Maharashtra Housing And Area ... vs Mahesh Jaggumal Sacchani And Ors.
2007 Latest Caselaw 510 Bom

JUDGMENT

A.B. Chaudhari, J.

1. By the present petition, which is under Articles 226 and 227 of the Constitution of India, the petitioner-Maharashtra Housing and Area Development Authority (for short MHADA) has questioned the legality and validity of the judgment and decree dated 30-10-1999 passed by 2nd Joint Civil Judge, Sr. Dn., Nagpur, in Regular Civil Suit No. 1068 of 1991, by which the said Court directed the petitioner to release 40% of total surplus land, i.e. 14526.32 sq. tntrs. in the light of the Circular dated 23-8-1988 of the State Government.

2. Facts:

One Gomaji Mahadeo Darokar who was the owner of Field Survey No. 75/2K, mouza Durga Dhamna, Nagpur, was found to be a surplus land-holder under the provisions of Urban Land (Ceiling and Regulation) Act, 1976 (for short Ceiling Act) with surplus area of 36,315.80 sq. mts. and as such the said surplus land vested in the State Government by virtue of notification dated 26-10-1989 under Section 10(3) of the Ceiling Act. On 12-10-1990 the said land was allotted to the petitioner-MHADA and accordingly possession was taken on 31-10-1990. Respondents 1 to 3 and original respondent No. 4 Ramji Mahadeo Darokar, now dead, had together filed Regular Civil Suit No. 1068 of 1991 on 22-4-1991 in the Court of Civil Judge, Sr. Dn., Nagpur, for declaration and permanent injunction. Ramji claimed to be the owner of the same land admeasuring 3.235 acres bearing Field Survey No. 75/2K (Old), i.e. Kh. No. 140 (new). Under registered sale-deed dated 11-10-1990 Ramji sold two acres out of the said land to respondents 1 to 3 and by another sale-deed dated 15-10-1990 he sold the remaining 1.235 acres of land to respondent No. 3. Ramji claimed that he received the said piece of land in partition amongst his brothers Gomaji Darokar and Narayan Darokar and that is why he was the owner of the said land admeasuring 3.235 acres. The suit was thereafter amended and a plea was taken that the State Government had issued a Circular dated 23-8-1988 which permitted release of 40% of total surplus land to the owner and the said aspect was considered by this Court in W.P. No. 481 of 1994 decided on 19-2-1997 and hence even under the said Circular the plaintiffs were entitled to return of 40% of the surplus land, i.e. 14526.32 sq. mts. of land.

3. The petitioner-MHADA appeared before the trial Court and filed its written statement raising the following objections:

(i) the suit was undervalued as the relief of declaration of ownership was sought but the valuation was made only at Rs. 300/-.

(ii) the jurisdiction of Civil Court is ousted in view of the bar contained under Section 177 of the Maharashtra Housing Area and Development Act, 1976 (for short the MHADA Act) and Section 33 of the Ceiling Act provides for remedy of appeal.

(iii) the suit land had already vested in the State Government after issuance of the notification under Section 10(3) of the Ceiling Act on 26-10-1989 and, as such, both the sale-deeds dated 11-10-1990 and 15-10-1990 were null and void.

(iv) Gomaji was the recorded owner of the suit land and under order dated 18-8-1987 the said land was declared surplus and as such any transaction thereafter became meaningless in view of Section 10(4) of the Ceiling Act.

(v) Ramji had absolutely no concern with the suit land and he was never recorded in any Government record as the owner of the suit land.

(vi) No statutory notice as contemplated by Section 173 of the Act was even served.

(vii) The owner of the land was Gomaji Darokar as per Government records and Ramji had absolutely no concern with the said land bearing Kh. No. 75/2K (old), 140(new) of mouza Durga Dhamna.

(viii) The land having been vested in the State Government, statutory notice under Section 80 of the Code of Civil Procedure was not served.

In accordance with the aforesaid pleadings, issues were framed by the trial Court. The maintainability of the suit on the aforesaid grounds, as raised in the written statement, and in accordance with the issues framed was, therefore, required to be gone into.

4. An interesting development took place during the pendency of the suit on 30-10-1999 inasmuch as a pursis (Ex. 56) was filed in the suit which reads as under:

The plff. and deft. No. 2 submit that amongst all issues framed by this Hon'ble Court, the issues No. 4-A and 4-B are only relevant for deciding the suit. All other issues have become redundant. Hence evidence of deft. 2 be only recorded.

Hence this joint pursis.

Nagpur:

Dt. : 30-10-1999

Sd/ S.D. Dewani, C. for plff.

Sd/- B.G. Kulkarni, C. for deft. No. 2.

