Constitutional Courts Must Prevent Fraudulent Gains, Writ Of Certiorari Can Be Denied Over Allegations Of Fraud Requiring Enquiry: J&K High Court

“It is the duty of the constitutional courts to ensure that no one gets the benefit of fraudulent acts and the writ of certiorari being a discretionary remedy can be refused, when the court is of the opinion that the allegations of fraud are required to be enquired in to, to do the substantial justice between the parties”, observed Justice Rajesh Oswal.

The court made these observations in response to a dispute dating back to 1967 when a Mutation was attested granting ownership rights over land in Village Jagatpur to the predecessors of the petitioners and respondents. The land was initially allotted under a Government Order to the forefathers of the parties, who were non-camp refugees from Pakistan-occupied Kashmir (PoK).

The petitioners, represented by Smt. Amrit Kour and her sons, claimed that the land was jointly allotted to their father, Surinder Singh, and his brother, Puran Singh. However, the respondents, represented by Jagjit Singh, Jashpal Singh, and others, contested this, alleging that Surinder Singh fraudulently included their family members in his Form 'A' to claim a share in the land.

The respondents filed a revision petition in 2014, challenging the 1967 mutation after a delay of 46 years. The Divisional Commissioner allowed the revision in 2017, setting aside the mutation and ordering a fresh enquiry. The petitioners challenged this order, leading to the instant writ petitions.

Petitioners' Counsel, Mr. S.M. Chowdhary, argued that the mutation was validly attested in 1967, with Surjit Singh (predecessor of respondents) present during the attestation. He contended that the respondents were aware of the mutation and had even inherited the land based on it. He further argued that the revision petition was filed after an inordinate delay of 46 years, which should not have been condoned without valid reasons.

Respondents' Counsel, Mr. Abhishek Wazir, countered that the mutation was fraudulently obtained by Surinder Singh, who included the respondents' family members in his Form 'A' without their knowledge. He argued that the mutation was attested without proper notice to all interested parties, particularly Jagjit Singh and Jashpal Singh, who were not present during the attestation. He also pointed that Surinder Singh had received cash relief in 2002, showing himself as a separate family, which contradicted the petitioners' claim of joint ownership.

Justice Rajnesh Oswal meticulously examined the facts and legal arguments presented by both parties. The court noted that while Surjit Singh was present during the attestation of Mutation, his brothers, Jagjit Singh and Jashpal Singh, were not. This raised serious questions about the validity of the mutation, as not all interested parties were given an opportunity to be heard.

The court observed that the discrepancy in the Forms 'A' filed by Puran Singh and Surinder Singh was a critical issue. Puran Singh's Form 'A' listed his family members, while Surinder Singh's Form 'A' included the same family members, suggesting fraudulent inclusion.

“Same family members could not have been mentioned in two different Forms “A‟. If such thing has happened, it amounts to fraud and fraud vitiates all proceedings. It needs to be mentioned that vide order dated 18.08.2020, the respondent No.4 has returned a finding against the petitioners, after conducting de novo enquiry”, the court opined.

The court emphasized that fraud vitiates all proceedings, and any order obtained through fraud is a nullity in the eyes of the law. Citing the judgment in Raja Begum (Mst.) & Ors. vs J&K Special Tribunal & Ors., the court reiterated that fraud can be questioned at any time, and courts are obligated to refuse to endorse fraudulent acts.

The court also referred to the Supreme Court's judgment in Commr. of Customs (Preventive) v. Aqfloat Textiles (I) (P) Ltd., which held that forged documents have no legal existence, and fraud extends the period of limitation. Justice Oswal emphasized that the allegations of fraud in this case required a detailed enquiry to ensure justice.

In view of this the court dismissed the petition finding no illegality in the Divisional Commissioner's order to conduct a fresh enquiry. The court allowed the petitioners to file an appeal against the Tehsildar's order dated August 18, 2020, within 30 days, clarifying that the period of limitation would not be a bar.

Case Title: Smt Amrit Kour Vs UT Of J&K

Citation: 2025 LiveLaw (JKL) 84

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