Gujarat High Court
Karshandas B Makadia vs State Of Gujarat on 16 October, 2025
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Reserved On : 01/10/2025
Pronounced On : 16/10/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4881 of 2002
With
R/SPECIAL CIVIL APPLICATION NO. 12559 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-
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Approved for Reporting Yes No
✓
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KARSHANDAS B MAKADIA & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR RS SANJANWALA(728) for the Petitioner(s) No. 48
MR. AADIT R SANJANWALA(9918) for the Petitioner(s) No.
13,15,18,19,21,22,27,28,32,34,39,4,41,42,44,5
MS SIMRAN PAHWA(12846) for the Petitioner(s) No. 1
ADVOCATE NAME DELETED for the Respondent(s) No. 23,25,31,32
APPEARANCE WITHDRAWN for the Respondent(s) No. 20
MR VISHAL C MEHTA(6152) for the Respondent(s) No. 55.1,55.2
MS DIMPLE M PARIKH(7500) for the Respondent(s) No.
13,33,35,36,37,38,38.1,38.2,38.3,38.4,38.5,39,50,51,53
MS SM AHUJA(118) for the Respondent(s) No. 8.3
NOTICE ISSUED BY PUBLICATION for the Respondent(s) No.
11,14,15,16,17,18.1,18.2,18.3,19,22.1,22.2,22.3,24,27,28.1,28.2,28.3,28.4,28
.5,29,3,30,40,41.1,41.2,41.3,42,43,44,45,46,48,49,5,54,6,8.1,8.2,8.4,8.5,8.6,8
.7
SIMPLE M PARIKH(8370) for the Respondent(s) No.
13,33,35,36,37,38,39,50,51,53
DECEASED LITIGANT for the Respondent(s) No. 18,22,28,41
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Respondent(s) No. 55,8
DELETED for the Respondent(s) No. 12,21,35,47,52
MR SHIVAM PARIKH, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,56,57
MR JITENDRA M PATEL(620) for the Respondent(s) No. 10,26,34
MR MJ PARIKH(577) for the Respondent(s) No.
13,36,37,38,38.1,38.2,38.3,38.4,38.5,39,50,51,53
MR PK SHUKLA(1056) for the Respondent(s) No. 9
MR PS CHAMPANERI(214) for the Respondent(s) No. 4,7
Page 1 of 70
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
CAV JUDGMENT
TABLE OF CONTENTS
HISTORY OF THE PETITIONS......................................................3
THE SHORT FACTS OF CASE.......................................................8
SUBMISSION OF THE PETITIONERS...........................................18
SUBMISSION OF RESPONDENT NO. 9 - ONE OF THE
AGGREGATORS.........................................................................28
SUBMISSION OF RESPONDENT NOS. 13, 36 TO 39, 50, 51 AND
53 - ORIGINAL OWNERS - PLAINTIFF.......................................31
SUBMISSION OF RESPONDENT NOS. 1, 2, AND 3 - STATE AND
ITS AUTHORITIES.....................................................................33
SUBMISSION OF RESPONDENT NOS. 4 AND 7 - DEVELOPERS....35
POINTS FOR DETERMINATION..................................................36
ANALYSIS.................................................................................37
POINT NO. (i)...........................................................................37
POINT NO. (ii)..........................................................................44
POINT NO. (iii).........................................................................54
POINT NO. (iv).........................................................................62
DIRECTIONS TO CIVIL COURTS.................................................64
DIRECTIONS TO REGISTERING AUTHORITY...............................66
CONCLUSION............................................................................67
1. Both these writ petitions are filed under Articles 226/227
of the Constitution of India by Rajdhani Cooperative Housing
Society Ltd. (hereinafter referred to as "Society") including its
members, who aggrieved by the illegal and unauthorized acts
of the private respondents herein, having so obtained consent
decree from Civil Court as well as got it registered unilateral
cancellation deeds of sale deeds in relation to lands situated at
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Survey Nos.73, 78 to 80, 81/1, 81/2, 83 and 84, at Village
Nabhoi, District Gandhinagar (hereinafter referred to as "the
lands").
HISTORY OF THE PETITIONS
2. Before adverting to the facts and the issues germane in
these writ petitions, it would be appropriate to first refer to
the past history of this litigation, as follows:-
2.1. These writ petitions were initially heard and decided
by Co-ordinate Bench of this Court vide its common oral
judgment dated 01.05.2024, thereby, learned Single Judge
dismissed these writ petitions by holding that the petitioners
have an alternative efficacious remedy available under law for
the prayers sought in these writ petitions.
2.2. It appears that the petitioners challenged the said
common judgment passed by the Co-ordinate Bench of this
Court by way of intra-court appeals before the Division Bench
of this Court, being Letters Patent Appeal Nos.518 of 2024 and
519 of 2024.
