Full Judgment Text
1 wp-10219-2004.J.25.7.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10219 OF 2004
Rajhans R. Vhatkar through Legal Heirs
Smt. Kempava R. Vhatkar through Legal
Heirs :
]
]
1. Dilip Balkrishna Vhatkar,
Age 65 years, Occ. Retired
]
]
2. Dattatray Balkrishna Vhatkar,
Age 61 years, Occ. Business
]
]
3. Changdeo Balkrishna Vhatkar,
Age 54 years, Occ. Service.
]
]
4. Sukhdev Balkrishna Vhatkar,
Age 51 years, Occ. Business,
]
]
All are r/at Block No. B/5, 632/16/22A, B
Ward, Jawahar Nagar Hsg. Society, Jawahar
Nagar, Kolhapur 416 012
]
]
]
Petitioners
Through its Power of Attorney Holder
Mr.Vaman Shripati Shinde
]
]..
Versus
1. Shri Rajaram Shivaji Pol,
(Since deceased) through legal heirs :
]
]
]
]
]
]
]
]
]
]
]
]
]
]
]
(i) Shri Suresh Rajaram Pol, aged about 45
years, Occupation : Service,
(ii) Shri Chandrakant Rajaram Pol, Indian
Inhabitant, Occupation : Business,
(iii) Smt. Putlabai Rajaram Pol, Age about 60
years, Occupation : Housewife, (since
deceased) through legal heirs, respondent
Nos.1, 2 and 4
(iv) Smt. Baby Rajaram Pol, Indian inhabitant,
aged about 24 years, Occupation Housewife
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All residing at Hupari, Tal. Hatkanagale, Dist.
Kolhapur.
]
]
Respondents
2. Smt. Ratnabai Ramchandra Vatkar,
R/o. Halloli, Tal. Hatkanagale, Dist. Kolhapur.
]
]..
WITH
WRIT PETITION NO. 2456 OF 2012
Smt. Kempava R. Vhatkar deleted
since deceased Rajhans R. Vhatkar through
Legal heirs
]
]
]
1. Dilip Balkrishna Vhatkar,
Age 65 hears, Occ. Retired
]
]
2. Dattatray Balkrishna Vhatkar,
Age 61 years, Occ. Business
]
]
3. Changdeo Balkrishna Vhatkar,
Age 54 years, Occ. Service.
]
]
4. Sukhdev Balkrishna Vhatkar,
Age 51 years, Occ. Business,
]
]
All are r/at Block No. B/5, 632/16/22A, B
Ward, Jawahar Nagar Hsg. Society, Jawahar
Nagar, Kolhapur 416 012
]
]
]
Petitioners
Through its Power of Attorney Holder
Mr.Vaman Shripati Shinde
]
]..
Versus
1.
Suresh Rajaram Pol,
]
]
]
]
]..
]
Chandrakant Rajaram Pol
2.
Both : Adults, Occupation – Agriculture
Residing at Hupari, Tal. Hatkanagale, Dist.
Kolhapur.
Respondents
Shri.S.S.Redekar, for Petitioner in Writ Petition No.10219 of 2004.
Mr.P.G.Karande, for Petitioner in Writ Petition No.2456 of 2012.
Mr. Bhushan Walimbe for respondent Nos.1 (i) to (iv) in Writ Petition
No.10219/2004 and for respondent Nos.1 & 2 in Writ Petition
No.2456/2012.
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CORAM : N.J. JAMADAR, J.
rd
Reserved for Judgment on : 3 April 2019
th
Judgment Pronounced on : 26 July 2019
JUDGMENT :
1. These petitions under Article 227 of the Constitution of India were
heard together and can be conveniently disposed of by a common
judgment as both the petitions have their genesis in the jural
relationship between the deceased petitioner and respondent as landlord
and tenant.
2. Though the litigation has a chequered history of almost 45 years,
with more than a dozen proceedings, the background facts, necessary
for the determination of these petitions, can be summarized as under :
Late Rajhans R. Vhatkar, the deceased petitioner (hereinafter
referred to as landlord) was the original holder of the agricultural land
bearing Survey No.RS 18/A1, admeasuring 4 Acre and 12 Guntha,
situated at Hatkanagale, District Kolhapur (hereinafter referred to as ‘the
suit land’). Late Rajaram Bhivaji Pol, the deceased respondent
(hereinafter referred to as tenant) claimed to be a tenant thereof.