This pursis is admittedly not signed either by the Government Pleader or by defendant No. 1. Defendant No. 1 is not deleted from the suit. The pursis is not signed by any of the parties to the suit. It is stated in the pursis that except issues No. 4-A and 4-B all other issues have become redundant. After filing of the pursis, as aforesaid, on the same day without recording evidence of any of the plaintiffs, straightway evidence of Chandrashekhar Dhande (witness No. 1 for defendant No. 2) was recorded on behalf of petitioner-MHADA by Shri B.G. Kulkarni, Advocate for the petitioner. Perusal of evidence of this witness shows that he admitted that Ramji was the owner of the suit land and in cross-examination he admitted everything against the interest of petitioners/employer and the State Government, and not only that he agreed on behalf of MHADA to release the land in favour of the plaintiffs. Thereafter, on the same day, i.e. 30-10-1999 the learned trial Court passed the judgment and decree in question. It is this judgment and decree which is under challenge in the present writ petition.

5. After issuance of notice in this writ petition, Mr. Ghare and Mr. Kothari, Advocates made appearance on behalf of respondents 1 to 4. During the pendency of writ petition, respondent No. 4 Ramji expired and, therefore, his legal representatives were brought on record.

6. The Government Pleader filed his submissions on behalf of the Officer of the State Government. Thereafter on 29-3-2007 Mr. Ghare filed preliminary objections to the petition on behalf of respondents 1 to 4. On 13-3-2007 this Court had made it clear that the petition would be considered for final disposal at the admission stage and accordingly the parties were put on notice. On 30-3-2007 Mr. Manohar, learned Counsel for the petitioners, pointed out that except filing preliminary objection, no reply has been filed by respondents 1 to 4 on merit, to which Mr. Ghare submitted that the petition itself is not maintainable in view of preliminary objections and hence no reply on merit is necessary. The petition was then adjourned to 6-4-2007 and thereafter to 26-4-2007. The petition was finally heard on 26-4-2007. Respondents 1 to 4 chose not to file reply on merits.

7. Summary of Arguments:

Mr. Sunil Manohar, learned Counsel for the petitioners, made the following submissions:

(i) In the wake of order dated 18-8-1987 passed by the competent authority under Ceiling Act declaring the lands belonging to Gomaji Darokar, i.e. suit lands, as surplus under the provisions of Ceiling Act and vesting thereof under the State Government by virtue of notification under Section 10(3) of Ceiling Act dated 26-10-1989, the sale-deeds dated 11-10-1990 and 15-10-1990 were illegal.

(ii) the suit land having been allotted by the Collector, Nagpur, to the petitioner-MHADA by order dated 12-10-1990 and the petitioner having been placed in possession on 31-10-1990, any claim by the original plaintiffs was untenable.

(iii) The revenue record shows Gomaji Darokar as the owner throughout and nowhere there is whisper of Ramji Darokar as owner of the lands and respondent No. 4 Ramji did not file a single document showing his ownership on the suit land nor any of the plaintiffs tendered oral evidence in the suit.

(iv) The total area of 3.23 acres difference comes to 1,42,360 sq. ft. and the Civil Court has ordered release of 14,526.32 sq. mts. (i.e. 1,45,260 sq.ft.) which clearly shows total non-application of mind on the part of Civil Court.

(v) The Civil Court could not have acted without jurisdiction when its jurisdiction was specifically barred by Section 33 of the Ceiling Act and Section 177 of MHADA Act, 1976 and even if the parties wanted to confer jurisdiction on the Civil Court, the Court ought to have refused to exercise jurisdiction which it did not have.

(vi) In the absence of service of statutory notice under Section 80 of the Civil Procedure Code and under Section 173 of the Act of 1976 the suit was liable to be dismissed.

(vii) None of the plaintiffs entered witness box to prove their case,

(viii) The petitioner-MHADA had never consented to the filing of pursis (Ex. 56) and without its consent the Advocate of the petitioner in collusion with the plaintiffs filed the pursis for giving up the preliminary objections regarding the very jurisdiction of the Court. Neither Shri B.G. Kulkarni, Advocate nor the witness, i.e. the officer of MHADA Shri Chandrashekhar Dhande had any authority to make any statement adverse to the interest of the petitioners and the entire action was vitiated by the fraud committed by Advocate Shri B.G. Kulkarni and the counsel for plaintiffs Shri Shyam Dewani. Fraud is played on the petitioners - MHADA for the benefits of the plaintiffs at the behest of the plaintiffs,

(ix) Fraud and justice never dwell together.

(x) As per the practice in Civil Court, say of all the parties is obtained on such pursis before proceeding further. In the instant case, no order asking say of other side was made by the Civil Court and perhaps copy of the pursis was also not served on the District Government Pleader for defendant No. 1.

(xi) Section 79 of the Code of Civil Procedure provides that the State can be sued only through its Secretary in a Civil Court and when the land had vested in the State Government, in the absence of State being a party to the suit, the suit could not have proceeded. Making Deputy Collector as a party to the suit was of no consequence.

