Dattatray S/O Kisan Ingole vs Mohd. Javed Haji Umardaraz Malavi ...
2018 Latest Caselaw 249 Bom

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                                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                 NAGPUR BENCH : NAGPUR



                                                       WRIT PETITION NO.1836/2015

Dattatraya S/o Kisan Ingole, 
aged about 53 Yrs., Occu. Agriculturist, 
R/o Malegaon (Ward No.1), 
Tq. Malegaon, Distt. Washim.                                                                                                                                  ..Petitioner.

                          ..Vs..

1.          Mohd. Javed Haji Umardaraz Malavi,
            aged 35 Yrs., Occu. Money Lender and 
            student of Law, R/o Malegaon, Tq. Malegaon, 
            Dist. Washim. 

2.          Rambhau Mahadu Ingole,
            aged 27 Yrs., Occu. Labourer, 
            R/o Malegaon, Tq. Malegaon, 
            Distt. Washim. 

3.          Ku. Sharda @ Bali D/o Mahadu Ingole, 
            after attaining majority and marriage known 
            as Sau. Sharda W/o Shamrao Tikhe, 
            aged about 24 Yrs., R/o Chivara, 
            Tq. Malegaon, Distt. Washim. 

4.          Maharashtra Revenue Tribunal,
            Old Secretariat, Nagpur. 

5.          State of Maharashtra,
            through Secretary, Revenue & Forest 
            Department, Mantralaya, Mumbai -32.                                                                                                    ..Respondents.
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           Shri A.M. Gorde, Senior Advocate with Shri M.D. Zoting, Advocate for the petitioner. 
           Shri Firdos Mirza, Advocate for respondent No.1. 
           Shri B.N. Mohta,  Advocate for respondent Nos.2 and 3. 
           Shri A.M. Balpande, A.G.P. for respondent Nos.4 and 5.
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                                                                 CORAM :  Z.A. HAQ, J.

                                                                 DATE  :     10.1.2018.




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ORAL JUDGMENT

1. Heard Shri A.M. Gorde, Senior Advocate with Shri M.D. Zoting,

Advocate for the petitioner, Shri Firdos Mirza, Advocate for respondent No.1

and Shri A.M. Balpande, A.G.P. for respondent Nos.4 and 5.

2. Rule. Rule made returnable forthwith.

3. The petitioner claims to be tenant of Mahadu Ingole (predecessor of

respondent Nos.2 and 3). The petitioner had filed an application under

Section 50 read with Section 46 of the Maharashtra Tenancy and Agricultural

Lands (Vidarbha Region) Act, 1958 (for short "the Act of 1958") contending

that he was a tenant of the agricultural land in question and was entitled for

conferral of statutory ownership. This application was filed sometime in 2004 -

2005. By order dated 20th October, 2005 the Tahsildar allowed the

application and fixed the purchase price, which amount was paid by the

petitioner and sale certificate was issued by the Tahsildar.

In 2007, the respondent No.1 made a complaint to the Collector,

Washim that a fraud was played by the respondent Nos.2 and 3 (legal

representatives of deceased landowner Mahadu) in collusion with the present

petitioners and the order regarding conferral of statutory ownership was

obtained. The learned Collector issued communication dated 20 th April, 2007

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directing the Sub-Divisional Officer to examine the matter, exercising powers

under Section 110 of the Act of 1958. The Sub-Divisional Officer accordingly

examined the matter and by the order dated 30th May, 2008 recorded that the

limitation for exercising jurisdiction under Section 110 of the Act of 1958 was

one year and as the order of conferral of statutory ownership was passed by the

Tahsildar much before one year, it was not possible to exercise jurisdiction

under Section 110 of the Act of 1958. Being aggrieved by this order passed by

the Sub-Divisional Officer, the respondent no.1 had filed revision application

under Section 111 of the Act of 1958 which is allowed by the impugned order.

This order passed by the Tribunal is challenged by the petitioner in this

petition.

4. The learned Senior Advocate appearing for the petitioner has

submitted that as per Section 110 of the Act of 1958, the revisional authority

can call for record of any enquiry or proceedings for the purpose of satisfying

itself as to the legality or propriety of any order passed by the subordinate

authorities, and the proviso below Sub-Section (1) of Section 110 of the Act of

1958 provides for limitation of one year from the date of order for exercising

the revisional jurisdiction. It is argued that in the present case the Tribunal

has misread the proviso below Sub-Section (1) of Section 110 of the Act of

1958 and has wrongly held that the limitation would start from the date of

knowledge of the order and not from the date of the order passed by the

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subordinate authority. It is argued that the Tribunal is swayed by the case

