Case Note & Summary
The case involved two writ petitions challenging a slum rehabilitation scheme on MHADA land in Bandra East, Mumbai. The petitioners claimed to be MHADA tenants and contested their inclusion in the slum scheme. During the proceedings, an interim application (IA) was filed seeking action under Section 340 of the Code of Criminal Procedure, 1973, alleging that MHADA had fabricated an affidavit regarding the withdrawal of a No Objection Certificate (NOC) to the Slum Rehabilitation Authority (SRA). The applicant argued that the affidavit dated 17th February 2023, supposedly filed by MHADA, was not present in the physical court record, thereby committing fraud on the court. The Registry confirmed the absence of a physical copy. MHADA's counsel countered that the affidavit was affirmed by Sanjaykumar Bhosale, Deputy Engineer, and e-filed in Writ Petition (L) No. 2217 of 2019 following the High Court's administrative directions. Copies were served on all parties, and the SRA subsequently referred to this affidavit in its own filing. The developer also confirmed receiving a copy by email. The deponent was present in court and verified the affidavit's authenticity. The court examined the evidence and concluded that no fraud had occurred; the affidavit was genuine and properly served. In light of these findings, the applicant's counsel, on instructions, did not press the interim application, and the IA was disposed of accordingly.
Headnote
A) Criminal Procedure - Fraud on Court - Initiation of Proceedings Under Section 340 CrPC - Code of Criminal Procedure, 1973, Section 340 - The applicants sought to initiate perjury/fraud proceedings against MHADA on the ground that an alleged affidavit was not found in the physical record. The court, after verifying the facts, found that the affidavit was properly affirmed, e-filed under administrative directions, and served on all parties; thus, no fraud on court was committed. Held that the application was not pressed in view of these findings (Paras 1-3).
Issue of Consideration
Whether the absence of a physical copy of an affidavit in the court record, when the affidavit was e-filed and served on all parties, constitutes fraud on the court warranting action under Section 340 of the Code of Criminal Procedure, 1973
Final Decision
The Court found that the affidavit was authentic, properly affirmed, e-filed under the High Court's administrative directions, and served on all concerned, thereby negating any claim of fraud. Consequently, the applicant's counsel, on instructions, did not press the interim application, and the IA was disposed of.
Law Points
- Legal points not extracted
- Section 340 CrPC proceeding requires factual basis of fraud
- e-filing under administrative directions constitutes valid filing
- service of affidavit on parties negates claim of fabrication
Case Details
2024 LawText (BOM) (02) 207
Writ Petition No. 859 of 2024 with Interim Application (ST) No. 5553 of 2024
Mr Vijay Kurle, Mr Bhushan Deshmukh, Mr Jagdish G Aradwad (Reddy), Mr Mayur Khandeparkar, Mr PG Lad, Ms MP Thakur AGP, Mr Atithi Abhay
Shamsunnisa Saeed Ahmed, Mohd. Javed Zakir Ali, Salim Ismail Mulla, Abdul Rashid, Abdul Kadar
State of Maharashtra (Apex Grievance Redressal Committee), Slum Rehabilitation Authority, Basera Co-operative Housing Society Ltd, Budhpur Buildcon Pvt Ltd, Maharashtra Housing and Area Development Authority (MHADA), Mumbai Metropolitan Region Development Authority (MMRDA)
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Nature of Litigation
Civil writ petitions challenging a slum rehabilitation scheme on MHADA land and an interim application alleging fraud on the court regarding a fabricated MHADA affidavit.
Remedy Sought
The applicants sought initiation of proceedings under Section 340 CrPC against MHADA for fraud on the court, alleging fabrication of an affidavit, and directions for investigation.
Filing Reason
The applicants claimed that an affidavit dated 17th February 2023, allegedly filed by MHADA withdrawing cancellation of an NOC to SRA, was not found in the physical court record, thus constituting a fraud on the court.
Previous Decisions
Previous decisions not referenced
Issues
Whether the absence of a physical affidavit from court records, when the affidavit was e-filed and served on all parties, constitutes fraud on the court under Section 340 CrPC.
Submissions/Arguments
Mr Vijay Kurle, for the applicants, argued that the MHADA affidavit was not found in the physical record, indicating fabrication, and that its contents were false since MHADA could not have cancelled an NOC it never validly gave.
Mr PG Lad for MHADA countered that the affidavit was properly affirmed by the Deputy Engineer, e-filed pursuant to administrative directions, and copies were served on all parties; the SRA and developer also confirmed receipt and reliance on the affidavit.
Ratio Decidendi
An allegation of fraud on the court under Section 340 CrPC fails when evidence shows the disputed document was properly executed, e-filed per court directions, and served on all parties, and no fabrication is proven.
Judgment Excerpts
the Affidavit dated 17th February 2023 by MHADA regarding the NOC to SRA was indeed affirmed.
the Affidavit was e-filed in Writ Petition No 2217 of 2019 sometime in February 2023.
Copies were served on all other Advocates.
the Developer confirms that a copy of Mr Bhosale’s Affidavit was served on the Developer as well by Utangale & Company by an email on 20th February 2023.
Procedural History
Two writ petitions were filed challenging a slum rehabilitation scheme on MHADA land in Bandra East, Mumbai. During pendency, Interim Application (ST) No. 5553 of 2024 was taken out in Writ Petition No. 859 of 2024, alleging fraud on the court regarding a missing MHADA affidavit. The Court heard the IA on 22–23 February 2024.
Acts & Sections
- Code of Criminal Procedure, 1973: Section 340