(xii) The preliminary objection about delay and laches raised by the other side does not survive as the petitioners have explained the delay in filing the writ petition in paragraphs 7 to 11 in all necessary details as well as by filing a counter-affidavit dated 11-4-2007, the averments of which have not been denied, (xiii) The objection regarding availability of alternate remedy under Section 96 of the Code of Civil Procedure is without any substance, as much time has lapsed, possession of suit land is with MHADA, the impugned judgment is vitiated by fraud which came to be unearthed for the first time in the year 2004 and the Civil Court has acted without jurisdiction and beyond its bounds in unholy haste by completing the entire exercise only in one day. The bar of jurisdiction of the High Court under Article 226 of the Constitution is self imposed as in appropriate case the High Court is not denuded of its power and jurisdiction to do justice. The learned Counsel prayed for allowing the writ petition. In support of his submissions, Mr. Manohar relied upon the following decisions:

(a) , Hamza Haji v. State of Kerala, (b) , Bhaurao Dagdu Paralkar v. State of Maharashtra and Ors., (c) , Ramchandra Ganpat Shinde v. State of Maharashtra and Ors., (d) , Sanjeev G Devre v. State of Maharashtra, (e) , Surya Dev Rai v. Ramchander Rai and Ors. (f) , Ram and Shyam Com. v. State of Haryana and Ors. (g) , ABL International Ltd. and Anr. v. Export Credit Guarantee Corporation of India Ltd. and Ors.

8. Submissions of respondents 1 to 4:

Per contra, Mr. Ghare, learned Counsel for respondents 1 to 4 vehemently opposed the submissions made by Mr. Manohar and submitted as under:

(i) The delay of seven years in filing the present writ petition against the impugned judgment and decree is not properly explained and though the petition was ready for filing the same was not filed for a period of about one year in this Court and hence the petition should be dismissed without going into any aspect of the matter.

(ii) The remedy of regular appeal under Section 96 of the Code of Civil Procedure though being available, the present writ petition could not have been filed and is liable to be dismissed on the said ground.

(iii) There are allegations of fraud against Shri B.G. Kulkarni Advocate for the petitioner-MHADA in the trial Court and in absence of Shri B.G. Kulkarni being a party to the petition, the said allegations cannot be considered.

(iv) Fraud being a mixed question of facts and law requiring detailed evidence, writ petition cannot be entertained and no finding about commission of fraud can be recorded by this Court. The State Government has not filed any writ petition questioning the validity and legality of the impugned judgment and decree. Mr. Ghare did not make any submissions on merits of the writ petition and as already stated, no reply on merits has been filed by respondents 1 to 4.

9. Submissions of A.G.P.:

Mr. Deopujari, learned A.G.P., for respondent No. 5 submitted that the original owner of the property was Gomaji and as per Government records Ramji had absolutely no concern with the suit property. The Circular dated 23-8-1988 was applicable only to the owners of the properties and reading of the said Circular shows that in certain circumstances only the same was applicable. He submitted that Ramji Darokar was having absolutely no concern with the property and, therefore, the question of applicability of said Circular did not arise. At any rate, he submitted that the power to release such land was with the State Government and the land having been vested in the State Government, the question of releasing the same does not arise without an order to that effect being made by the State Government. Mr. Deopujari, learned A.G.P., fully supported the petition and agreed that the pursis (Ex. 56) was filed without the consent of the counsel for the plaintiffs and defendant No. 2 fraudulently and the evidence that was tendered was also fraudulent. The judgment obtained by fraud cannot stand scrutiny of law and must yield to the rule of law. He prayed for allowing the writ petition.

10. Consideration:

Having heard the counsel for the parties at length and having gone through the entire records, I gave my anxious consideration to all aspects of the matter and therefore I proceed to record my findings.

11. It is undisputed fact that old Kh. No. 75/2-K, i.e. new Kh. No. 140 of mouza Durga Dhamna, Nagpur, was the subject-matter of the proceedings under the Ceiling Act by which the suit land was declared as surplus. It is also not in dispute that on 26-10-1989 a notification under Section 10(3) of the Ceiling Act was issued by which the suit land vested in the State Government. The sale-deeds dated 11-10-1990 and 15-10-1990 in favour of respondents 1 to 3 were executed by original plaintiff No. 4 Ramji in respect of the suit land, who was not even the owner of the said lands. The owner of the said lands was Gomaji Darokar. Ramji, who was plaintiff No. 4 in the suit in question, averred in the plaint that as a result of partition between his brothers Gomaji and Narayan, he became the owner of the suit land. Plaintiff No. 4 Ramji admittedly did not enter the witness box nor filed any evidence of partition or allotment of the suit lands in his favour in the trial Court. In the written statement, in paragraph 2, it is averred by the petitioners that it was Gomaji who was the owner who filed return under Section 6 of the Ceiling Act in respect of the suit lands and that plaintiff No. 4 Ramji had nothing to do with the suit lands. By evidence of Chandrashekhar Dhande (witness No. 1 for defendant No. 2) the fact that the suit land was allotted to petitioners-MHADA who was placed in possession on 31-10-1990 under possession receipt (Ex.60) was fully established. Going by these facts, it appears to me that the trial Court ought to have found out whether Gomaji or plaintiff No. 4 Ramji was the real owner of suit land. Further, whether due to suit lands being declared surplus on 18-8-1987 and having been vested in the State Government on 26-10-1989, the sale-deeds dated 11-10-1990 and 15-10-1990 were illegal or not.