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2.3. After hearing the parties, the Division Bench of this
Court, vide its CAV Judgment dated 17.05.2024, quashed and
set aside the aforesaid common judgment passed by the Co-
ordinate Bench of this Court by the learned Single Judge of
this Court. Having done so, the Division Bench remanded the
matters back to the learned Single Judge by restoring both
these petitions.
2.4. While remanding/restoring both these writ petitions,
the Division Bench arrived at the conclusion that petitioners
cannot be relegated to an alternative remedy after about 22
years of pendency of the writ petitions. Accordingly, the
learned Single Judge has been requested to decide the writ
petitions as expeditiously as possible, on its merits.
2.5. In view of the aforesaid judgment of the Division
Bench, both these writ petitions are restored back to their
original file and placed before this Court for hearing.
3. These matters were initially heard at length and reserved
for judgment by this Court vide its order dated 09.07.2025,
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but request made by the learned advocates of the petitioner to
list these matters again for hearing on 16.07.2025, which was
accepted. When these writ petitions were again taken up for
hearing, the petitioners submitted several documents, which
included sale deeds executed between the parties in relation to
the lands. Such sale deeds pertain to the execution of the sale
of the lands by its original owners in favour of Respondent
Nos.8 and 9 herein, and in turn by them in favour of
Petitioner - Society, which have already taken on record.
4. The prayers prayed for in Special Civil Application
No.12559 of 2002 are as under:-
"6(A) The Honourable Court be pleased to issue a writ of
mandamus or writ in the nature of mandamus or writ of certiorari
or writ in nature of certiorari or any other appropriate writ, direction
or order securing the name of the petitioner society in revenue
record with the protection and its title (1) to quash and set aside
the order recording the said Consent Terms and the consequential
decree dated 27th March, 2002 passed in the Regular Civil Suit
No.30 of 1998.
(B) Be pleased to declare that the registration of the Cancellation
Deeds dated 30th June, 2000, Cancellation Deeds dated 10th
June, 2000 and the deed extending the so called oral tenancy of
Gopalbhai C. Amin, dated 30th June, 2000 and 10th July, 2000,
are void and to command the respondent see not to register the
said deeds of Cancellation and the Deeds extending oral tenancy
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dated 30th June, 2000 and 10th July, 2000. Copies of the Index II
whereof are at Annexure-L and M.
(C) Pending hearing of this petition, this Hon'ble Court be pleased
to command the respondent Nos.1 to 3 not to make any changes
in the Revenue Records on the basis of the Deeds of Cancellation
dated 30th June, 2000 and 10th July 2000 (copies of the Index - II
whereof are Annexure - L above) as well as on the basis of the so
called documents extending the oal tenancy dated 30th June,
2000 and 10th July, (sic June) 2000.
(D) Alternatively, this Hon'ble Court be pleased to pass such order
that pending the hearing and final disposal of the petition, the
Hon'ble Court be pleased to restrain the respondent Nos.1 to 3
from making any changes in the Revenue Records relating to
lands bearing S.No. 73, 78, 79, 80, 81/1, 81/2, 83, 84 on the basis
of the Deeds of Cancellation dated 30th June, 2000 and 10th July,
2000 (copies of the Index where of are Annexure-L above) as well
as on the basis of the so called documents extending the oral
tenancy dated 30th June, 2000 and 10th July, 2000.
(E) This Hon'ble Court be pleased to stay the execution and
operation of the Consent Terms recorded in Regular Civil Suit
No.30 of 1998 on 27.3.2000, till the final disposal of this petition.
(F) The Hon'ble Court be pleased to pass such other order as may
be deemed just and proper in the circumstances of the case.
(G) The Hon'ble Court be pleased to provide cost of petition to the
petitioner."
5. Special Civil Application No.4881 of 2002 is taken as the
lead matter. The prayers prayed for in this writ petition are as
under:
"(A) That the Hon'ble Court in exercise of powers conferred under
Article 227 of the Constitution of India, be pleased to call for the
record and proceedings of Regular Civil Suit No.30 of 1998 of the
Court of Civil Judge, Gandhinagar and be pleased (1) to declare
that the Consent Terms filed in the said proceedings are a
fraudulent, collusive, unlawful and non est (2) to quash and set
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aside the Order recording the said Consent Terms and the
consequential decree dated 27th March 2002 passed in the said
suit.