Alleging obstruction to his peaceful possession and cultivation of the suit
land, the tenant instituted a suit bearing No.R.C.S. 353 of 1976 for
perpetual injunction against the landlord. In the said suit, an issue of
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tenancy came to be framed and in accordance with the provisions
contained in Section 85(A) of the Maharashtra Tenancy and Agricultural
Lands Act, 1948 (hereinafter referred to as ‘the Act, 1948’), the Civil
Court referred the said issue to the Agricultural Land Tribunal (ALT) for
determination. It was registered as Tenancy Case No.6 of 1978. ALT
th
Tahasildar, Hatkanagale, by judgment and order dated 12 October
1978, returned a finding that Rajaram was in possession of the suit land
as a tenant thereof and was also in actual possession thereof on the date
of the institution of the suit. The landlord preferred Tenancy Appeal
No.17 of 1979 against the aforesaid determination by Tahasildar & ALT.
th
By judgment and order dated 28 July 1983, in Tenancy Appeal No.17
of 1979, the Subdivisional Collector, Karvir Division, Kolhapur was
persuaded to allow the appeal and set aside the order passed by the
ALT. The name of the respondent–Rajaram was directed to be deleted
from column No. 7A of the 7/12 extract of the suit land.
3. Being aggrieved by the judgment and order of the appellate
authority, the respondents approached the Maharashtra Revenue
Tribunal (MRT) by invoking its revisional jurisdiction. The MRT, by
st
judgment and order dated 21 April 1984, in Revision No. TRAKP
221/1983, was persuaded to set aside the order passed by the appellate
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authority and restore the order passed by Tahsildar & ALT holding the
respondent to be a tenant of the suit land.
4. The landlord challenged the aforesaid order of MRT in Writ
Petition No. 3485 of 1984, before this Court. By judgment and order
th
dated 10 December 1993, this Court dismissed the writ petition and
concurred with the findings recorded by the MRT that late Rajaram was
the tenant of the suit land. The Special Leave Petition preferred by the
landlord bearing No.SLP (Civil) No.21941 of 1994 came to be dismissed
rd
by the Supreme Court on 3 January 1995.
5. As the finding of the authority under the Act, 1948 regarding the
tenancy attained finality, Regular Civil Suit No.353 of 1976 came to be
th
decreed by the Civil Court, by judgment and decree dated 16 August
1997. It seems that the said decree of perpetual injunction was not
subjected to further appeal.
6. The trigger for second round of litigation between the parties was
th
provided by a communication dated 6 April 1996, by the Subdivisional
Officer, Ichalkaranji declining to delete the name of the tenant from the
record of rights of the suit land. The landlord had sought correction in
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the record of rights on the premise that the landlord Rajhans was under
the guardianship of his natural mother Smt.Ratnabai, who was
th
appointed by the District Judge, Kolhapur on 9 January 1954. The late
Ratnabai was not legally empowered and competent to lease out the
minor’s property without the specific permission of the District Court.
Since the tenant Rajaram claimed to have been inducted in the suit land
in the year 196667 by the late Smt. Ratnabai, the alleged tenancy was
nonest in the eye of law.
7. As the Subdivisional Officer, Ichalkaranji declined to entertain
the application to delete the name of Rajaram as a tenant of the suit
land, the landlord assailed the said order by filing revision application
under Section 257 of the Maharashtra Land Revenue Code, 1966 (‘the
Code’). The Additional Collector, Kolhapur, by judgment and order
th
dated 8 July 1997, was persuaded to dismiss the Revision Application
No.9 of 1996 holding, interalia, that the question of tenancy of the
respondentRajaram has attained finality and the authorities under the
Code were not competent to enquire into the question as to whether the
tenancy was created in contravention of the provisions of the Guardians
and Wards Act, 1890.
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8. Being aggrieved by and dissatisfied with the aforesaid order of the
Additional Collector, Kolhapur, the landlord has invoked the writ
jurisdiction of this Court in Writ Petition No.10219 of 2004, interalia,
praying for a declaration that the respondentRajaram has not acquired
any legal right to possess the suit land as a tenant thereof.
9. In the year 1999, another round of litigation commenced with the
landlord preferring an application under Section 32/P(2)/(b) of the Act,
1948 for regaining the possession of the suit land on the premise that
the tenant failed to exercise his right to purchase the land within the
period stipulated under Section 32O(1) of the Act, 1948. Whereas, the
tenant filed an application under Section 32O/(1) read with Section
32G of the Act, 1948 for determination of the purchase price of the suit
land.
rd
10. By an order dated 23 February 1999, the Additional Tahasildar
and ALT was persuaded to reject the application preferred by the
landlord under Section 32P(2)(b) of the Act, 1948 for regaining the
possession of the suit land. The Tahasildar & ALT, Hatkanagale, by
nd
judgment and order dated 22 October 1999 in Application No.32O
Hupri2/1999 was persuaded to hold that the tenantsrespondents were
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entitled to purchase the suit land under Section 32G of the Act, 1948
and determined its purchase price at Rs.4,120/.
