Chattisgarh High Court
M/S Krishna Builders And ... vs Shiv Narayan Jaisawal (Died) ... on 8 October, 2021
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
W.P.(227) No. 632 of 2015
Order Reserved on 6.9.2021
Order Delivered on 08.10.2021
M/s Krishna Builders And Developers Through Its Partner Shri Pawan
Agrawal, Son Of Shri Sedhuram Agrawal Aged About 47 Years Resident Of
Vidyanagar, P.S. Tarbahar District And Tehsil Bilaspur Chhattisgarh.
---- Petitioner
Versus
Shiv Narayan Jaisawal (Died) Through Legal Heirs As Per The Hon'ble
Court Order Dated 11-08-2021.
1. State Of Chhattisgarh Through The Collector Raigarh, Chhattisgarh.
2. Shri Manoranjan Jaisawal S/o Late Shiv Narayan Jaisawal Aged About 68
Years Resident Of 1, H.B. Road Distillery Compound Ranchi, Police Station
Lalpur Ranchi, District Ranchi Jharkhand.
---- Respondents
For the Petitioner : Shri Ankit Singhal, Advocate.
For Respondent No.1 : Shri Vineet Kumar Pandey,
Advocate.
For Respondent No.2/ State : Shri Shakti Singh Thakur, P.L.
Hon'ble Shri Justice Rajendra Chandra Singh Samant
CAV ORDER
Heard.
1. This petition has been brought being aggrieved by the order dated
3.7.2015, passed in Revenue Revision Case No. RN/R/13/B-121/454/2012
by the Chhattisgarh Board of Revenue allowing the application of respondent
No.2 by condoning the delay in filing the revision petition and dismissing the
order of the Collector, Raigarh dated 2.7.2012.
2. It is submitted by learned counsel for the petitioner that the agreement
to sale was executed between late Shiv Narayan Jaisawal and others with
Gagan Rathi and Others for the sale of property belonging to Shiv Narayan
Jaisawal and others on consideration. There was a clause in the agreement
that the purchaser may at their own cost get measured the property,
demarcate and also divide the property in suitable plots and thereafter,
develop the land accordingly. On the basis of this sale agreement dated
23.7.2003, the petitioner obtained the clearance from Town and Country
Planning Department, Raigarh on 16.4.2004. On the basis of that
agreement for sale, the sale deed was executed on 21.4.2004 in favour of
Gagan Rathi and Others. The petitioner was one of the purchaser party. On
the basis of this sale deed, the revenue records were duly mutated. The
property purchased was diverted by the order dated 7.6.2004 passed by the
Sub-Divisional Officer, Raigarh. Subsequent to this diversion, Shivnarayan
Jaisawal respondent No.1 and Others, joint holders of the property executed
sale deeds in favour of the purchaser for which the sale consideration was
received. The name of the purchasers have also been mutated. Deceased
- Shiv Narayan Jaisawal had also participated in these transactions and he
was well aware of the Court proceedings regarding which, he gave a
consent letter (Annexure-P/7) dated 30.11.2004.
3. It is submitted that deceased respondent No.1, Shiv Narayan Jaisawal
filed a review application after passing of about 6 years before the Sub-
Divisional Officer, which was rejected by the order dated 24.11.2011
(Annexure-P/8) on the ground that review application is barred by limitation.
Respondent No.1 then preferred a revision before the Collector, Raigarh
which was also dismissed by the order dated 2.7.2012 (Annexure-P/9). It is
submitted that the impugned order of Board of Revenue by which the delay
in filing the revision was condoned and the revision was allowed by
dismissing the order of the Collector which is totally erroneous and illegal.
Reliance has been placed on the judgment of Supreme Court in the
case of Jumni and Ors. vs. State of Haryana reported in (2014) 11 SCC
355, in which it was held that the Courts should not adopt an injustice-
oriented approach in rejecting the application for condonation of delay.
However, the Court while allowing such application has to draw a distinction
between delay and inordinate delay for want of bona fides of an inaction or
negligence that would deprive a party of the protection of Section 5 of the
Limitation Act, 1963. Reliance has also been placed on the judgments of
Supreme Court in the cases of Basawaraj and Another vs. Special Land
Acquisition Officer, reported in (2013) 14 SCC 81, Joint Collector Ranga
Reddy District and Another vs. D. Narsing Rao and Others, reported in
(2015) 3 SCC 695 and Ibrahimpatnam Taluk Vyavasaya Coolie Sangham
vs. K. Suresh Reddy and Others, reported in (2003) 7 SCC 667, it has
been similarly held in these cases that in the absence of necessary and
sufficient particulars pleaded as regards fraud and the date or period of
discovery of fraud and more so when the contention that the suo motu power
could be exercised within a reasonable period from the date of discovery of
fraud was not urged, therefore, the inordinate delay is not condonable.
