Full Judgment Text
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CASE NO.:
Appeal (civil) 1727 of 2008
PETITIONER:
Ganpatbhai Mahijibhai Solanki
RESPONDENT:
State of Gujarat & Ors
DATE OF JUDGMENT: 04/03/2008
BENCH:
S.B. Sinha & V.S. Sirpurkar
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO. 1727 OF 2008
[Arising out of SLP (C) No. 3198 OF 2007]
S.B. SINHA, J.
Leave granted.
1. Whether suppression of a material fact would entail allowing of an
application for condonation of 2205 days delay in filing a review application
is the core question involved herein.
2. Appellants were owners of various tracts of lands situated in the town
of Vadodara. 10,807 sq. meters of land in survey Nos. 345, 347/1 and 267
in Mazalapur were declared as surplus land under the provisions of the
Urban Land Ceiling Act, 1976 (for short "the Act") by the competent
authority. An appeal preferred thereagainst was dismissed by an Order
dated 4.1.1988 by the appellate authority, stating;
"As discussed above, no contention of the
appellant is acceptable and there is no reason to
interfere with the impugned order passed by the
Competent Authority and therefore the following
order is passed.
The appeal of the appellant is dismissed. The
impugned order dated 12/07/1984 passed by the
competent authority is confirmed.
The injunction orders passed by this office is
vacated.
The order be informed to the parties."
3. All contentions raised by the appellants were considered therein. It
was allowed to attain finality.
4. Notification under Section 10(3) of the Act was published in the
Official Gazette on 4.5.1989. A notification was also issued under Section
10(5) thereof on 23.8.1989.
Allegedly, the directions contained therein were not complied by the
appellant. Possession of the properties were said to have been taken over on
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20.4.1992. Surplus lands are said to have been allotted to members of the
weaker sections as envisaged under Section 23 of the Act. Another round
of litigation was initiated by the appellant. Another appeal was said to have
been filed before the appellate authority in terms of Section 33 of the Act in
the year 1995. The said appeal was entertained. By a judgment and order
dated 30.3.1995, 6224 sq. meters in Survey No. 267 only was declared as
surplus land.
5. Respondent-State alleged that the Tribunal was not informed about
the result of the earlier appeal and the said order dated 30.3.1995 was passed
ex-parte. Even the allottees were not given any notice. A Writ Petition was
preferred by one of the allottees before the High Court wherein a direction
was issued to allot him an alternate land. The State also filed a writ petition
thereagainst which was marked as SCA No. 100 of 1996. Appellant is
said to have filed two civil suits in the years 1999 and 2001 in the Court of
Civil Judge, Senior Division, Vadodara being Civil Suit No. 935 of 1999
and 190 of 2001 seeking injunction against the State from taking possession
of the lands. The application for interim injunction was, however,
dismissed. In the said interim order, allegedly a finding was recorded that
the appellant had suppressed material facts and misled the Court.
6. However, in the year 1999, the Act was repealed. On the basis thereof
purported statement was made by the Assistant Government Pleader in
Special Civil Application No. 100 of 1996 withdrawing the said SCA No.
100 of 1996. The High Court in its Order dated 15.6.1999 recorded;
"Mr. Dave, Ld. Counsel for the petitioner states that
in view of the Urban Land (Ceiling & Regulation)
Repeal Act, 1999, the present petition does not
survive. Consequently the same is disposed off
accordingly. Rule discharged with no order as to
costs. Ad-interim relief vacated."
Thereafter notices were issued to the allottees for their eviction.
Several correspondences passed between the appellant and the Authorities of
the State. Allegedly the Order of the High Court dated 23.3.2000 was
accepted by the State. A stand was taken that the said order of the High
Court dated 15.6.1999 would not be challenged.
7. Appellant sold the land to one Dineshbai Chhotabhai Patel by a
registered deed of sale dated 20.5.2000. The said vendee again sold half of
the said land in favour of one Sanjay Kumar Manilal Patel on 25.1.2001.
Permission was granted for construction of the buildings.
8. The allottees, filed a writ petition before the High Court. The State
therein filed a counter affidavit accepting the order of the Tribunal dated
31.3.1995. However, after a few days, an application for recalling of the
said order dated 15.6.1999 was filed, whereupon a notice was issued.
9. By reason of a judgment dated 11.10.2005, a learned Single Judge of
the High Court allowed the said application assigning cogent reason. A
Letters Patent Appeal preferred thereagainst by the appellant has been
dismissed by a Division Bench of the High Court by reason of the impugned
judgment expressing its agreement with the order passed by the learned
Single Judge.
10. Mr. Aniruddha P. Mayee, the learned counsel appearing on behalf of
the appellant urged that the High Court committed a serious error in passing
the impugned judgments, by reason whereof not only 2205 days delay has
been condoned, but a litigation is sought to be revived which would end in
futility having regard to the conduct of the State and the subsequent events
which took after 15.6.1999.