11. True to the litigative spirit, the landlord preferred the appeals
bearing No.8 of 1999 and 15 of 1999 against the orders passed on the
applications under Section 32(P)(2)(b) and 32O read with Section 32G
of the Act, 1948, respectively. The Subdivisional Officer, Division
Hatkanagale dismissed both the appeals by separate judgments and
th
orders dated 6 June 2000. Still unsatiated, the aforesaid orders passed
by the Subdivisional Officer in Tenancy Appeal Nos. 8 of 1999 and 15
of 1999 were assailed before MRT by preferring Revisions bearing
Nos.49 of 2000 and 50 of 2000.
th
12. The learned Member, MRT, by judgment and order dated 16
April 2002, dismissed both the Revision Applications. The landlord
assailed the order passed by the MRT in revision application No.49 of
2000 and 50 of 2000 and the orders passed by the Lower Authorities, by
preferring Writ Petition Nos.4611 of 2002 and 4612 of 2002. Those writ
th
petitions were also dismissed by this Court by order dated 26 August
2002.
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13. A new front of litigation was opened by the landlord by filing Writ
Petition No. 6691 of 2003 before this Court. In the said petition, it was
alleged that the orders passed by ALT in applications under Section 32
O(1) and 32 P(2)(b) of the Act, 1948 were obtained by fraud played by
the tenant by producing copies of the orders allegedly passed by this
th th
Court on 19 August 1998 and 8 January 1998 in Civil Application No.
4164 of 1998 in Writ Petition (Stamp) No. 27300 of 1997 when, in fact,
no such orders were passed by this Court. The ALT proceeded on the
premise that the application under Section 32O/(1) of the Act, 1948
was within the stipulated period of limitation if computed from the
passing of the said orders. Thus, the orders of ALT, the appellate
authority and MRT be quashed and set aside.
nd
14. In the said petition, this Court, by an order dated 22 January
th
2003, primafacie found that no order was passed by this Court on 19
August 1998 in Writ Petition (Stamp) No. 27300 of 1997 and the
authorities below were made to believe that, in fact, there was such an
order passed by this Court. Thus, this Court directed to issue notice to
the tenant and Advocate Shri R.N. Patil, who represented the tenant
before the ALT and submit their explanation. Ultimately, by order dated
th
30 June 2003, this Court declined to interfere with the orders passed
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by the authorities under the Act holding, interalia, that the second writ
petition against the same judgment cannot be entertained, even if the
grievance of the petitioner is that the orders passed by this Court have
been forged by the other side. The petition was thus allowed to be
withdrawn with permission to the landlord to take recourse to
appropriate remedy, as may be permissible in law.
15. It seems that in pursuance of the aforesaid liberty, the landlord
filed a complaint before the Subdivisional Officer, Ichalkaranji. The
SDO, Ichalkaranji construed it to be an appeal and numbered it as
Tenancy Appeal No. 222 of 2004. The SDO was persuaded to hold that
th
since no order was passed by this High Court on 19 August 1998 in
Writ Petition (Stamp) No.27300 of 1997, the copy of the order produced
before the ALT was the forged one. It was further held that the order
passed by the ALT on the basis of such nonexisting order, was liable to
be quashed and set aside. Accordingly, the order passed by ALT on an
application of the tenant under Section 32O(1) of the Act, 1948 and the
certificate issued pursuant thereto under Section 32 M of the Act, 1948
th
were quashed and set aside, by the judgment and order dated 24
January 2005.
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16. Being aggrieved, the tenants preferred Revision bearing No.
TNC/REV/29/2005/KP before MRT. The learned Member, MRT, by
th
judgment and order dated 24 January 2012, was impelled to allow the
revision and set aside the judgment and order passed by the appellate
authority in Tenancy Appeal No.222 of 2004 and restore that of the
TahasildarALT, Hatkanagale in Tenancy Case No. 32OHupri2/1997.