tried to be made out by the respondent No.1 that a fraud is played by the

respondent nos.2 and 3 in collusion with the petitioner and fraud vitiates

everything, overlooking that the Tribunal is constituted under the Act of 1958

and can exercise powers and jurisdiction as conferred under Section 111 of the

Act of 1958, and which lays down that the Tribunal can examine whether the

order passed by the Collector is contrary to law, whether the Collector has

failed to determine some material issue of law or whether there had been a

substantial defect in following the procedure provided by the Act of 1958, and

which has resulted in miscarriage of justice. It is argued that in the present

case the Tribunal could not have set aside the order passed by the Sub-

Divisional Officer as the order passed by the Sub-Divisional Officer did not

suffer from any of the irregularities or illegalities as spelt out in Clauses (a), (b)

and (c) of Sub-Section (1) of Section 111 of the Act of 1958. It is submitted

that the Tribunal has overstepped its jurisdiction by allowing the revision filed

by the respondent No.1 under Section 111 of the Act of 1958. It is prayed that

the order passed by the Tribunal be set aside and the order passed by the Sub-

Divisional Officer on 30th May, 2008 be restored.

5. Shri F.T. Mirza, Advocate for the respondent No.1 has supported the

order passed by the Tribunal urging that it is a case of fraud by the respondent

Nos.2 and 3 in collusion with the petitioner on Tahsildar - a statutory authority,

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which cannot be overlooked. The learned Advocate has pointed out that by

agreement dated 8th January, 1999 Mahadu (predecessor of respondent Nos.2

and 3) had agreed to sell the agricultural land in question to the respondent

No.1 for Rs.1,92,000/-, that Mahadu had failed to execute the sale-deed and

therefore, the respondent No.1 had filed Special Civil Suit No.4/2002 praying

for decree for specific performance of agreement, that this civil suit was

decreed by the judgment dated 9th September, 2002, the judgment and decree

passed by the trial Court was challenged by Mahadu before District Court in

Regular Civil Appeal No.246/2002 which was dismissed on 30th April, 2004

against which Second Appeal No.478/2004 is filed by Mahadu before this

Court and the second appeal is pending. It is undisputed that in the civil suit,

the petitioner appeared as witness for Mahadu. Thus, it is clear that the

petitioner was aware about the pendency of the civil suit and perhaps he was

aware about all the facts before entering into alleged agreement of lease with

Mahadu. The learned Advocate for the respondent No.1 has pointed out the

order passed by the learned Additional District Judge in Regular Civil Appeal

No.246/2002 on 24th July, 2003 restraining Mahadu from alienating the land

in question and from creating any third party interest till disposal of the appeal.

It is pointed out that in Second Appeal No.478/2004 filed by Mahadu before

this Court, Civil Application No.3925/2006 was filed on which an order is

passed on 24th July, 2006 restraining Mahadu from creating any third party

interest in the agricultural land in question. It is submitted that the facts on

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record show that though the petitioner was aware about the agreement dated

8th January, 1999 between Mahadu and the respondent No.1, about the filing

of civil suit, about the fact that the civil suit filed by the respondent No.1 was

decreed, about the restraint order passed by the District Court and by this

Court in second appeal, without pointing out these facts, the order dated 20 th

October, 2005 is obtained in collusion from Tahsildar. It is further pointed out

that the factum of passing of order dated 20th October, 2005 and the issuance

of sale certificate in favour of the petitioner is suppressed from the District

Court and even this Court and though District Court and then this Court

restrained Mahadu from creating any third party interest in the agricultural

land in question, neither Mahadu, nor the respondent Nos.2 and 3 nor the

petitioner pointed out that because of the order dated 20 th October, 2005

Mahadu and then his legal representatives i.e. respondent Nos.2 and 3 ceased

to have any interest in the agricultural land in question.

The above facts are glaring enough and this Court cannot overlook

the conduct of Mahadu, the respondent Nos.2 and 3, and the petitioner.

6. The submission made by the learned Senior Advocate that the order

passed by the Sub-Divisional Officer refusing to re-open the matter, exercising

jurisdiction under Section 110 of the Act of 1958 has to be accepted as the

proviso below Sub-Section (1) of Section 110 of the Act of 1958 provides for

limitation of one year from the date of order, for exercise of the jurisdiction.

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The Tribunal has committed an error by recording that limitation would start

from the date of knowledge of the order. As the order passed by the

Sub-Divisional Officer on 30th May, 2008 refusing to re-open the matter, cannot

be said to be erroneous or illegal, the same could not have been interfered with

by the Tribunal while exercising revisional jurisdiction under Section 111 of the

Act of 1958. The revisional jurisdiction conferred by Section 111 of the Act of

1958 is limited and can be exercised only if any of the irregularity or illegality

as spelt out by Clauses (a), (b) and (c) of Sub-Section (1) of Section 111 of the

Act of 1958 exists.