(B) That the Hon'ble Court be pleased to issue a writ of certiorari
and/or mandamus or any other appropriate writ, direction or Order
and be pleased: (1) To declare that the registrations of the
Cancellations Deeds dated 30th June, 2000, Cancellation Deeds
dated 10th June, 2000, and the deed extending the so called oral
tenancy of Gopalbhai C Amin dated 30th June 2000 and 10thJuly
2000, are void and to command the Respondent Nos.2 not to
register the said Deeds of Cancellation and the Deeds extending
oral tenancy dated 30th June 2000 and 10th July 2000. Copies of
the index II whereof are at Annexure-L & M) (2) to command the
Respondent Nos.1 to 3 not to make any changes in the Revenue
Records on the basis of the Deeds of Cancellation dated 30th
June 2000 and 10th July 2000 (copies of the index-II whereof are
annexed-L above) as well as on the basis of the so called
documents extending the oral tenancy dated 30th June 2000 and
10th June 2000 (copies of the index-II whereof are annexed-M
above)
(C) that pending the hearing and final disposal of the Petition, the
Hon'ble Court be pleased to restrain the Respondents no.1 to 3
from making any changes in the Revenue Records relating to
lands bearing S.No.73, 78, 79, 80, 81/1, 81/2, 83 and 84 on the
basis of the Deeds of Cancellation dated 30th June 2000 and 10th
July 2000 (copies of the Index where of are annexed-L above) as
well as on the basis of the so called documents extending the oral
tenancy dated 30th June 2000 and 10th July 2000 (copies of the
index-II whereof are annexed-M above).
(D) That pending the hearing and final disposal of the Petitioners,
the Hon'ble Court be pleased to restrain the Respondents No.4 to
55, either jointly or severally from interfering with the possession
of the members to in the lands of the society, bearing survey
No.from creating any interest in the lands of the society, bearing
survey Nos. 73, 78, 79, 80, 81/1, 81/2, 83 and 84, as also from
transferring or disposing off the same, in any manner whatsoever.
(E) That pending the hearing and final disposal of the Petition, the
Consent Terms recorded in Regular Civil Suit No.30 of 98 on
27.3.2002, at Annexure-N be stayed.
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(F) That pending the hearing and final disposal of the Petition, the
Hon'ble Court be pleased to appoint a Court Commissioner to
make inventory of the records of the Society at the office of the
Society, which is at the office of the Respondent No.4 to 7,
situated at 20-21, National Chambers, Ashram Road, Ahmedabad
and be pleased to direct the said Commissioner to cease and
collect the said and place the same in the custody of the Hon'ble
Court.
(G) For costs.
(H) Such other and further relief as may be deemed fit in the facts
of the present case be granted."
6. There were several civil applications filed by the
petitioners seeking miscellaneous reliefs, which were allowed
by this Court vide orders dated 09.07.2025. So far as Civil
Application No. 3 of 2025 is concerned, it was heard and
reserved for its order. Today itself, by way of a separate order,
same is also partly allowed by this Court.
THE SHORT FACTS OF CASE
7. The short facts necessitated to resolve the dispute/issues
germane in these writ petitions are as under:-
7.1. The original petitioners of Special Civil Application
No.4881 of 2002 are members of the Society, and such Society
happens to be the petitioner of Special Civil Application
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No.12559 of 2002. Now, the Society also become co-petitioner
of Special Civil Application No. 4881 of 2002 by the order
dated 09.07.2025, passed in Civil Application No. 2 of 2019 in
Special Civil Application No. 4881 of 2002.
7.2. Respondent Nos. 1, 2, and 3 are the government and
its authorities, whereas Respondent Nos. 10 to 55 are the
original owners of the lands (hereinafter referred to as
"Original Owners"). Respondent Nos. 8 and 9 were the initial
purchasers of the lands (hereinafter referred to as
"Aggregators"), who, in turn, sold the lands to the Petitioner -
Society, and Respondent Nos. 4 to 7 are the developers of the
lands in question.
7.3. The original owners appear to have executed around
11 registered sale deeds in favour of the Aggregators between
1968 to 1980 for the lands. The Mamlatdar, Gandhinagar, vide
its order dated 14.10.1985, initiated an inquiry under Section
84(C) of the Gujarat Tenancy and Agricultural Land Act, 1948
(hereinafter referred to as "the Tenancy Act"), thereby,
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declared the transactions between the owners and Aggregators
for selling the lands illegal and consequently forfeited the
lands. Nonetheless, parties were given one chance to restore
the lands to its original position.
7.4. The Aggregators filed a Tenancy Appeal No.5 of 1986
before the Prant Officer, Gandhinagar, under Section 74 of the
Tenancy Act, which was allowed by the Appellate Authority
vide its order dated 08.08.1986, thereby, quashed and set aside
the order dated 14.10.1985, passed by the Mamlatdar,
Gandhinagar, as referred to hereinabove.
7.5. The Aggregators appear to have sold the lands to the
Society by executing a registered sale deed in the year 1987,
and two additional sale deeds were executed by the
Aggregators in favour of the Society in the year 1996. By
virtue of the execution of registered sale deeds by the
Aggregators in favour of the Society, the title of the lands
stood transferred in favour of the Society.