The learned Member, MRT was of the view that there were serious
defects in the procedure followed by the appellate authority in as much
as no proper appeal was presented to the appellate authority nor was it
in conformity with the rules of the B.T. & A.L. Rules, 1956. MRT also
held that without condoning the delay in preferring the appeal, the
appellate authority could not have entertained the appeal and set aside
the orders passed by the ALT. The landlord has assailed the aforesaid
order of MRT by preferring the instant writ petition No. 2456 of 2012.
17. I have heard Shri S.S. Redekar, the learned counsel for the
petitioners in Writ Petition No. 10219 of 2004, Shri P.G. Karande, the
learned counsel for the petitioners in Writ Petition No. 2456 of 2012 and
Shri Bhushan Walimbe, the learned counsel for the respondents, at
considerable length. I have carefully perused the material on record as
well.
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18. The main plank of the submissions canvassed on behalf of the
petitioners is that the orders passed by the tenancy authorities under
Section 32O and Section 32P(2)(b) of the Act, 1948, are nonest in the
eye of law. The initial orders passed by ALTHatkanagle on the
applications under Section 32O and Section 32P of the Act, 1948
having been obtained by practicing fraud upon the said authority do not
partake the character of orders, and are null and void. The situation is
exacerbated by the fact that the respondents had the audacity to forge
the orders passed by this Court by falsely proclaiming that this Court
th th
had passed the orders on 19 August 1998 and 8 January 1998 in Civil
Application No. 4146 of 1998 in Writ Petition (Stamp) No. 27300 of
1997 when, in fact, no such orders were passed by this Court. In the face
of such egregious fraud, the learned Subdivisional Officer was within
his rights to allow Tenancy Appeal No.222 of 2004 and set aside the
order passed by ALT in the proceedings under Section 32O of the Act,
1948, and cancel the certificate issued under Section 32M thereof, on
the strength of the said order. Conversely, the learned Member, MRT
committed a grave error in setting aside the order passed by the Sub
divisional Officer without properly appreciating the nature and gravity
of the fraud committed by the respondents and its consequence upon the
very existence of the order passed by ALT under Section 32O. The
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learned Member, MRT, could not have resorted to the alleged
procedural defects in the proceedings before the Subdivisional Officer
when the order passed by ALT was itself a nullity in the face of the
fraud, urged the learned counsel for the petitioners.
19. In opposition to this, Shri Walimbe, the learned counsel for the
respondents countered the submissions on behalf of the petitioners with
tenacity. Shri Walimbe would urge that the petitioners have resorted to
litigative ingenuity with a design to deprive the respondents of the
legitimate protection available to them under the provisions of Act,
1948. Taking the Court through the history of litigation and multiple
rounds thereof, it was urged by the learned counsel for the respondents
that the Subdivisional Officer could not have set at naught the findings
recorded by not only MRT but this Court as well, to the effect that the
respondents were entitled to purchase the suit land in accordance with
the provisions contained in Section 32O of the Act, 1948. The Sub
divisional Officer, had fallen in error in entertaining the grievance made
by the petitioners of the alleged fraud in placing reliance upon the
orders passed by this Court, and in treating the said grievance as an
appeal. In the process, the Subdivisional Officer committed several
grave procedural irregularities including entertaining the appeal in the
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nd
year 2004, against an order passed by ALT on 22 October 1999,
without condoning the delay. The learned Member, MRT was, therefore,
justified in interfering with the wholly unsustainable order passed by the
Subdivisional Officer which was clearly contrary to law and riddled
with substantial defects in procedure resulting in severe miscarriage of
justice.
20. Evidently, the edifice of the submissions canvassed on behalf of
the petitioners is rested on the alleged fraud practiced by the
respondents. Those submissions are required to be considered in the
backdrop of the challenge to the order passed by the learned Member,
rd
MRT in Revision Application No. 29 of 2005 dated 23 January 2012,
which has been assailed in Writ Petition No. 2456 of 2012.