12. Following averments in the petition on merits of the matter have gone unrebutted-

It is pertinent to state at this juncture that to substantiate the averment, no partition deed was ever filed on record by the plaintiff or more particularly the plaintiff No. 4. It is most respectfully submitted that the said land in question could not be partitioned or sold in view of the provisions of Urban Land Ceiling Act, more particularly when the possession was already handed over to the petitioners on 31-10-1990 in view of the order dated 18-8-1987 in U.L.C. Case No. 1518/76.

It is categorically submitted in the written statement by defendant No. 2 that plaintiff No. 4 Shri Ramaji Darokar has no concern or business with the said property and is in no way connected with the said suit property. It was further stated in the written statement that the urban land ceiling proceedings in respect of the suit land was started in the year 1976 and the land was already declared as surplus vacant land by order dated 18-8-1987 and that plaintiff Nos. 1 to 3 have not taken any steps to ascertain the possession of the land and to ascertain the title of plaintiff No. 4 and have got the sale-deeds executed and the sale-deeds are hit by the provisions of Section 10(4) of the Urban Land Ceiling Act and the plaintiffs could not claim any right, muchless the right of ownership in respect of the suit land.

A bare perusal of the said circular will clearly show that the said Government Circular dated 23-8-1988 was applicable only to owner and not to a third party who had no connection with the said land and had allegedly purchased the same from a person who had no authority and title to sale the suit land. A bare perusal of the government circular will show that it was the policy of the State Government that in case the land holder ready to surrender 60% of the said land, the 40% of the land could be retained by him for development in accordance with the circular dated 23-8-1988. It is most respectfully submitted that therefore the circular has apparently no connection with the said suit as Shri Ramaji Mahadeo Darokar was never a landholder or a landowner in Kh. No. 75/2K and the owner in the ULC proceedings and the person who had participated in the ULC proceedings was one Shri Gomaji Mahadeo Darokar. It is also pertinent to point out here that right from the year 1976 till the year 1990, the said Ramaji Mahadeo Darokar has never turned up at the acquisition proceedings nor has raised any objection which clearly shows that he had no connection with the said land. Also it is pertinent to point out here that in the Civil Court proceedings his name is shown as Ramaji Mahadeo Dharuka which might be a typographical error or it might also be a case where the plaintiff No. 4 along with plaintiff Nos. 1 and 2 are trying to take advantage of similar synonymous of Shri Gomaji Mahadeo Darokar and Ramaji Mahadeo Darokar.

It is most respectfully submitted that the said Shri Chandrashekhar Pandharinath Dhande, being the officer of MHADA had no authority in law to submit before the Court in his evidence that the defendant No. 2 was ready to release the land in favour of plaintiffs in accordance with the circular dated 23-8-1988 without the concurrence and approval of the Competent Authority of the petitioner No. 1. It was evident from the circular that the said circular applied only to landowners/landholders and it was apparently a mischievous and fraudulent action on the part of advocate for the plaintiffs as well as advocate for defendant No. 2 Shri B.G. Kulkarni by which they had got the joint pursis signed and filed before the Court and which is also corroborated by the fact that the said witness gives an evidence supporting the plaintiffs when the legal position is apparently to the contrary. It is submitted that on the basis of the said joint pursis and on the basis of the said evidence, the matter was closed for judgment and vide order dated 30-10-1999 which again is a rarity that the learned trial Court passed an order on the same day on which the joint pursis is filed, the evidence is recorded and the judgment is delivered.

It is also pertinent to point out here that on 25-8-2005, a letter was also addressed by petitioner No. 2 to Shri B.G. Kulkarni Advocate in which it is stated that a joint pursis vide Ex. 56 was filed in Regular Civil Suit No. 1968/91 before the Civil Court which was signed by the counsel for the plaintiffs and defendant No. 2. It was further requested to inform as to who signed it on behalf of MHADA and on whose instructions the said pursis was filed in the Court. A copy of the said letter dated 25-8-2005 from petitioner No. 2 to Shri B.G. Kulkarni, advocate is annexed herewith and marked as ANNEXURE "XXVII" to the petition. It is pertinent to point out here that till today there is no reply from the advocate to the said letter and no communication has been addressed by the said Advocate giving any explanation for signing the said pursis on behalf of petitioner No. 2 before the learned trial Court.