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7.6. Some of the original owners, i.e., Respondent Nos. 10,
11, 12, 18, 26, and 34 (hereinafter referred to as "Plaintiff"),
appear to have filed Regular Civil Suit No. 30 of 1998 before
Civil Judge, Gandhinagar, claiming that they are in occupation
of the lands and sought a permanent injunction to protect their
possession. The suit was initially filed on 04.02.1998, being
Regular Civil Suit No. 30 of 1998, against only two
defendants, i.e., Defendant No. 1 - the Society, and Defendant
No. 2 - Smt. Laxmiben.
7.7. Thereafter, the Plaintiffs filed an application on
04.04.1998, below Exhibit 17 in the suit, to delete the Society
from the array of the suit, which was allowed by the Trial
Court.
7.8. Simultaneously, on the very day, another application
below Exhibit 18 filed by the Plaintiffs to implead one of the
Aggregators, i.e., Respondent No. 9 - Vashram Bharwad, to be
joined as defendant No.3 in the suit. Such application came to
be allowed on 03.12.1998.
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7.9. Pending the suit, the Original Owners presented one
unilateral cancellation deed before Sub-registrar, Gandhinagar
for its registration in regards to the Cancellation of sale deeds
executed by them in favour of the Aggregators, as aforesaid,
registered between 1968 to 1980. Such unilateral cancellation
deed was registered on 30.06.2000, before the Sub-Registrar,
Gandhinagar. It further appears that another separate document
was created by the original owners, thereby, declared that
Respondent No. 55 herein would be a permanent tenant of the
lands.
7.10. Likewise, the Aggregators also prepared a similar type
of unilateral cancellation deed, which was also registered on
10.07.2000, whereby, they unilaterally canceled the sale deeds
executed by them in favour of the Society, executed and
registered by them in year 1987 & 1996.
7.11. Thereafter, on 04.11.2000, an application below
Exhibit 33 came to be filed in the aforesaid suit by a third
parties, whereby they sought to implead themselves in the suit
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as defendants. Such application appears to have been filed at
the instance of the Aggregators and the Society. It is a specific
case of the Society that it neither authorized the Aggregators
nor, in fact, filed such application. It remains undisputed that
such application was never heard and decided by the Trial
Court and remained pending till consent decree passed by Trial
Court. It appears that the Society, being shown as Applicant
No. 3 in such application, represented by its chairman and
secretary i.e., Vashram Bharwad - Respondent No. 9 - one of
the Aggregators.
7.12. Thereafter, on 27.03.2002, a compromise agreement
was filed below Exhibit 51 in the aforesaid suit, wherein it
was agreed that the contents of the plaint were true and
correct, whereby the defendants would not interfere with the
possession of the plaintiff and would not question their
ownership over the lands. Such consent terms/agreement
appear to have been executed between the Plaintiff and the
Defendants. The thumb impression of the Aggregators put on
the side of the defendants, and so also, the thumb impression
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of Respondent No. 9, one of the Aggregators, was also affixed
on such compromise agreement, showing him as secretary of
the Society.
7.13. It is required to be noted here that the Society was
initially joined in the suit but deleted by the Plaintiffs vide its
application below Exhibit 17, which was allowed on
04.04.1998, and as such, an application filed below Exhibit 33
till passing of the consent decree remained undecided by the
Trial Court. Thus, in view of aforesaid, undisputedly the
Society never in any form joined in the aforesaid suit.
7.14. Unnoticing such fact, the Trial Court accepted such
compromise agreement executed between the parties to the suit
and passed a consent decree on 27.03.2002. It appears that an
order was passed below Exhibit 51 by the Trial Court on
27.03.2002, whereby the Trial Court recorded the subjective
satisfaction of the parties to the suit and, having so observed
that the parties have voluntarily executed a consent agreement
and their lawyers are present, accordingly, a decree could be
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drawn as per the consent terms/agreement. So, the Trial Court
decreed the aforesaid suit as per the above referred consent
terms/agreement.
7.15. Having come to know about such unilateral execution
of a cancellation deed by the Aggregators as well as the
original owners, and so also, the consent decree drawn by the
Trial Court in the aforesaid suit, the petitioners herein have
challenged the illegal and unauthorized action of the private
respondents in form of the consent decree passed by the Trial
Court in the aforesaid suit and so also, challenged the
registration of unilateral cancellation deed registered by
respondent - authority by way of the present petitions.