WRIT PETITION NO. 10219 OF 2004
21. So far as Writ Petition No. 10219 of 2004, it would be suffice to
note that the endeavour of the petitioners to challenge the order passed
by the Additional Collector, Kolhapur in Revision Application No.9 of
1996 and the order passed by the Subdivisional Magistrate, Ichalkaranji
th
dated 6 April 1996, whereby the Subdivisional Magistrate declined to
entertain the application to delete the name of Rajaram as a tenant to
the suit land, by invoking the writ jurisdiction of this Court, does not
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deserve to be countenanced for reasons more than one. Firstly,
indisputably, the finding that Rajaram was the tenant of the suit land
had attained finality with the dismissal of the Special Leave Petition on
rd
3 January 1995. Secondly, the authorities under the Land Revenue
Code, in the backdrop of the said determination, could not, and rightly
did not, embark upon an enquiry as to whether the respondentRajaram
was lawfully inducted as a tenant in the suit land by Ratnabai, the
mother of deceased Rajhans. Thirdly, the petitioners could not have
agitated the said issue before the tenancy authority, much less Revenue
Authority, in view of the orders passed by this Court in Writ Petition
th
No.4611 of 2002 on 26 August 2002, wherein it was observed, in clear
and explicit terms, that when the parties were litigating on a reference
made by the Civil Court, the point of validity of the lease was not raised
and thus by the principle of constructive resjudicata , the petitioners
would not be entitled to raise that point. In this view of the matter, the
Writ Petition No. 10219 of 2004 fails.
WRIT PETITION NO. 2456 OF 2012
22. Before adverting to deal with the core challenge based on fraud, it
may be apposite to note the nature of the proceedings under Section 32
O of the Act, 1948 and the manner in which ALT has approached the
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question of entitlement of the tenant to purchase the suit land. The
relevant part of Section 32O of the Act, 1948 reads as under :
“ 32O. Right of tenant whose tenancy is created after tillers'
day to purchase land. (1) In respect of any tenancy created after
the tillers' day [by a landlord (not being a serving member of the
armed forces)] notwithstanding any agreement or usage to the
contrary, a tenant cultivating personally shall be entitled within one
year from the commencement of such tenancy to purchase from the
landlord the land held by him or such part thereof as will raise the
holding of the tenant to the ceiling area.
[Deleted]
[(1A) A tenant desirous of exercising the right conferred on him
under subsection (1) [ ] shall give an intimation in that behalf *
to the landlord and the Tribunal in the prescribed manner within
the period specified in that subsection.]
23. From a plain reading of the aforesaid provision, it becomes clear
that a tenant, whose tenancy is created after tillers' day by a landlord,
who is not a serving member of armed forces, is entitled to purchase the
land cultivated by him as a tenant thereof. This right of the tenant to
purchase the land is conditioned by stipulations as to time and extent of
holding. The tenant is enjoined to purchase the land within one year
from the commencement of the tenancy. The tenant can purchase the
land only to the extent as would raise his holding to the ceiling area.
The manner of exercise of the right to purchase is provided by sub
section (1A). The tenant has to give an intimation of his desire to
purchase the land to the landlord as well as the tribunal in the
prescribed manner within the period stipulated by subsection (1).
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24. Unlike the provisions of Section 32 which envisages automatic
statutory transfer of ownership in favour of a tenant, who holds the land
on the tillers' day, Section 32O envisages the exercise of the choice by
the tenant to acquire ownership of the land cultivated by him by giving a
statutory intimation. Textually, the period of one year prescribed under
Section 32O(1) of the Act, 1948 is to be computed from the date of the
commencement of the tenancy. Having regard to the object of the
provisions of the Act, 1948, the aforesaid stipulation of time to exercise
the right to purchase the land by a tenant has been given a contextual
and purposive interpretation. It has been consistently held that the
period of limitation of one year will not start to run until the final
adjudication of the issue of tenancy, where the said issue is put in
contest. In the case of Laxman Dhondi Zurale, since deceased by his
1
legal heirs and Anr. Vs. Yashodabai Sripatrao Shinde , after referring
to the previous pronouncements, it was observed that until landlord
accepts the statutory tenancy or until the contention denying the
tenancy is finally and conclusively overruled, the period of one year
provided for sending intimation under Section 32O of the Act will not
commence. This position was reiterated by a learned Single Judge of this
Court in the case of Jagannath Vithu Jadhav (since deceased) through
L.Rs. Smt. Shalan Jagannath Jadhav & Ors. Vs. State of Maharashtra
1 2005(1) Bom. C.R. 273
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2
and Ors. . This proposition has a significant bearing on the controversy
at hand as the consideration of the order passed by ALT would reveal.