7. Does it mean that the order dated 20 th October, 2005 which is a

result of collusion between petitioner and respondent Nos.2 and 3, having been

obtained by them suppressing relevant facts, including passing of judgment and

decree by competent civil Court, stands undisturbed. In my view, this Court

would be failing in its duty if such an order is permitted to stand. The learned

Advocate for the respondent No.1 has rightly relied on the judgment given by

the Hon'ble Supreme Court in the case of Hamza Haji V/s. State of Kerala and

another reported in 2006 (7) SCC at page 416 of which paragraph Nos.26 and

27 are relevant and reproduced:

"26. The High Court, as a court of record, has exercised its jurisdiction to set at naught the order of the Forest Tribunal thus procured by the appellant by finding that the same is vitiated by fraud. There cannot be any doubt that the Court in exercise of its jurisdiction under Article 215 of the Constitution of India has the power to undo a decision that has been obtained by playing a fraud

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on the Court. The appellant has invoked our jurisdiction under Article 136 of the Constitution of India. When we find in agreement with the High Court that the order secured by him is vitiated by fraud, it is obvious that this Court should decline to come to his aid by refusing the exercise of its discretionary jurisdiction under Article 136 of the Constitution of India. We do not think that it is necessary to refer to any authority in support of this position except to notice the decision in Ashok Nagar Welfare Association and another v.s. R.K.Sharma and others.

27. The order of the Forest Tribunal in the case on hand had merged in the decision in MFA No.328 of 1981 rendered by the High Court. The governing decision, therefore, was the decision of the High Court. When seeking to question the decision as being vitiated by fraud, the proper course to adopt was to move the court that had rendered the decision, by an application. In a case where an appeal is possible, an appeal could be filed. The House of Lords indicated in Kinch Vs. Walcott (supra) that it will be in the power of the party to the decision complaining of fraud to apply directly to the court which pronounced the judgment to vacate it. The Full Bench of the Bombay High Court in Guddappa Chikkappa Kurbar vs. Balaji Ramji Dange observed that :

"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 view of the fact that the order dated 20th October, 2005 passed by

the Tahsildar is obtained by the petitioner and respondent nos.2 and 3 in

collusion, suppressing relevant and material facts and documents, including the

fact of passing of judgment and decree by competent Civil Court, it has to be

set aside.

8. Hence, the following order:

(i)          The order passed by the Maharashtra Revenue Tribunal in Tenancy



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Revision No.TEN/B-75/2010 on 25th November, 2010 is set aside.

(ii) The order passed by the Tahsildar in Revenue Case

No.T.N.C.46/Malegaon/1/2004 - 2005 on 20th October, 2005 is set aside. The

sale-certificate issued as per this order is quashed.

(iii) The matter is remitted to the Tahsildar, Malegaon for deciding the

application filed by the petitioner under Section 50 read with Section 46 of the

Act of 1958 afresh.

(iv) The petitioners and the respondent Nos.2 and 3 shall appear before

the Tahsildar, Malegaon on 16th March, 2018 and abide by further orders /

instructions in the matter.

(v) The Tahsildar shall permit the respondent No.1 to appear and

participate in the proceedings as non-applicant before him.

(vi) The Tahsildar shall dispose the proceedings after permitting the

parties to place on record additional affidavits and documents.

(vii) As the order dated 20th October, 2005 is set aside and the sale

certificate issued pursuant to this order is quashed, the orders passed by the

Sub-Divisional Officer and Maharashtra Revenue Tribunal do not survive.

The writ petition is disposed in the above terms.

(viii) As recorded above, earlier Mahadu and then after his death, his

legal representatives - respondent Nos.2 and 3, and the present petitioner have

colluded to obtain the order dated 20th October, 2005 suppressing the relevant

and material facts. Not only this, though by the order dated 20 th October,

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2005 statutory ownership is conferred on the petitioner and sale certificate is

issued, it was not pointed out to this Court when order was passed by this

Court in Second Appeal No.478/2004 on 24th July, 2006 restraining the

respondent Nos.2 and 3 from creating third party interest in the agricultural

land in question. Because of the conduct of Mahadu and then his legal

representatives and the petitioner, the statutory Authorities i.e. Collector and

the Sub-Divisional Officer, then Maharashtra Revenue Tribunal and then this

Court is unnecessarily required to deal with the matter which otherwise should

not have been the case. Considering the facts of the case, the petitioner is

directed to pay costs of Rs.50,000/- (Rs. Fifty Thousand) to the respondent

No.1 and the respondent Nos.2 and 3 are directed to pay costs of

Rs.1,00,000/- (Rs. One Lakh) to the State of Maharashtra.

The amount of costs shall be paid and the receipts shall be produced

on record of Tahsildar, Malegaon and photocopies of the receipts alongwith

affidavit shall be placed on record of this petition, till 5th April, 2018.

JUDGE

Tambaskar.