7.16. The respondents have appeared in these petitions
through their respective lawyers and have also filed their
replies. Private respondents, whether Aggregators or original
owners as the case may be, have opposed these petitions
mainly on the ground that petitioners having an alternative
remedy to get relief as prayed in this petitions, these petitions
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should not be entertained by this Court. Nevertheless, they are
unable to dispute the aforesaid factual aspects, which emerges
from the documents made available on the record. Neither the
Plaintiff nor the Aggregators have been able to demonstrate
before this Court that how the thumb impression of
Respondent No. 9, one of the Aggregators, affixed in the
consent terms, showing him as secretary of the Society. The
Aggregators failed to submit any documents to show that at
the time of presenting application below Exh.33 and / or
consent terms/agreement in the aforesaid suit, the respondent
no.9 - one of the aggregators was the chairman/secretary of
the Society.
7.17. The State, through the Deputy Collector, filed a
detailed reply, contending, inter alia, that the documents,
which were executed and registered by the original owners and
Aggregators on 30.06.2000 and 10.07.2000, respectively
(hereinafter referred to as "Unilateral Cancellation Deeds"),
were unauthorizedly and illegally executed inasmuch as the
title of the lands stands in favour of the Society. It is
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contended that these documents are illegal and sale deeds
executed in favour of the Society in the year 1987 & 1996 can
never be revoked. (See Paras 5, 20, 26, and 36 of State's
reply).
7.18. It appears that during the pendency of the present writ
petitions, the original owners appear to have filed Special Civil
Application No. 464 of 2004 before this Court, seeking
mutation of their name in the revenue records. The aforesaid
petition came to be allowed by Co-ordinate Bench of this
Court vide order dated 16.03.2004 on the basis of the aforesaid
consent decree, albeit, suppressed the pendency of the present
writ petitions, and interim orders passed therein.
7.19. The petitioners appear to have filed Miscellaneous Civil
Application No. 482 of 2004 to recall the said order passed in
the aforesaid application. After noticing the aforesaid facts and
the orders passed in the present petitions, the Co-ordinate
Bench of this Court has recalled its order dated 16.03.2004,
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passed in Special Civil Application No. 464 of 2004, having
allowed said application vide its order dated 25.11.2016.
7.20. Even the revenue authorities granting Non-Agricultural
Use (NA) permission in favour of the Society for the lands
questioned by the Aggregators before this Court by way of a
petition being Special Civil Application No. 7612 of 2013,
wherein it has been so held by Co-ordinate Bench of this Court
that Respondent No. 9, Vashram Bharwad, one of the
Aggregators, having already sold the lands to the Society, has
no locus standi to challenge NA permission granted by the
competent revenue officer in favour of the Society.
7.21. In light of the aforesaid undisputed facts and so also,
the pleadings of the parties, I would now like to consider their
legal submissions, on merits.
SUBMISSION OF THE PETITIONERS
8. Learned Senior Advocate Mr. R.S. Sanjanwala, with
Learned Advocate Mr. Aditya Sanjanwala, would vehemently
submit that the consent decree passed by the Trial Court on
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27.03.2002, is not only contrary to the rule of procedure but
passed exceeding its jurisdiction and in violation of the
principles of natural justice. It is submitted that, as per the
record of Regular Civil Suit No. 30 of 1998 filed by the
Plaintiff, it would suggest that the Society never joined in the
suit, inasmuch as, it was initially joined but deleted before the
Court issued any notice to the defendants. It is submitted that
when such would be the case, the impugned consent decree
passed by the Trial Court is null and void, having obtained
through practicing fraud upon the Court.
8.1. Learned Senior advocate Mr. Sanjanwala would also
assiduously submit that when the Society never a party to the
suit and Respondent No. 9, one of the Aggregators,
unauthorisdely affixed his thumb impression showing himself as
secretary of the Society, even though the Society was never a
defendant in the suit, the consent agreement itself is nothing
but a fraud played by the parties before the Trial Court to
obtain a consent decree by fraudulent means. It is submitted
that any order or decree obtained through practicing fraud is
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null and void, non est, and requires to be quashed and set
aside.
8.2. Learned Senior Advocate Mr. Sanjanwala would
respectfully submit that the impugned consent decree obtained
by playing fraud on the Court by dishonestly misrepresenting
the Society to be a party to the suit; in that factual scenario,
such decree requires to be quashed and set aside on the
ground of fraud.
8.3. Learned Senior Advocate Mr. Sanjanwala would further
respectfully submit that when a party suppresses material facts
and documents and obtained any order from the Court of law,
it would amount to play fraud with the Court, and such illegal
act of the party requires to be set at naught by this Court by
taking its cognizance. It is submitted that, as per the catena of
decisions of the Honorable Supreme Court, when any order
obtained through fraud is brought to the notice of the Court,
such order cannot be allowed to stand in the eye of law.
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8.4. Learned Senior Advocate Mr. Sanjanwala, would
submit that neither the Aggregators nor the original owners
had, on the date of registration of the unilateral cancellation
deeds in question, any authority under law to execute such
deeds. It is respectfully submitted that when such deeds were
executed, they have no right, title, or interest in the lands and
in fact, without any authority, executed and registered such
deeds. Thus, they are non est in the eye of law.