It is further most respectfully submitted that the judgment dated 30-10-1999 is clearly passed by the learned trial Court on the basis of a fraudulent pursis and fraudulent evidence which has been rendered by the witness for defendant No. 2. It is submitted that a bare perusal of the pursis dated 30-10-1999 will clearly show that the counsel for the plaintiff Shri Shyam Dewani as well as the counsel for defendant No. 2 Shri B.G. Kulkarni filed a joint pursis without the consent of their clients and putting their own signatures thereon stating therein that in view of the issues, only the evidence of defendant No. 2 be recorded.

It is most respectfully submitted that a bare perusal of the circular dated 23-8-1988 will clearly show that the said circular was not applicable to the case of plaintiff No. 1/respondent Nos. 1 to 4 in Regular Civil Suit No. 1068/91 at all. It is submitted that the said circular dated 23-8-1988 applies only to landowners/landholders who have participated in the proceedings before the ULC authorities. In the present case, it was only Shri Gomaji Mahadeo Darokar who was entitled for possession of the said 40% land if he had so applied. Plaintiff Nos. 1 to 4 are not covered by the circular dated 23-8-1988 and the judgment of the Hon'ble High Court dated 19-2-1997 is not concerned with Khasra No. 75/2 at all.

13. Respondents 1 to 4 have not chosen to rebut the averments in the writ petition despite opportunity being given to them. They stuck to their gun that the petition should be dismissed on preliminary objection to the maintainability of petition and hence it was not necessary for them to counter the averments in the petition, despite the fact that they were put on notice that the petition would be finally disposed of at the admission stage.

14. The pronouncement made by the Apex Court in respect of unrebutted pleadings in the case reported in AIR 1964 SC 962 is reproduced below:

The next question is as regards the inference to be drawn from these facts which in the absence of their denial have to be taken as true. It is here that we have felt the greatest uneasiness, because if the facts which serves as the foundation for the plea of mala fides are made out, the only question would be whether the inference of mala fides on the part of the Chief Minister would be a reasonable one to draw. It is at this point that we are faced with necessity of having to proceed without there being any effective answer to the propriety of drawing the inference which the appellants desire. There has been no denial by the Chief Minister nor an affidavit by any person who claims or can claim to know personally about the truth about the allegations. The Secretary to the Home Department-one Mr. S.A. Iyengar has filed a counter-affidavit in which the allegations we have set out earlier have been formally denied. He says,

I have been expressly instructed and authorised by the Hon'ble the Chief Minister to state that the allegations suggesting personal animus and giving mandate are false and mischievous and have been deliberately made to create an atmosphere of sympathy.

The learned Advocate General did not suggest that the Court could act upon this secondhand denial by the Chief Minister, as the statement by Shri S.A. Iyengar is merely heresay. We are, therefore, constrained to hold that the allegations that the Chief Minister was motivated by bias and personal ill-will against the appellants, stand unrebutted.

15. The Supreme Court has also observed in respect of unrebutted pleadings in the case of Smt. Naseem Bono v. State of U.P. and Ors. in paragraph No. 11 as follows:

Since no dispute was raised on behalf of respondents 1 to 4 in their reply to the averments made by appellant in writ petition that 40% of total number of posts had not been filled by promotion inasmuch as the said averments had not been controverted the High Court should have proceeded on the basis that the said averments had been admitted by the respondents.

16. Reading of the written statement filed by defendant No. 2/petitioners shows that a specific plea that the Civil Court has no jurisdiction to entertain the suit for various reasons was taken and the learned trial Court could not have simply ignored the same. On the contrary, a duty was cast upon the trial Court to first examine whether it had jurisdiction to go ahead with the matter. Section 33 of the Ceiling Act reads thus:

33. Appeals : (1) An appeal against an order or award of the Collector shall lie to the Maharashtra Revenue Tribunal in the following cases:

(1) an order under Sub-sections (2) and (3) of Section 13 [not being an order under which a true and correct return complete in all particulars is required to be furnished];

(2) a declaration [or any part thereof] under Section 21;

[(2a) an order under Section 21-A;]

(3) an award under Section 25;

(4) an order refusing sanction to transfer or divide land under Section 29;

(5) an order of forfeiture under Sub-section (3) of Section 29;

(6) an amendment of declaration or award under Section 37; and

(7) an order of summary eviction under Section 40.

(1A) ...

