Gujarat High Court
Chandrasinh Khumansinh Bakrola vs Ibrahim Suleman Narot Since Decd ... on 2 August, 2023
Bench: N.V.Anjaria
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 865 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 23711 of 2006
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/LETTERS PATENT APPEAL NO. 865 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair
copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation of
the Constitution of India or any order made
thereunder ?
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CHANDRASINH KHUMANSINH BAKROLA
Versus
IBRAHIM SULEMAN NAROT SINCE DECD THROUGH HEIRS
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Appearance:
MR DIPEN DESAI(2481) for the Appellant(s) No. 1,2
for the Respondent(s) No. 1,1.7,3
MR KM ANTANI, AGP for the State respondent
MR SP MAJMUDAR(3456) for the Respondent(s) No. 1.7.2
MR MEET D KAKADIA(11896) for the Respondent(s) No. 1.7.2
NOTICE SERVED for the Respondent(s) No. 1.7.1,3.3,4,5,6
SERVED BY RPAD (N) for the Respondent(s) No.
1.1,1.2,1.3,1.4,1.5,1.6,2,3.1,3.2,3.4,3.5,3.6,3.7,3.8,3.9,7,8
==============================================================
CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL
and
HONOURABLE MR. JUSTICE N.V.ANJARIA
Page 1 of 17
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Date : 02/08/2023
ORAL JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. We have heard Mr.Dipen Desai, learned counsel
appearing for the appellants, Mr.K.M.Antani, learned
Assistant Government Pleader for the State respondent
and Mr.S.P.Majmudar, learned counsel assisted by
Mr.Meet Kakadia, learned counsel appearing for the
private respondents.
2. This intra-court appeal is directed against the
judgment and order dated 03.08.2021 passed by the
learned Single Judge in allowing the writ petition,
setting aside the order dated 12.06.2006 passed by
the Gujarat Revenue Tribunal in Revision Application
No.TEN.B.S. 88 of 1991, consequently restoring the
order dated 30.11.1990 passed by the Deputy Collector
(Land Reforms), Surat. The appellant No.2 herein
claims to be the tenant of the land in question
namely land bearing Revenue Survey No.591/7
admeasuring 1-Acre 7-Gunthas, situated in village
Kosad, Taluka Choryasi, District Surat, which was
initially recorded in the name of Bai Fatima widow of
Yusuf Ibrahim Ghanchia, on the basis of a declaration
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dated 18.11.1974 under Section 32(G) and 32(O) of the
Bombay Tenancy and Agricultural Lands Act, 1948 (in
short referred to as "the Act 1948").
3. The brief facts of the case relevant to note at
this juncture are that in the Tenancy Case No.1580 of
1974, the application preferred by the appellants
herein - respondent Nos.4 and 5 in the writ petition,
the original petitioners were not impleaded as
parties. The declaration dated 18.11.1974 by
Mamlatdar and ALT was against Bai Fatima, declaring
respondent No.4 - appellant No.2 herein as a tenant
in respect of the land in question. The writ
petitioners claiming themselves to be owners of 1/3 rd
share in Survey No.591/7 preferred an appeal before
the Deputy Collector (Land Reforms), Surat in Tenancy
Appeal No.144 of 1990.
4. Prior to initiation of the proceedings in
appeal challenging the declaration dated 18.11.1974,
Special Civil Suit No.51 of 1975 between the
petitioners and Bai Fatima was pending. The said suit
was instituted by Ibrahim Suleman Narot (petitioner)
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whose heirs and legal representatives are arrayed as
respondent Nos.1.1 to 1.7.2 herein. The said suit was
for declaration of share of the plaintiff in Survey
No.591/7, which was decreed declaring 3/8 th share of
plaintiff and defendant Nos.2, 3, 4 and 5,
collectively. It may be noted that the decree dated
16.05.1988 has attained finality in the year 1988, as
there has been no further challenge.