25. In the tenancy proceedings bearing No. 32OHupri2/1997,
instituted by the tenant for purchase of the suit land, the ALT had
framed a specific issue (No.3), namely, 'Whether the tenant has exercised
the right to purchase the suit land within the period stipulated in Section
32O(1) of the Act, 1948? The ALT was persuaded to answer the said
issue in the affirmative by recording that the intimation given by the
th
tenant under Section 32O(1)(A) on 15 March 1999 was within one
year of the final adjudication of the dispute, raised by the landlord
regarding the status of the tenant, by an order passed by this Court in
Civil Application No. 4164 of 1998 in Writ Petition (Stamp) No. 27300
th
of 1997 (Writ Petition No. 10219 of 2004), on 19 August 1998. In the
view of ALT, the limitation to purchase the suit land commenced from
th
19 August 1998 when this Court finally rejected the challenge to the
tenancy raised by the landlord. Evidently, the order passed by this Court,
the alleged copy of which was tendered before the ALT, was the basis of
the said determination. As the issue of tenancy had already been settled
in view of the finality attached to the proceedings between the parties,
the ALT was persuaded to allow the application holding it to be within
2 2013(2) Mh.L.J. 285
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the period of limitation and fixed the purchase price of the suit land at
Rs.4,120/.
th
26. As indicated above, it transpired that no such order dated 19
August 1998 in Civil Application No. 4164 of 1998 in Writ Petition
(Stamp) No. 27300 of 1997 was ever passed by this Court. In all fairness
to the learned counsel for the respondents, it must be noted that the
respondents do not profess to canvass a submission that this Court had
th
passed an order on 19 August 1998, a copy of which was tendered
before the ALT. The fact that a copy of such an order was tendered
before the ALT is borne out not only by the order passed by ALT but also
the affidavit of Shri R.N. Patil, Advocate, who represented the tenants
before the ALT. Shri R.N. Patil, Advocate affirmed that when he entered
appearance on behalf of the tenants, in the said proceedings before ALT,
there was already on record a document (page 43) purported to be a
th
typed copy of an order passed by this court on 19 August 1998 in Writ
Petition (Stamp) No. 27300 of 1997. Indubitably, the ALT was made to
believe and base his finding on a copy of the order purported to be
passed by this Court, which was never passed.
27. The submission of fraud practiced upon the ALT is required to be
appreciated in the backdrop of the aforesaid facts. The Subdivisional
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Officer, before whom the landlord made a grievance about the order in
Tenancy Appeal No. 32OHupri2/1999 having been obtained by fraud,
was impelled to hold that since there was no such order passed by this
Court, the order passed by the ALT was vitiated. In the revision before
the MRT, the landlord raised a specific contention of the order passed by
the ALT being vitiated by fraud and even placed reliance on the
judgment of the Supreme court in the case of S.P. Chengalvaraya
3
Naidu (Dead) By L.Rs. Vs. Jagannath (Dead) by L.Rs. & Ors. . The
learned Member, MRT brushed aside this submission by observing that
neither any fraud was committed by the tenants on the lower authority,
nor MRT was a proper forum to deal with the submissions based on
fraud, and, thus, the challenge was negatived. Instead, the MRT
proceeded on the premise that no proper appeal was presented by the
tenants; the Subdivisional had no jurisdiction to set aside the earlier
orders; passed in the Tenancy Appeal No. 15 of 1999 (wherein the very
same order under Section 32O in Tenancy Case No.2 of 1999 was
assailed), and revision thereagainst. The MRT, thus, held that there
could be no second challenge to the order passed by ALT before the
authorities under the Act, 1948 and, therefore, the order passed by the
Subdivisional Officer in Appeal No. 222 of 2004 was without
jurisdiction and bad in law.
3 (1994)1 SCC 1
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28. Whether the aforesaid approach of MRT is justifiable? For an
answer to this question, it is imperative to note the vitiating effects of
fraud on the proceedings before judicial or statutory authorities.
Indisputably, reliance was placed before, and by, the ALT on a document
th
which purported to be an order passed by this Court on 19 August
1998. It cannot be gainsaid that fraud was practiced upon ALT. The
consequences which emanate from such fraud are well recognized. The
integrity of the judicial or statutory proceedings is rested on solemnity
attached to the statement made before the authorities. If an outcome is
driven by making the authority to believe upon a state of affairs, which
is false to the knowledge of the person making such assertion, the very
integrity and sanctity of the adjudication or disposition, is completely
eroded. Fraud vitiates every act, irrespective of the formal seal of
approval of the judicial or statutory authority.
29. A judgment or order obtained by fraud is nonest in the eye of
law. A profitable reference in this context can be made to the judgment
of the Supreme Court in the case of S.P. Chengalvaraya Naidu (Dead)
By L.Rs. (Supra) wherein the first paragraph puts the vitiating effects of
fraud on a judicial proceedings in terse words, which reads as under :
“Fraudavoids 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
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or decree obtained by playing fraud on the court is a nullity and
honest 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.”