Reliance has also been placed on the judgment of Supreme Court in
the case of Bishundeo Narain and Another vs. Seogeni Rai and
Jagernath, reported in AIR 1951 SC 280, it is submitted that the delay in the
present case was not fit to be condoned, therefore, the impugned order is
unsustainable. Hence, the petition be allowed and the relief be granted to
the petitioner.
3. Learned counsel for respondent No.1 opposes the submissions and
submits that the present writ petition is not maintainable under Article 227 of
the Constitution of India as the order passed has not been passed in
exercise of any judicial powers. Relying on the judgment of Supreme Court
in the case of Dr. Ram Sharan Lal Tripathi vs. State of Chhattisgarh,
reported in 2015 SCC Online Chhattisgarh 1521. It is submitted that
according to agreement for sale dated 23.7.2003, total 8.24 acres of land
was to be sold as per agreement. The sale deed that was executed on
21.4.2004 was only for the part of the land, therefore, the title had not
passed over the remaining lands belonging to respondent No.1. The
petitioner by keeping respondent No.1 in dark got the entire lands diverted
for its own benefit. The diversion order has been obtained on the basis of
this agreement for sale and the application for diversion was submitted by
the petitioner with forged signature of respondent No.1, therefore, the
diversion order was obtained fraudulently by the petitioner. Respondent
No.1 after collecting the information and material preferred an application to
Sub-Divisional Officer for review of the diversion order on the ground that the
earlier order was obtained fraudulently but the same was dismissed
erroneously on the ground of delay only. The revision before the Collector
was also dismissed without considering on the merits. The Chhattisgarh
Board of Revenue has allowed the application for condonation of delay. The
issue based on the fraudulent diversion is still pending which has to be
decided by the Collector.
Relying on the judgment of the Supreme Court in the case of Satluj
Jal Vidyut Nigam Ltd. vs. Raj Kumar Rajinder Singh, reported in (2019)
14 SCC 449, it is submitted that the orders obtained unlawfully by the
declarant, would be a nullity in the eyes of law. It is submitted that in the
case of Collector, Land Acquisition, Anantnag and Another vs. Mst.
Katiji and Others, reported in (1987) 2 SCC 107, it was held that hyper
technical view should not be taken in the matter of condoning the delay
emphasizing on the submission that the proceeding initiated against the
petitioner is based on fraud. It is submitted that in the case of A.V. Papayya
Sastry and Others vs. Govt. of A.P. and Others, reported in (2007) 4 SCC
221, the Hon'ble Supreme Court has held that the judgment, decree or order
obtained by playing fraud on the Court, Tribunal or Authority has to be
treated as non est and nullity 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, therefore, the
delay in this case was fit to be condoned.
Reliance has also been placed in the case of Madhukar Sadbha
Shivarkar (dead) by legal representatives vs. State of Maharashtra and
Others, reported in (2015) 6 SCC 557, in which the Supreme Court has
reiterated the same view as held in A.V. Papayya Sastry and Others vs.
Govt. Of A.P. and Others (supra).
4. Learned State counsel/ respondent No.2 has made formal objection.
5. Heard learned counsel for the parties and perused the documents
present on record.
6. The objection on maintainability of the petition has to be decided first.
The respondent has relied upon the judgment of this Court in the case of Dr.
Ram Sharan Lal Tripathi vs. State of Chhattisgarh (supra). In the case of
Sunil Tawari vs. Janak Ram Kurre and Anr. in W.P.(227) No.914 of 2015 and
batch of other W.P.(227) cases decided on 16.7.2021 the maintainability of
the petition under Article 227 of the Constitution of India against the order
passed by Revenue Board has been upheld by clearly distinguishing the
view taken by the Co-ordinate Bench in the case of Dr. Ram Sharan Lal
Tripathi vs. State of Chhattisgarh (supra).
Section 51 of the Chhattisgarh Land Revenue Code, 1959 provides for
review of orders and such power is exercised by a Revenue Officer acting as
a Court in accordance with the provision under Code of Civil Procedure,
1908, therefore, any order passed in review application under this provision
is to be regarded as an order passed by a Court and is subject to
supervision under Article 227 of the Constitution of India, therefore, the
objection raised by respondent No.1 & 2 is dismissed.
7. Considered on the submissions. Perused the entire documents
present in the petition filed by the petitioner as well as by the respondents.