17. Section 177 of the MHADA Act reads thus:

Save as otherwise expressly provided in this Act, no Civil Court shall have jurisdiction in respect of any matter which the Authority or the Tribunal is empowered by or under this Act, to determine; and no injunction or stay shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred or duty imposed by or under this Act.

These provisions may take away the jurisdiction of Civil Court. It is worthwhile to note that the suit land having been vested in the State Government under Ceiling Act, it was the State Government who was required to be party-defendant in the suit in accordance with the provisions of Section 79 of the Code of Civil Procedure. The suit was obviously bad for joining Deputy Collector as defendant No. 2 which is contrary to the provisions of Section 79 of Code of Civil Procedure. The Civil Court also failed to notice that statutory notices under Section 80 of the Code of Civil Procedure and under Section 173 of MHADA Act were not even served by the plaintiffs in order to maintain the suit. Since the jurisdiction of the Civil Court was said to have been barred, it ought not to have endeavoured to try the suit without first deciding the issues regarding jurisdiction etc. and pass the impugned judgment and decree. I do not think that a Court of law can exercise jurisdiction if the same is specifically taken away by the Acts of Parliament or State Legislature. I do not think that in the wake of such prohibition contained in the Special Acts the Civil Court can adjudicate the suit and pass the judgment and decree merely because the parties to the suit confer jurisdiction on the Civil Court. In my opinion, if such a course is allowed the same would be destructive of rule of law. It was therefore imperative for the Civil Court to decide the issues regarding jurisdiction etc.

18. It is not in dispute that the pursis (Ex. 56) was filed which was signed by the counsel for the plaintiffs as well as by the counsel for the defendant No. 2 only. The pursis states that Issue No. 4-A and 4-B are only relevant while other issues (issue regarding jurisdiction of Civil Court) have become redundant. The respondents herein could not at all throw light as to how all other issues including the issues regarding jurisdiction became redundant. The pursis does not give any reason for saying so nor the impugned judgment of the trial Court shows any reason for the Civil Court to assume that the important issues regarding jurisdiction became redundant. In the absence of any justification, I do not think that the issue regarding jurisdiction of a particular Court can become redundant at least qua the Court exercising such jurisdiction. On the contrary, in my opinion, it is the responsibility of the Court to first examine whether it has jurisdiction or not. If the Court has no jurisdiction then the Court cannot touch the matter at all. In this case, the civil Court has failed in its duty to do so. On the contrary, there appears to be utter haste on the part of the plaintiffs and defendant No. 2, i.e. petitioners and their counsel and witness Chandrashekhar Dhande. The pursis was filed on 30-10-1999 under the signatures of Shri S.D. Dewani, counsel for the plaintiffs and Shri B.G. Kulkarni, counsel for defendant No. 2. The pursis is not signed by the Government Pleader for defendant No. 1 and it does not appear that the copy of the pursis was served on defendant No. 1. That apart, no "say" was at all called by the Court from the Government Pleader. The trial Court simply accepted the pursis and then on the same day of filing of pursis, witness No. 1 Chandrashekhar Dhande was examined and cross-examined wherein the witness stated that he was ready to release the suit land in favour of the plaintiffs. This statement is obviously without any authority of MHADA and State Government since the averments in the petition to that effect have not been rebutted. The witness is nobody to release the suit land in favour of the plaintiffs and I therefore find that such a statement made by the witness was a step towards collusion between him and the plaintiffs. The trial Court should have rejected the pursis, but it acted on it and on the same day, the trial Court delivered the judgment and also passed the decree on the basis of the admissions of the witness. Perusal of the reasons in the impugned judgment clearly show that the trial Court did not at all bother to consider the nature and status of the suit land and the impact of the provisions of the Ceiling Act as well as MHADA Act. The Civil Court also did not ascertain as to who was the real owner of the land, who would be entitled to the benefit of Circular dated 23-8-1988 and whether the plaintiff No. 4 Ramji had any saleable interest and title in the suit land. The Civil Court also did not consider that the suit land was already declared surplus and had vested in the State Government under the Ceiling Act. From perusal of the unrebutted averments in the petition, which I have quoted hereinbefore, the manner in which pursis was filed jointly by counsel for plaintiffs and defendant No. 2, the manner in which the trial Court acted on the pursis, the manner in which the witness Chandrashekhar Dhande deposed, and the manner in which trial Court simply ignored to find out whether it has jurisdiction or not, or whether Ramji, plaintiff No. 4, was really owner or not, all collectively lead me to conclude that there was a clear cut collusion and fraud played on the Court to obtain the impugned judgment and decree.

19. The Apex Court in various decisions has in details explained the concept of fraud and collusion. In the case of Hamza Haji v. State of Kerala and Anr. , the Supreme Court has observed in paragraphs 10, 11, 14, 15, 18, 20, 27 and 28 as under:

It is true, as observed by De Grey, C.J., in R. v. Duchess of Kingston (2 Smith LC 687) that:

"Fraud" is an extrinsic, collateral act, which vitiates the most solemn proceedings of Courts of justice. Lord Coke says it avoids all judicial acts, ecclesiastical and temporal.