30. It is pertinent to note that the said case arose out of suppression
of a vital fact; suppressio veri , on the strength of which a judgment or
order was obtained. The Supreme Court has observed that the principle
of "finality of litigation" cannot be pressed to the extent of such an
absurdity that it becomes an engine of fraud in the hands of dishonest
litigants. The courts of law are meant for imparting justice between the
parties. One who comes to the court, must come with cleanhands. A
person, who's case is based on falsehood, has no right to approach the
Court. He can be summarily thrown out at any stage of the litigation.
4
31. In A.V. Papayya Sastry & Ors. Vs. Govt. of A.P. & Ors. , a case
under Urban Land (Ceiling and Regulation) Act, 1976, the Supreme
Court dealt with a situation wherein fraud was alleged to have been
practiced by making the authorities to believe that advance possession of
the land was given by the landowner to the Port Trust authorities, which
was not a correct statement. When the said fact was realized, the
Andhra Pradesh High Court recalled the earlier order, even though the
Special Leave Petition filed against the earlier order was dismissed.
4 (2007) 4 SCC 221
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While referring to a large number of authorities on the consequences
which emanate from fraud, on the sanctity of the judicial proceedings,
the Court expounded the position in the following words :
“21 Now, it is wellsettled principle of law that if any
judgment or order is obtained by fraud, it cannot be said to be
a judgment or order in law. Before three centuries, Chief
Justice Edward Coke proclaimed :
"Fraud avoids all judicial acts, ecclesiastical or temporal".
22 It is thus settled proposition of law that a judgment,
decree or order obtained by playing fraud on the Court,
Tribunal or Authority is a nullity and non est in the eye of
law. Such a judgment, decree or order by the first Court or by
the final Court has to be treated as nullity by every Court,
superior or inferior. It can be challenged in any Court, at any
time, in appeal, revision, writ or even in collateral
proceedings.”
(emphasis supplied)
32. The Supreme Court has held in no uncertain terms that an order
obtained by practicing fraud on the Court or Authority is a nullity and
nonest. The stature of the forum which passed such order, vitiated by
fraud, is of no consequence. It has to be treated as nullity by every
Court or authority, superior or inferior in hierarchy. Its validity can be
questioned and challenged before any Court. The nature of the
proceedings in which it can be attacked is not material. It can be
challenged in Appeal, Revision, Writ or even in collateral proceedings.
The procedural limitations do not override the fundamental object of
maintaining the integrity and sanctity of judicial or statutory disposition.
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Lastly, its validity can be challenged at any time. An order which is non
est in the eye of law cannot be clothed with authority by sheer lapse of
time. The aspect of law of limitation, viewed through this prism, also
becomes insignificant.
33. Reverting to the facts of the case, it appears that the learned
Member, MRT was not alive to the consequences of fraud. The learned
Member fell into error in setting aside the order passed by the Sub
divisional Officer, by taking recourse to the procedural defects. Once, it
th
becomes crystal clear that this court had not passed any order on 19
August 1997, the very substratum of the findings of ALT gets
dismantled. Inspite of a clear case of fraud, and that too by placing on
record a document purported to be a copy of the order passed by this
Court, MRT could not have brushed aside the challenge by observing
that there was no fraud nor it was a forum to agitate the same. In the
light of the aforesaid observations of the Supreme Court, it becomes
evident that the learned Member, MRT completely misdirected himself
in placing reliance on the factors which were of no relevance when the
order was based on the fraud practiced upon ALT.
34. The endevaour of the learned counsel of the respondents to
salvage the position, again based on the alleged procedural defects in
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th
the order passed by the Subdivisional Officer, dated 24 January 2005
including impressibility of entertaining the appeal, after the lapse of
more than five years from the date of the order passed by ALT, does not
merit countenance. Nor the fact that the order passed by ALT was
upheld by all the authorities including the appellate authority, revisional
authority and this Court in Writ Petition No. 4612 of 2002, infuses any
life into the said order and insulates it from the consequences which a
fraud entails. The observations of the Supreme Court in the case of A.V.
Papayya Sastry & Ors. (Supra) in paragraph Nos. 38 and 39 underscore
the fact that, even an imprimatur by the Supreme Court, to an order
obtained by fraud, does not lend any sanctity to such order. They read
as under :
“38 The matter can be looked at from a different angle as well.