8.5. Learned Senior Advocate Mr. Sanjanwala would
humbly submit that in unilateral cancellation deed of the sale
deed, without the original purchaser (Society) being a signatory
to such deed, such document is non est and void. It is
respectfully submitted that such void documents could not have
been registered by the Sub-Registrar.
8.6. Learned Senior Advocate Mr. Sanjanwala would
respectfully submit that cancellation deed of any sale deed
would be a reconveyance by the purchaser to the
seller/vendor, which requires the signature of both parties
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inasmuch as, such cancellation also amounts to transfer, as per
Section 7 of the Transfer of Property Act, 1882 (hereinafter
referred to as "the Act, 1882"). It is submitted that in
unilateral cancellation deed in question dated 10.07.2000, the
Society is shown as the vendee and the Aggregators are shown
as the vendor. As such, undisputedly, in the year 2000, when
such unilateral cancellation deed in question was executed and
registered, the Society was the titleholder/owner of the lands;
thereby, the Society ought to have been shown as the vendor
and the Aggregators ought to have been shown as the vendee.
It is further submitted that despite the unilateral cancellation
deed dated 10.07.2000, was only registered at the instance of
the Aggregators inasmuch as, none of the signatories of the
Society signed such cancellation deed, so it becomes unilateral
cancellation of sale deed dated 12.10.1987 executed by the
Aggregators in favour of the Society, and the same is not
permissible in law.
8.7. Learned Senior Advocate Mr. Sanjanwala would further
submit that when the Aggregators once transferred the lands,
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thereby, the ownership vested in favour of the Society in the
year 1987, such cancellation deed without obtaining the
signature of the signatory of the Society could not have been
registered by the Sub-Registrar, Gandhinagar. It is submitted
that as per Rule 47 of the Gujarat Registration Rules, 1970
(hereinafter referred to as "the Rules, 1970"), the Sub-
Registrar is empowered to examine whether the documents
sought to be presented by the party is a proper person, who is
competent to present it or not. If it is found from such
examination that the person concerned is not competent to
present such deed of cancellation, the Sub-Registrar can refuse
registration. It is submitted that when the Sub-Registrar,
unnoticing the aforesaid facts and the incompetence of the
Aggregators to present the cancellation deed, which was
unauthorisdely registered by the Sub-Registrar, such action of
the Registrar, having acted dehors the rule, can always be
questioned by way of the present petition.
8.8. Learned Senior Advocate Mr. Sanjanwala would further
submit that the conduct of the private respondents would
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clearly indicate that even after selling the lands in favour of
the Society, by way of different methodologies, be it
registering the unilateral cancellation deed or filing a civil suit
wherein a consent decree was obtained by suppressing material
facts, and also filing petitions being Special Civil Application
Nos. 464 of 2004 and 7612 of 2013, would disentitle them to
object the prayers made in these petitions. It is submitted that
the acts and deeds of the plaintiff/original owners/Aggregators
are nothing but practicing fraud upon the Court and keeping
the Society busy in various litigations, which was unwarranted.
It is respectfully submitted that when the aforementioned
private respondents have lost their title over the lands, having
sold it to the Society, filing such a frivolous litigations and
also registering unilateral cancellation deeds are nothing but an
unauthorized and illegal act on their part, which requires to be
dealt with strictly by this Court, to maintain the rule of law in
society.
8.9. Learned Senior Advocate Mr. Sanjanwala would
respectfully submit that when the Society is already joined as
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one of the petitioners in Special Civil Application No. 4881 of
2002, its application being Civil Application No. 2 of 2019 was
allowed by this Court on 09.07.2025; as such, objections raised
by the private respondents in regards to the locus standi of the
petitioner - Society and its members to maintain these
petitions would not survive. It is submitted that though
arguments of locus standi initially raised in the first round of
litigation, after the remand of the matter by the Division
Bench, such arguments are now not pressed into service by the
private respondents, having not so argued it.
8.10. Lastly, Learned Senior Advocate Mr. Sanjanwala would
submit that when the matters are remanded back to this Court
by the Division Bench, arguments regarding an alternative
remedy available to the petitioner to file an appropriate
application before the Trial Court questioning the consent
decree, as well as filing a civil suit for seeking declaration of
unilateral cancellation deeds pales into insignificance. It is
submitted that, as per the direction issued by the Division
Bench of this Court, this Court is required to decide both these
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petitions on its merits. It is respectfully submitted that there
are no disputed questions of fact involved in the matter,
inasmuch as, the documents which are on record are not
disputed documents in terms of their genuineness, but the
dispute is only about their mode of execution/registration and
the passing of a consent decree by the Trial Court through an
act of fraud. So, this Court, in its writ jurisdiction having
power under Articles 226/227 of the Constitution of India, can
very well examine all these issues germane in the petitions on
the basis of such undisputed facts and documents.