5. In the Tenancy Appeal No.144 of 1990, which was
initiated after the decree of the Civil Court, the
Deputy Collector while allowing the appeal vide order
dated 30.11.1990 had set aside the order dated
18.11.1974 passed by the Mamlatdar and ALT, Choryasi,
in Tenancy Case No.1580 of 1974. It was recorded by
the Collector that on perusal of the case documents,
it transpired that the Tenancy/32-O/32-G Case No.1580
of 1974 decided on 18.11.1974, on calling for the
tenancy case original documents from the Mamlatdar,
Choryasi, in the report dated 22.06.1990, it was
stated that the said record was not found and the
documents are squandered away. The certified copy of
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the original case documents was produced on behalf of
the appellants. The land under dispute was in
fragment and under Section 32(O) of the Tenancy Act,
the right to purchase could not be granted. On the
contrary, in the inquiry the party had admitted
having made the Satakhat/Agreement to Sell,
therefore, the defendant No.1 therein (appellant
herein) cannot have any tenancy rights arising. It
was further noted that on the same date, the
application under the Tenancy Act was filed, hearing
had taken place and on the same day, the judgment was
delivered. The impugned judgment by the Mamlatdar and
Agriculture Land Tribunal was, thus, held to be ab-
initio nullity. It was, thus, concluded by the
Collector that the appeal cannot be said to be barred
by limitation and the plea of the respondent to
reject the appeal being barred by limitation was not
proper and legal. In the facts and circumstances of
the case, it was held that the matter was required to
be decided on merits.
6. As against this finding, the extract of the
order passed by the Civil Court while decreeing the
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suit namely Civil Suit No.51 of 1975, is also to be
noted herein. The findings record that the appellant
No.1 herein, who was examined by the Civil Court at
Exhibit-102 and asserted that his wife Kanuben
(Appellant No.2 herein) had purchased the land in
Survey No.591/7, was a Sarpanch of the town. The
allegation before the Civil Court was that he had
managed to get the entries in favour of his wife with
respect to the sericulture land and also managed to
get the land sold to his wife. Noticing the said
contention, the Civil Court recorded that since the
Sale Deed executed under Bombay Tenancy and
Agricultural Lands Act, 1948, has not been set aside
by any Court and it was not possible for the Civil
Court to set aside the same being collusive, it was
open for the plaintiff to apply to the Tenancy Court
or the Revenue Tribunal. It was, however, held that
Bai Fatima alone was not entitled to the said price
as the plaintiff and defendant Nos.2 to 5 therein
were collectively entitled to 3/8th share of Survey
No.591/7.
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7. It seems that after decree was prepared in the
year 1988 based on the preliminary decree dated
22.08.1978 in Civil Suit No.51 of 1975, the writ
petitioner had initiated the proceedings before the
Deputy Collector in Tenancy Appeal No.144 of 1990,
which was allowed vide judgment and order dated
30.11.1990. The order passed by the Deputy Collector
was, however, set aside in Revision Application
No.TEN.B.S.88 of 1991, by the Gujarat Revenue
Tribunal vide order dated 12.06.2006 and hence, the
occasion for filing the writ petition, out of which
the instant appeal has arisen, occurred.
8. The learned Single Judge while setting aside
the order passed by the Tribunal dated 12.06.2006 has
recorded that once the declaration with regard to the
share of the writ petitioner to the extent of 3/8 th
share had attained finality in the year 1988, further
challenge to their entitlement/right towards the
property cannot be entertained, by putting them at
predicament where the collusive order is passed. The
learned Single Judge has noted that the order passed
by the Mamlatdar conferring tenancy right upon the
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respondents - appellants herein under Section 32(G)
and 32(O) of the Tenancy Act, was a collusive order
and hence, the petitioners could not be non-suited on
the ground of delay. Moreover, the Civil Court
decreed the suit on 16.05.1988 and within two years,
there was challenge to the order conferring tenancy
rights upon the respondents - appellants herein.
9. These findings returned by the learned Single
Judge are sought to be assailed with vehemence by the
learned counsel for the appellants on the ground that
the fact of declaration dated 18.11.1974 of tenancy
rights of the appellants was very well within the
knowledge of the petitioners. The fact that there was
a declaration in favour of the appellants herein was
brought before the Civil Court and was noted in the
order passing preliminary decree passed on
28.02.1978, itself. The writ petitioners chose to
remain silent and did not challenge the order passed
by the Mamlatdar dated 18.11.1974 till the year 1990
when Tenancy Appeal No.144 of 1990 was instituted,
which was not accompanied by any application under
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Section 5 of the Limitation Act. It was urged that it
is settled law that unless and until application is
made giving explanation for delay, it cannot be
condoned. The contention is that this infirmity in
the order of the Deputy Collector in allowing the
appeal was conveniently ignored by the learned Single
Judge. The provisions of Sections-3, 4, 5 and 6 of
the Limitation Act were pressed into service to
substantiate the said argument.