On perusal of Annexure-R/1, the order-sheets of diversion proceedings
before Sub-Divisional Officer shown on 24.11.2004, the application for
diversion was filed by the petitioner. In the order-sheet dated 7.6.2004, there
is a mention that diversion is prayed for the land belonging to the petitioner
and also the land belonging to Shiv Narayan Jaisawal (deceased). It is
claimed by respondent No.2 that neither he made any such prayer for
diversion nor he had given any such authority to the petitioner to make such
prayer for diversion. The diversion order dated 7.6.2004 (Annexure-P/5)
also mentions the land belonging to the petitioner and the land belonging to
late Shiv Narayan Jaisawal and Others separately. However, there is a sale
deed produced by the petitioner side in which late Shiv Narayan Jaisawal
and Others were vendors. The property was sold to Chandrama Singh,
however, the consenting party was the petitioner. The sale deed includes all
the property of description which is mentioned in the report of the Revenue
Inspector which is the basis of passing the diversion order dated 7.6.2004.
There is a statement in the sale deed (Annexure - P/6) that the property
under the description of the sale deed has been diverted vide order dated
7.6.2004 in Revenue Case No. 244/A-2/2003-04 (Annexure-P/5).
Respondent No.2 is not challenging the sale deed dated 29.11.2004 which is
apart from the sale deed in question and was previously executed by the
other title holders in favour of the petitioner.
8. Learned Chhattisgarh Board of Revenue in the impugned order has
held that technical approach of the parties for condoning the delay should
not be taken. It is very clear that the application for review of the order dated
7.6.2004 (Annexure-P/5) has filed after six years. If the statement of
respondent No.2 has to be taken as it is that he was not the signatory to the
application filed, on which the order dated 7.6.2004 has passed, which was
based on the statement in the sale deed dated 7.11.2004 made by late Shiv
Narayan Jaisawal making acquiescence of the order passed on 7.6.2004
(Annexure-P/5) for diversion of land gives impression that Shiv Narayan
Jaisawal had knowledge about the diversion proceedings. In such
circumstance, no objection was raised by him soon after the diversion or
soon after the execution of sale deed and it has taken six years to file an
application for review only by making an allegation of fraud. The same is not
enough until and unless the issue of fraud was substantiated by cogent and
reliable evidence. In the case of Basawaraj and Another vs. Special Land
Acquisition Officer (supra), the Supreme Court has held in paragraph 12,
which is as follows:
'12. It is a settled legal proposition that law of limitation may
harshly affect a particular party but it has to be applied with
all its rigour when the statute so prescribes. The Court has no
power to extend the period of limitation on equitable grounds.
"A result flowing from a statutory provision is never an evil. A
Court has no power to ignore that provision to relieve what it
considers a distress resulting from its operation." The
statutory provision may cause hardship or inconvenience to a
particular party but the Court has no choice but to enforce it
giving full effect to the same. The legal maxim "dura lex sed
lex" which means "the law is hard but it is the law", stands
attracted in such a situation. It has consistently been held
that, "inconvenience is not" a decisive factor to be considered
while interpreting a statute.'
In the case of Brijesh Kumar and Others vs. State of Haryana and
Ors., reported in (2014) 11 SCC 351, the Supreme Court has held in
paragraph 10, which is as follows:
'10. The courts should not adopt an injustice-oriented
approach in rejecting the application for condonation of
delay. However the court while allowing such application
has to draw a distinction between delay and inordinate
delay for want of bona fides of an inaction or negligence
would deprive a party of the protection of Section 5 of the
Limitation Act, 1963. Sufficient cause is a condition
precedent for exercise of discretion by the Court for
condoning the delay. This Court has time and again held
that when mandatory provision is not complied with and
that delay is not properly, satisfactorily and convincingly
explained, the court cannot condone the delay on
sympathetic grounds alone.'
9. As discussed herein-above, there appears to be material present to
show that respondent No.1 was aware of the developments according to
which the diversion orders were passed and the sale deed that was
executed by him on subsequent date i.e. 7.11.2004. The statement was
made by him in the manner of acquiescence to the diversion proceedings.
Hence, there is nothing to hold that respondent No.1 was not aware of the
proceedings and therefore, he was required to submit explanation sufficiently
which he has not submitted, therefore, taking guidance from the view of
Supreme Court in Basawaraj and Another vs. Special Land Acquisition
Officer, (supra) and in Brijesh Kumar and Others vs. State of Haryana
and Ors., (supra), I am of this view that the impugned order passed by the
Board of Revenue is unsustainable. Hence, the petition is allowed and the
impugned order is quashed. As a result of which, the order passed by the
Collector dated 2.7.2012 stands restored.
Sd/-
(Rajendra Chandra Singh Samant)
Judge
Nimmi