8.11. According to learned Senior advocate Mr. Sanjanwala,
this Court is required to undertake an inquiry into the
allegation of fraud committed by the aforementioned private
respondents having obtained the consent decree dated
27.03.2002, passed by the Trial Court and unauthorisdely get it
registered the unilateral cancellation deeds dated 30.06.2000,
and 10.07.2000, respectively.
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8.12. To buttress his arguments on each aspect of the issues
germane in the matters, Learned Senior Advocate Mr.
Sanjanwala would rely upon the following authorities:-
Suppression of material documents also amounts to fraud on the
Court
1. Commissioner of Customs, Kandla Vs. Essar Oil Ltd.- (2004) 11
SCC 364 (Para 30,31,34 to 37)
Non-est and void documents cannot be registered by a sub-
registrar
2. Thota Ganga Laxmi Vs. Gov. of Andhra Pradesh- (2010) 15
SCC 207 (referred to full bench of SC in (2016) 10 SCC 767-Para
3)
3. Latiff Estate Line India Ltd. Vs. Hadeeja Ammal & Ors.- AIR
2011 Mad 66 (Para Nos.48,54 & 58)
4. Noble John Vs. State of Kerala 2010 SCC Online Ker 2561
(Para 1 and 21)
Once fraud is established, no issue for maintainability survives.
5. S.P. Chengalvaraya Naidu Vs. Jagannath & Ors. (1994) 1 SCC
1 (Para 1)
6. United India Insurance Co. Ltd. Vs. Rajendra Singh & Ors.-
(2000) 3 SCC 581
7. A.V. Papayya Sastry & Ors. Vs. Government of A.P. & Ors.
(2007) 4 SCC 221-(Para 19)
8. Chandrasinh Khumansinh Bakola Vs. Ibrahim Suleman Narot
2023: GUHC:40927-(Para 15)
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Not deciding the petition on merits after the petition being
entertained and remained pending for 22 years would lead to a
failure of Justice.
9. State of U.P. Vs. Vs. Mohammed Nooh (AIR 1958 SC 86)-(Para
15)
10. Tata Chemicals Ltd. Vs. Adityana Nagar Panchayat (2001) 2
GLR 1538 (Para 5 & 6)
11. Costa & Co. Pvt. Ltd. Vs. Sales Tax Officer, Margao & Ors.
(2002 (1) MHLJ 288 (Para 8)
12. Ganga Retreat and Towers Ltd. & Ors. Vs. State of Rajasthan
& Ors. (2003) 12 SCC 91 (Para 18)
13. Durga Enterprise Pvt. Ltd. & Anr. Vs. Principal Secretary, Gov.
of U.P. & Ors. (2004) 13 SCC 665 (Para 3)
14. Karmajot Co-Operative Hsg. Society Ltd. Vs. State of Gujarat-
AIR 2023 Guj. 183 (Para 12)
8.13. Making the above submissions, Learned Advocate Mr.
Sanjanwala would request this Court to allow the present
petitions.
SUBMISSION OF RESPONDENT NO. 9 - ONE OF THE
AGGREGATORS
9. Learned Advocate Mr. P.K. Shukla, appearing for
Respondent No. 9, one of the Aggregators, would submit that
the present writ petitions, filed by the petitioners herein, are
required to be rejected only on the ground that there is an
alternative efficacious remedy available to the petitioners to
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challenge the consent decree as well as the cancellation of the
sale deeds.
9.1. Learned Advocate Mr. Shukla would submit that there
are several disputed questions of law and facts involved, which
cannot be looked into by this Court in its writ jurisdiction
under Articles 226/227 of the Constitution of India.
9.2. Learned Advocate Mr. Shukla would further submit
that the agreement executed by Respondent Nos. 4 to 6 and
the Society contains an arbitration clause; therefore, this Court
should restrain itself from exercising its writ jurisdiction in
favour of the petitioner to resolve the dispute between the
parties. It is further submitted that there is an outstanding
amount from members of the Society, and there are legal dues
from members of the Society, being land revenue to be
recovered, and there is also a deficit stamp duty to be
recovered by the Deputy Collector, Gandhinagar; therefore, the
present writ petitions require to be dismissed.
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9.3. Learned Advocate Mr. Shukla would further submit
that, as such, there is a dispute regarding members of the
Society and the Society itself for allotment and administration
of the Society; such dispute requires to be resolved by way of
a suit to be filed before the Board of Nominees under Section
96 of the Gujarat Cooperative Housing Society Act, thereby
also, the present writ petitions are not maintainable.