10. The attention of the Court is invited to the
order passed by the Tribunal wherein it was noted
that knowledge of Tenancy Court's order affecting
sale of disputed land of Survey No.591/7 in which the
writ petitioners (opponents therein) had 3/8th share
was with the opponents in the year 1978. They also
knew that the order of Mamlatdar would become final
unless the appellate proceedings were undertaken
before the appropriate tenancy forum. The gross delay
and latches in approaching the appellate tenancy
forum for which no worthwhile explanation was given
by the appellant, he was not entitled to the
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discretionary relief of condonation of delay in
filing the appeal. Even an order which is termed as
nullity does not cease to be binding unless the party
aggrieved approaches the competent forum for
challenging such order within the applicable period
of limitation. The Tribunal has held that the gross
delay of over 10 years could not have been condoned
without sufficient cause being shown by the Deputy
Collector and hence, the order in appeal was held
illegal and improper.
11. These findings were placed before us in order
to impress that in absence of the application for
condonation of delay, there was no occasion for the
Deputy Collector to condone the delay. The Tribunal,
thus, cannot be said to have erred in law in setting
aside the order passed by the Deputy Collector
allowing the appeal and holding the order dated
18.11.1974 for declaration of tenancy rights of the
appellants as final. Reliance is placed on the
decisions of this Court in Sursangji Ambaram and
others1 and Hansaben w/o. Bhagwanbhai Ratnabhai and
Sursangji Ambaram and others vs. State of Gujarat and another - 2002 (3) GLH 95
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Legal Guardian and others2 and decision of Apex Court
in Board of Trustees of Port of Kandla3, to
substantiate the above submissions. The decision of
the Apex Court in Ragho Singh4; Heirs of Kashiram
Khodabhai, Mahendrabhai Kashibhai and others5; State
of Punjab and others6 and Jadav Prabhatbhai Jethabhai
and others7, were placed before us to assert that in
absence of the application under Section 5 of the
Limitation Act for condonation of delay, there was no
jurisdiction with the Collector to allow the appeal
and it is well-established that even a null and void
order has to be challenged within the period of
limitation.
12. It was vehemently asserted that once the
appellant No.2 was declared tenant by the order dated
18.11.1974 and a certificate dated 11.02.1975 under
Section 32(M) was issued to her on payment of full
Hansaben w/o. Bhagwanbhai Ratnabhai and Legal Guardian and others vs. State of
Gujarat and others - 2009 (3) GLH 271
Board of Trustees of Port of Kandla vs. Hargovind Jasraj - 2013 (0) GLHEL-SC 52575
Ragho Singh vs. Mohan Singh and others - (2001) 9 SCC 717
Heirs of Kashiram Khodabhai, Mahendrabhai Kashibhai and others vs. State of Gujarat
and others - 2009 SCC Online Guj. 9592
State of Punjab and others vs. Gurdev Singh - (1991) 4 SCC 1
Jadav Prabhatbhai Jethabhai and others vs. Parmar Karsanbhai Dhulabhai and others -
AIR 2001 Guj. 118
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purchase price to the landlady, the entry made in the
record about the name of the appellant No.2 dated
24.02.1974 could not have been expunged, as the
appellant had perfected her right as a tenant in the
proceedings under the Bombay Tenancy and Agricultural
Lands Act, 1948. It was further argued that the
petitioners kept silent till the land in question was
acquired in an acquisition proceeding for the
purposes of Gujarat Housing Board. The petitioners
showed interest in the land by filing appeal only
after the compensation was determined and disbursed
to the appellants. This fact has been taken note of
by the Tribunal while allowing the revision setting
aside the order passed in appeal by the Deputy
Collector, restoring the order dated 18.11.1974
passed by the Mamlatdar and ALT, Choryasi.