11. Ms. Madhvi Divan, learned counsel appearing on behalf of the
respondent on the other hand, urged that the appellant had committed a fraud
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on the Court as it had suppressed the appellate order dated 4.1.1988 while
preferring another appeal after 11 years of the passing of the original order
dated 12.7.1984.
At no stage, the learned counsel would submit, the appellant had
brought to the notice of the authorities of the State as also the High Court
that the Order dated 12.7.1984 had attained finality. It was, furthermore,
contended that the stand taken by the Assistant Government Pleader was not
binding upon the State as those cases where possession had also been taken
over from the owner of the land have explicitly been saved under the
provisions of the 1999 Act.
12. Steps indisputably had been taken under the provisions of the Act,
pursuant to the final order passed in the said proceeding as not only some
lands were declared to be surplus, an appeal preferred thereagainst was
dismissed, possession had been taken over and even allotments have been
made in favour of the members of the weaker sections of the Society.
We may notice that even possession of portions of lands were handed
over to 15 persons.
If the State is correct in its submission that in that view of the matter,
the 1999 Act will have no application, indisputably, any wrong concession
made by a counsel would not be binding upon the State.
In State of Haryana and Others Vs. M.P. Mohla [(2007) 1 SCC 457],
it was held;
"25. The law as regards the effect of an admission is
also no longer res integra. Whereas a party may not be
permitted to resile from his admission at a subsequent
stage of the same proceedings, it is also trite that an
admission made contrary to law shall not be binding on
the State."
13. We are not oblivious of the fact that the authorities of the State have
made a complete goof up with the situation. By its action, it allowed
subsequent events to happen, viz. sales of the lands have taken up,
constructions have come up, but the question which arises for our
consideration is as to whether even in such a situation, this Court would
allow a suppression of fact to prevail.
It is now a well settled principle that fraud vitiates all solemn acts. If
an order is obtained by reason of commission of fraud, even the principles of
natural justice are not required to be complied with for setting aside the
same.
In T. Vijendradas and Another Vs. M. Subramanian & Others [2007
(12) SCALE 1], this Court held;
"21. \005\005 When a fraud is practiced on a court, the
same is rendered a nullity. In a case of nullity, even
the principles of natural justice are not required to be
complied with. [Kendriya Vidyalaya Sangathan and
Others v. Ajay Kumar Das and Others (2002) 4 SCC
503 & A. Umarani v. Registrar, Cooperative societies
and Others (2004) 7 SCC 112-para 65]
22. Once it is held that by reason of commission of a
fraud, a decree is rendered to be void rendering all
subsequent proceedings taken pursuant thereto also
nullity, in our opinion, it would be wholly inequitable
to confer a benefit on a party, who is a beneficiary
thereunder\005.."
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14. The object and purport of a statute must be given effect to. If there is
a conflicting interest, the Court may adjust equities but under no
circumstance it should refuse to consider the merit of the matter, when its
attention is drawn that suppression of material facts has taken place or
commission of fraud on Court has been committed.
The courts, for the aforementioned purpose may have to consider the
respective rights of the parties. The State has a constitutional
duty/obligation to comply with the principle of social justice as adumberated
under Section 23 of the Act and take the decision to their logical conclusion.
15. The allottees have acquired a statutory right. Only because the State
was not aware of the factual position and/or the legal implication of the 1999
Act which led to withdrawal of the writ petition from the High Court, the
same by itself may not be sufficient to deprive the allottees from their legal
right to hold the said land.
16. An extra-ordinary situation of this nature would require an extra-
ordinary order.
17. In the matter of passing an order of condonation of delay, we may
notice that the Court of Appeal in Smith Vs. Kvaerner Cementation
Foundations Ltd (Bar Council intervening) [2006 3 All ER 593] condoned
the delay on the ground that the appellant therein had a human right to get
his lis adjudicated before an independent and impartial tribunal and as the
Judge was biased, delay in preferring the appeal was condoned stating;
"41. The first criterion to be considered, (a), is the
interests of the administration of justice. These
would normally militate strongly against an extension
of time as long as that sought in this case. It is an
important principle of the administration of justice
that legal process should be finite. To reopen this
case after a delay of four years plainly runs counter to
that principle. But this is a case where Mr. Smith has
been denied the right to which art 6 of the European
Convention for the Protection of Human Rights and
Fundamental Freedoms 1950 (as set out in Sch 1 to
the Human Rights Act 1998) entitled him \026 to a fair
hearing before an independent and impartial tribunal.
This, in our view, is the paramount consideration so
far as the administration of justice is concerned."
18. For the reasons, aforementioned, we are of the opinion that the merit
of the matter as also the question in regard to adjustment of equities may be
considered by the High Court. We, for the foregoing in exercise of our
jurisdiction in Article 136 of the Constitution of India refuse to interfere with
the impugned judgment.
The appeal is dismissed with costs. Counsel’s fee assessed at
Rs. 10,000/-