In Keer on Fraud and Mistake, it is stated that:

In applying this rule, it matters not whether the judgment impugned has been pronounced by an inferior or by the highest Court of judicature in the realm, but in all cases alike it is competent for every Court, whether superior or inferior, to treat as a nullity any judgment which can be clearly shown to have been obtained by manifest fraud.

Where fraud is involved, it has been held, in some cases, that a remedy at law by appeal, error, or certiorari does not preclude relief in equity from the judgment. Nor, it has been said, is there any reason why a judgment obtained by fraud cannot be the subject of a direct attack by an action in equity even though the judgment has been satisfied.

The law in India is not different. Section 44 of the Evidence Act enables a party otherwise bound by a previous adjudication to show that it was not final or binding because it is vitiated by fraud. The provision therefore gives jurisdiction and authority to a Court to consider and decide the question whether a prior adjudication is vitiated by fraud.

The position was reiterated by the same High Court in Esmile Uddin Biswas v. Shajoran Nessa Bewa . It was held : (AIR p. 650)

(1) It must be shown that the fraud was practised in relation to the proceedings in Court and the decree must be shown to have been procured by practising fraud of some sort, upon the Court:

The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. We are constrained to say that more often than not, process of the Court is being abused. Property grabbers, tax-evaders, bank loan-dodgers and other unscrupulous persons from all walks of life find the Court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation.

The Full Bench of the Bombay High Court in Guddappa Chikkappa Kurba v. Balaji Ramji Dange AIR 1941 Bom. 274 observed that : (AIR p.275)

No Court will allow itself to be used as an instrument of fraud, and no Court, by the application of rules of evidence or procedure, can allow its eyes to be closed to the fact that it is being used as an instrument of fraud.

In Hip Foong Hong v. H. Neotia and Co. 1918 AC 888 the Privy Council held that if a judgment is affected by fraudulent conduct it must be set aside. In R. v. Recorder of Leicester 1947 KB 726 it was held that a certiorari would lie to quash a judgment on the ground that it has been obtained by fraud.

20. In the case of Bhaurao Dagdu Paralkar v. State of Maharashtra and Ors. the Supreme Court in paragraph 11 held as under:

"Fraud" as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letters or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letters. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent representation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury ensues therefrom although the motive from which the representation proceeded may not have been bad. An act of fraud on Court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. See Ram Chandra Singh v. Savitri Devi .

21. In the case of Ramchandra Ganpat Shinde and Anr. v. State of Maharashtra and Ors. , the Apex Court said about collusion in para 9 as under:

In Nagubai Animal v. B. Shamma Rao this Court held that collusion in judicial proceedings is a secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial Tribunal for some sinister purpose. In such a proceedings, the claim put forward is fictitious, the contest over it is unreal, and the decree passed therein is a mere mask having the similitude of a judicial determination and worn by the parties with the object of confounding third parties. This was reiterated in Rup Chanel Gupta v. Raghuvanshi Pvt. Ltd. , in which this Court held that the collusion is an improper act done by an improper refraining from doing an act, for a dishonest purpose. In these two cases this Court set aside the collusive decree obtained by the parties. Collusion, thus, is the foundation to put forward a format of judicial process and a pretext of contest which in effect unreal and farce and the decree or order obtained on its basis is a mere mask having similitude of judicial determination with the object of confounding third parties. The offending order is vitiated by collusion and formed foundation for election to the committee of the society.

22. In the case of Sanjeev G. Devre and Ors. v. State of Maharashtra and Ors. , the Division Bench of this Court in paragraphs 12 and 14 held as under:

Fraud and justice cannot co-exist. They do not dwell together. Fraus et jus nunguam cohabitant is a pristine maxi which has never lost its temper all over the centuries.

The superior Courts have a right and obligation to set aside the orders obtained by fraud and not allow perpetuation of the benefits obtained by fraud.

23. In the light of the concept of fraud and collusion as highlighted by the Hon'ble Supreme Court, I am of the firm opinion that the present case falls within the vice of fraud and collusion committed at the instance of the plaintiffs for getting unfair advantage and gain impermissible in law and in violation of rule of law. For this reason, therefore, the impugned judgment and decree cannot be allowed to stand.

