. hence this regular second appeal.5. i have heard learned counsel for the parties and have gone through the paper book carefully.6. the main stress of the learned counsel for the appellant is as to the maintainability of the suit filed by the plaintiff. although no such plea was taken while filing the written statement and obviously for that reason no issue to that effect was framed, yet the argument of learned counsel for the appellant is that as per order 23 rule 3a there is a complete bar to file separate suit to challenge the compromise decree and the court is prohibited from entertaining such a suit and that the remedy of the party aggrieved may be by way of an application before the same court. in this context, reliance has been placed on the judgment rendered by coordinating single bench of this court in the case of smt. shanti devi (dead) represented by lr. v. gian chand (2008) 150 p.l.r. 393. however, this court is of the opinion that the appellant cannot derive any benefit from smt. shanti's case (supra). in the case of ram kishan and ors. v. smt. sardari devi and ors. (2002) 132 p.l.r. 565, similar argument was raised on behalf of the appellants therein and the learned single judge, while relying upon the answer of the division bench to the question of law formulated in this regard, held as under:11. the contention raised by the learned counsel for the appellant cannot be said to be devoid of any merit, but keeping in view the fact that a division bench of this court specifically, upon instructions, formulated a question of law and answered the same in the following terms:q. what is the import of the words 'not lawful' in rule 3a of order 23 of the code; do these words have or have not the same connotation as the words 'shall not be deemed to be lawful' in the explanation to rule 3a of order 23 of the code or to be a little more specific, whether a separate suit lies to set aside the decree on the ground that the agreement or the compromise on which it is based is void having been brought about by mis-representation, undue influence or fraud etc.?ans. the words 'not lawful' occurring in rule 3a of order 23 of the code have wider content than similar words in the explanation to rule 3. the explanation to rule 3 deals with agreements or compromise which are not to be deemed to be lawful if they are void or voidable under the indian contract act, 1872 but the agreement or compromises which are not lawful as referred to in rule 3a are more general in term and are not engrafted by the limitations as inserted in the explanation appended to rule 3. if the agreement or compromise is not the result of consensus of mind of two person in regard to certain matters, viz. when the consent of one of them to the terms is obtained by the other by some illegal means, namely, by fraud, coercion or undue influence, there is in fact no compromise. rule 3a does not bar the maintainability of the suit challenging the compromise on these grounds. however, the court can in exercise of its inherent jurisdiction also relieve the party alleging fraud, coercion or undue influence of the agreement. question no. 1 is answered accordingly.12. in view of the above law laid down by a division bench of this court, which is binding on a single judge of this court, i would follow the law as laid down despite the above contention. as the division bench has held that a suit challenging a compromise decree on the ground that it was obtained by misrepresentation and fraud is maintainable, the argument of the appellants that no suit was maintainable, cannot be sustained.7. in view of the aforesaid observations, this court is of the firm opinion that the suit filed by the plaintiff was very much maintainable.8. adverting to the merits of the case, both the courts below concurrently held that the judgment and decree dated 6.5.1995 and the consequent mutation are illegal and void being based upon fraud. while arriving to the said conclusion, both the courts below took into consideration the report of finger print expert as also that of director, finger print bureau haryana, madhuban, wherein, after comparison of standard thumb impression of plaintiff with those appearing on her admitted statement recorded in the court on 21.4.1995 and application moved on same date, it was opined to be of different persons and not matched with the standard thumb impression of plaintiff. no doubt pw.3 dr. inderjit singh, handing writing expert was examined by the plaintiff, but the specimen thumb impressions were also got examined by the court from director, finger print bureau, haryana, madhuban at the instance of the defendants and they never objected the said report. not only this, it was found that on filing the said suit, notice was issued to smt mariyan (defendant therein) for 2.6.1995, however, on 21.4.1995 the file was taken up on an application allegedly moved by mariyan and her admitted statement was recorded on that date itself and thus, no notice of the suit could be issued to the defendant therein. as said above, the thumb impression appearing on application as well as statement dated 21.4.1995 were found not tallied with standard thumb impression of smt. mariyan. the plaintiff is sister of father of the appellant. the theory of family settlement between the parties was also discarded by the courts below by observing that since a hindu woman becomes absolute owner of the property possessed by her by virtue of section 14 of the hindu succession act, 1956, therefore, no person can have preexisting right therein and once the defendants had no pre-existing right in the property held by the plaintiff, there was ho question of any legal and valid family settlement between the parties. by observing that limitation would not come in the way of setting aside a void order and also when the suit is filed on the basis of title, it has been concluded that the suit is well within limitation. accordingly, it has been held that the defendants have no right to retain the possession of the suit land on the basis of judgment and decree, which was a nullity. said findings are discernible from para no. 16 of the judgment rendered by the learned first appellate court, while affirming the findings returned by the learned trial court.9. in view of the above, there is nothing to deviate from what has been concurrently held by the courts below. it cannot be said that the findings returned by the courts below suffer from any illegality or perversity or that the same are based on no evidence. no question of law, much less substantial question of law arises for determination in this regular second appeal, which is accordingly dismissed. no costs.