Suppose, a case is decided by a competent Court of Law after
hearing the parties and an order is passed in favour of the
applicant/plaintiff which is upheld by all the courts including the
final Court. Let us also think of a case where this Court does not
dismiss Special Leave Petition but after granting leave decides the
appeal finally by recording reasons. Such order can truly be said
to be a judgment to which Article 141 of the Constitution applies.
Likewise, the doctrine of merger also gets attracted. All orders
passed by the courts/authorities below, therefore, merge in the
judgment of this Court and after such judgment, it is not open to
any party to the judgment to approach any court or authority to
review, recall or reconsider the order.
39 The above principle, however, is subject to exception of
fraud. Once it is established that the order was obtained by a
successful party by practicing or playing fraud, it is vitiated. Such
order cannot be held legal, valid or in consonance with law. It is
nonexistent and non est and cannot be allowed to stand. This is
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the fundamental principle of law and needs no further
elaboration. Therefore, it has been said that a judgment, decree or
order obtained by fraud has to be treated as nullity, whether by
the court of first instance or by the final court. And it has to be
treated as non est by every Court, superior or inferior.”
(emphasis supplied)
35. In view of the aforesaid legal position, the fact that the Sub
divisional Officer set aside the order of ALT (which was obtained by
fraud) in a proceedings which was not properly constituted is of little
significance. It would have been a different matter had ALT held that the
application under Section 32O was within the period of limitation with
reference to another factor. The very edifice of the order of ALT was the
th
order allegedly passed by this Court on 19 August 1998, which was not
the case. Once this substratum of the order of ALT goes, the order falls
through completely. It would be simply impermissible, in derogation of
the first principles of law and a travesty of justice to allow said order to
stand despite the fact that it was obtained by falsely proclaiming that an
order was passed by this Court. Neither the time lag nor the intervening
proceedings preclude this Court from setting aside the order obtained by
fraud.
36. I am mindful of the fact that the litigation has a long and
chequered history. The finding about the tenancy of the respondents has
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attained finality. The setting aside of the order passed by the Tahsildar &
ALT under Section 32O of the Act, 1948 will inevitably reopen the
question of entitlement of the tenant to purchase the suit land. The issue
would, however, be restricted to the determination as to whether the
tenant exercised the right to purchase the land within the statutory
period prescribed in Section 32O(1) of the Act, 1948. It would be,
therefore, necessary to direct TahasildarALT, Hatkanagale to determine
the said question afresh after providing an opportunity of hearing to the
concerned parties. I am of the considered opinion that it would be
imperative to pass certain orders so as to obviate further complications
till the time the ALT decides the application under Section 32O of the
Act, 1948.
37. For the foregoing reasons, I pass the following order :
WRIT PETITION NO. 10219 OF 2004
(i) The writ petition stands dismissed. No costs.
(ii) Rule stands discharged.
WRIT PETITION NO. 2456 OF 2012
The writ petition stands allowed in the following terms :
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(i) The order passed by MRT in Revision No. 29 of 2005
rd
dated 23 January 2012 stands quashed and set aside.
(ii) The order passed by the Tahasildar & ALT, Hatkanagale
nd
in Tenancy Case No. 32(O)/Hupri/2/1999, dated 22
October 1999 stands quashed and set aside.
(iii) The said proceedings No.32(O)/Hupri/2/1999 stands
restored to the file of Tahasildar & ALT, Hatkanagale.
(iv) The Tahasildar & ALT, Hatkanagale shall decide the
said application under Section 32O after providing an
opportunity of hearing to all the concerned parties and in
accordance with law as expeditiously as possible and
preferably within a period of four months from the date of the
communication of this order.
(v) The certificate granted under Section 32M of the Act,
1948 in pursuance of the said order shall remain suspended
during the pendency of the said proceedings.
In the event ALT holds that the tenants are entitled to
purchase the land under Section 32O(1), the certificate would
stand revived. However, if the ALT holds against the tenants,
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then the said certificate would stand cancelled from the date of
issue and all the consequences in law would follow.
(vi) It is hereby made clear that the petitionerslandlords are
not entitled to question the status of the respondents as
tenants of the suit land and they shall not cause obstruction to
the possession and cultivation of the suit land by the
respondents, in any manner.
(vii) It is made further clear that this Court has not
considered the merits of the matter as regards the entitlement
of the tenantsrespondents to purchase the suit land under
Section 32O of the Act, 1948 and it may be not understood to
have expressed any opinion on merits of the matter one way or
the other.
(viii) In the circumstances, there shall be no order as to costs.
(ix) Rule made absolute in aforesaid terms.
( N. J. JAMADAR, J. )
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