24. The counsel for respondent Nos. 1 to 4 seriously opposed the petition on the ground that the same was hit by delay and laches. Having carefully considered his submissions and having gone through the specific averments in details supported by the official correspondence of the petitioners-authorities in paragraphs 7 to 11 of the writ petition and the counter affidavit filed on 12-4-2007 in this Court, I am satisfied that the delay has been properly explained by the petitioners. At any rate, the petitioners being statutory authorities, which have to act through its lawyers, officers and servants and has to rely upon its lawyers, officers and servants, cannot be asked to explain day to day delay. However, in the averments in the petition and counter affidavit, as aforesaid, the delay has been explained supported by several documents which to my mind are sufficient to reject the argument that the petition should be dismissed on the ground of delay and laches.

25. The plea raised by the respondents about the availability of alternate remedy and exercise of jurisdiction by this Court under Articles 226 and 227 of the Constitution of India are being answered by me together. In the present case, as I have already found that the impugned judgment and decree is clearly vitiated due to fraud and collusion and in the light of pronouncement of law stated by me hereinbefore, there is a right and obligation in the superior Court to set aside the orders obtained by fraud and not to allow perpetuation of benefits obtained by fraud. That apart, by now the Hon'ble Supreme Court has set at rest the legal position regarding jurisdiction under Article 226. In the case of Ram and Shyam Co. v. State of Haryana and Ors. , the Apex Court in paragraph 9 observed as under:

Ordinarily it is true that the Court has imposed a restraint in its own wisdom on its exercise of jurisdiction under Article 226 where the party invoking the jurisdiction has an effective, adequate alternative remedy. More often, it has been expressly stated that the rule which requires the exhaustion of alternative remedies is a rule of convenience and discretion rather than rule of law. At any rate it does not oust the jurisdiction of the Court. In fact in the very decision relied upon by the High Court in The State of Uttar Pradesh v. Mohammad Nooh 1958 SCR 595 : AIR 1958 SC 86 it is observed 'that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy.' It should be made specifically clear that where the order complained against is alleged to be illegal or invalid as being contrary to law, a petition at the instance of person adversely affected by it, would lie to the High Court under Article 226 and such a petition cannot be rejected on the ground that an appeal lies to the higher officer or the State Government. An appeal in all cases cannot be said to provide in all situations an alternative effective remedy keeping aside the nice distinction between jurisdiction and merits.

26. In ABL International Ltd. and Anr. v. Export Credit Guarantee Corporation of India Ltd. and Ors. , the Apex Court in paragraphs 17 and 19 observed as under:

The above judgment of Gunwant Kaur finds support from another judgment of this Court in the case of Century Spg. and Mfg. Co. Ltd. v. Ulhasnagar Municipal Council wherein this Court held : (SCC p. 587 para 13)

Merely because a question of fact is raised, the High Court will not be justified in requiring the party to seek relief by the somewhat lengthy, dilatory and expensive process by a civil suit against a public body. The questions of fact raised by the petition in this case are elementary.

Therefore, it is clear from the above enunciation of law that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the Court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. In the above case of Gunwant Kaur this Court even to the extent of holding that in a writ petition, if the facts require, even oral evidence can be taken. This clearly shows that in an appropriate case, the writ Court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact.

27. The above observations in paragraphs 17 and 19 in the light of the fact that material averments in the writ petition and the admitted facts on record compel me to hold that in fact there was no disputed question of facts in the present writ petition. Mr. Ghare, learned Counsel, for respondents 1 to 4 pressed into service the decision of Supreme Court in the case of A.P. Foods v. S. Samuel and Ors. . The said decision is clearly distinguishable in the light of the facts available in the present petition.

28. Insofar as exercise of jurisdiction under Article 227 qua the impugned judgment and decree, the following conclusion drawn by the Apex Court in the case of Surya Dev Rai v. Ram Chander Rai and Ors. in paragraph No. 38 clearly justify the exercise of jurisdiction.

(1) ...

(2) ...

(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate Court is found to have acted (i) without jurisdictionby assuming jurisdiction where there exists none, or (ii) in excess of its jurisdictionby overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.

While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate Courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate Court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate Court as the Court should have made in the facts and circumstances of the case.

In my opinion, exercise of jurisdiction by me is fully justified in the light of the above pronouncements of law made by the Apex Court. Consequently, the impugned judgment and decree is liable to be quashed and set aside. Now, what is the relief which should be granted. In my opinion, since the trial Court has utterly failed to examine the various issues and the material facts and legal position, it would sub-serve the ends of justice if the trial Court is directed to decide the suit afresh. The trial Court shall ignore the pursis (Ex. 56) and proceed to determine the suit. The observations made in this judgment on the issues in the suit shall not influence the trial Court in deciding the suit on all issues.

29. For all the reasons, therefore, the writ petition is partly allowed. The impugned judgment and decree dated 30-10-1999 passed in Regular Civil Suit No. 1068 of 1991 is quashed and set aside. Rule is made absolute in terms of prayer Clause (A) and (B) of the writ petition with costs quantified at Rs. 10,000/- payable by respondents No. 1 to 3 to the petitioners within four weeks from today.