13. Shri S.P.Majmudar, learned counsel appearing
for the petitioners - private respondents herein has
invited attention of this Court to the findings
returned by the Collector and the Civil Court as
noted above. He has further relied upon the decision
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of the Apex Court in State of Orissa and others8, to
submit that no title can be conferred by a void order
and its validity can be challenged at any stage in
any proceedings. Reliance is placed on the decision
of the Apex Court in A.V.Papayya Sastry9, to assert
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, which can be
challenged in any Court at any time, in appeal,
revision, writ or even in collateral proceedings. The
decision of the Apex Court in S.P.Chengalvarya Naidu
(Dead) By LRS10, has been placed to assert that fraud
avoids all judicial act and a judgment or decree
obtained by playing fraud on the Court is a nullity
and non-est in the eyes of law. Same principle has
been reiterated in the decision of this Court in
Bhanumatiben D. Soni11, which has been placed before
us to assert that such an order can be challenged
beyond the period of limitation. The judgments in Raj
State of Orissa and ors. vs. Brundaban Sharma and another - 1995 Suppl. (3) SCC 249
A.V.Papayya Sastry vs. Government of Andhra Pradesh - 2007 (4) SCC 221
S.P.Chengalvarya Naidu (Dead) By LRS vs. Jagannath (Dead) by LRS - 1994 (1) SCC 1
Bhanumatiben D. Soni vs. State of Gujarat - 2003 (4) GLR 2808
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Kumar Soni12 and Pagi Aataji Kacharaji13, have been
placed to submit that any interference in the order
of the learned Single Judge would result in
resurrection of any illegal and void order.
Interference in an illegal order on the ground of
technicality is not permissible, inasmuch as, a writ
cannot be issued to give life to an illegal order.
14. Having considered the submissions of learned
counsels for the parties and perused the record, from
the finding returned by the Collector in tenancy
appeal, it is more than evident that the appellants
had succeeded in getting declaration of tenancy
rights over the land in question in a proceeding
which was found to be result of fraud and collusion
by the Collector. In view of the finding returned by
the Collector that in the report dated 22.06.1990, it
was indicated that the original documents from the
Mamlatdar, Choryasi, were not found and that the
hearing in the application moved by the appellants
was conducted on the same day of filing and judgment
Raj Kumar Soni vs. State of Uttar Pradesh - 2007 (10) SCC 635
Pagi Aataji Kacharaji Vs. State of Gujarat - 2011 (2) GLR 149
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was delivered, it is evident that there was no
inquiry by the Mamlatdar with regard to the rights of
the landlord therein, before making declaration
in favour of the appellant. It was noted that the
provisions of Section 32(B) cannot be made applicable
to land fragments. Bai Fatimabibi has admitted that
Satakhat / Agreement to Sell was made. Moreover, the
Civil Court passed a decree in favour of the
petitioners and noted that the appellant No.1 herein
was a Sarpanch of the town and has fraudulently got a
declaration in favour of his wife appellant No.2
herein. This finding recorded by the Deputy Collector
in appeal and the Civil Court while declaring 3/8th
share of the petitioners has not been assailed by the
appellants. Their only contention is that the memo of
appeal before the Deputy Collector was not
accompanied with an application to condone the delay.
The act of the Deputy Collector in condoning the
delay in filing the appeal after a period of more
than 10 years is found to be illegal by the Tribunal.
15. The contentions of the counsel for the
appellants pointing illegality in the order of the
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Deputy Collector are technical objections which have
to be examined in the light of the finding about
fraud and collusion. It is settled principle of law
that if any judgment or order is obtained by fraud,
it cannot be said to be a decision in law. Such an
order obtained by playing fraud on the Court,
Tribunal or authority is a nullity and non-est in the
eyes of law. It can be challenged in any Court, at
any time, in appeal, revision, writ or even in
collateral proceedings. Fraud and justice never dwell
together. The principle of 'finality of litigation'
cannot be stressed to the extent of absurdity that it
can be utilized as engine of operation by dishonest
and fraudulent litigants. The Courts of law are meant
for imparting justice between the parties. One who
comes to the Court, must come with clean hands.
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 means indefinitely. 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
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litigation. [Reference: A.V.Papayya Sastry (supra)].
16. We may further note that any interference in
the order of the learned Single Judge on the
technical plea raised by the appellant would result
in revival of the order dated 12.06.2006 passed by
the Tribunal, consequently restoration of the order
dated 18.11.1974 in declaration of the appellant No.2
as tenant. The result would be that by the order of
this Court, the order dated 18.11.1974 passed by the
Mamlatdar and ALT, which is proved to be an outcome
of fraud and collusion, would be revived, no
interference as such can be made in this appeal.
17. While affirming the findings of the learned
Single Judge, for the reasons recorded hereinabove,
we dismiss the appeal being devoid of merits. All
pending application/s are also disposed of. There
shall be no order as to costs.
(SUNITA AGARWAL, CJ )
(N.V.ANJARIA, J)
GAURAV J THAKER