9.4. Learned Advocate Mr. Shukla, during the course of his
oral submissions, would submit that in fact, the respondent
no.9 was also be fooled by original owners and in fact, no
thumb impression put by respondent no.9 in the consent terms
/ agreement placed before the Trial Court in the suit. It is
submitted that an independent civil suit is filed by respondent
no.9 against original owners questioning the cancellation deed
dated 30.06.2000 in question, which is pending before the
competent Civil Court. So according to him, in view of
aforesaid facts and circumstances, this Court should not
entertain these writ petitions.
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9.5. To buttress his arguments, learned advocate Mr.Shukla
would rely upon the following decisions:-
(i) Late Chhotabhai V/s Dilipbhai Thanki, reported in 2024
(1) G.L.H. page no.114 paragraphs no.: 5.6, 5.8, 5.8.1,5.9, 5.9.1
to 5.9.5;
(ii) Patel Vinodbhai Kalidas V/s Patel Pravinbhai
Kacharabhai reported in 2021 (3) G.L.R. 2601 paragraphs no.:
6, 6.1.1 & 6.1.2 & 9.1, 9.2;
(iii) Triloksingh V/s Anirudh (dead) through legal
representtives and other reported in 2020 (6) S.C.C. 629
paragraphs no.: 15 TO 21, 23 & 24;
(iv) Ramji madir narsinhji others V/s Narsinh nagar alis tekri co-
op housing society ltd & others reported in 1979 G.L.R. 801
paragraphs no.: 23 & 27;
(v) Jayantilal Hansraj Shah & others V/s Hemkunverben
Dolatrai Dave & others, Reported in 1996 (3) G.L.R. 522
paragraphs no.: 10 to 18;
(vi) Ghanshybhai Trikamlal promoter of Proposed Kaltaru V/s
State of Gujarat, Reported in 2017(4) G.L.R. 2749 paragraphs
no.: 5 to 9, 12 & 13;
(vii) Satya pal Anand V/s State of Madhya Pradesh & others
reported in 2016 (10) S.C.C. 767, paragraphs no.: 25 to 27, 29
to 32, 34, 36, 41, 44 & 47;
(viii) Roshina T V/s Abdul Azeez K.T. & others reported in AIR
2019 S.C. 659. Paragraphs no.: 15;
(ix) State of Bombay V/s Purushottam jog naik reported in
AIR 1952 S.C. 317 para-16 & 17;
(x) Mahesh s/o Murigeppa V/s Ishar s/o basappa & others
decided on 4/3/2024 by the Hon'ble High Court of Karnataka at
Dharwad bench. Paragraphs no.: 10 to 19;
(xi) Bhikhubhai Somabhai Patel V/s State of Gujarat &
others reported in 2001 (1) G.L.H. 538, paragraphs no.: 6 to 15;
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(xii) Batchu suba Laxmi & others V/s Sannidhi Srinivasulu &
others decided on 8/12/2009 by the Hon'ble High Court of
Andhra Pradesh Paragraphs no.: 12 to 14;
(xiii) Chandpasha s/o Amirsab Ansari V/s Ejaz s/o Amirsab
Ansari & others decide on 29/01/2024 by the High Court of
Judicature as bench at Aurangabad. Paragraph no.: 7 to 18.
SUBMISSION OF RESPONDENT NOS. 13, 36 TO 39, 50, 51
AND 53 - ORIGINAL OWNERS - PLAINTIFF
10. Learned Advocate Mr. M.J. Parikh would submit that
these writ petitions are required to be dismissed solely on the
ground that there are disputed questions of facts and law
involved in them, and as such, the petitioners have an
alternative remedy available under law to agitate their
grievance before the competent Civil Court.
10.1. Learned advocate Mr. Parikh would submit that
assuming without admitting that the petitioner - Society was
not made a party to the consent agreement executed between
the plaintiff and defendant of the suit, whereby a consent
decree was drawn by the Trial Court, has an alternative
efficacious remedy available to file a review application before
the Trial Court or to file a regular civil appeal under Section
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96 of the Civil Procedure Code, 1908 (hereinafter referred to as
"CPC") with the leave of the Court.
10.2. Learned Advocate Mr. Parikh would rely upon the
decision of the Full Bench of this Court in the case of Sakina
Sultanali Sunesara (Momin) vs. Shia Imami Ismaili Momin
Jamat Samaj reported in 2020 (1) GLR 586, which was later
on confirmed by the Supreme Court of India vide its decision
dated 23.04.2025, reported in 2025 INSC 570.
10.3. Learned Advocate Mr. Parikh would further submit
that this Court should not enter into factual controversy
germane in the matters and relegate the petitioners to avail the
alternative efficacious remedy which is available to them in
law.
10.4. To buttress his argument, Learned Advocate Mr. Parikh
would rely upon the following decisions:-
(i) Navratan Lal Sharma vs. Radah Mohan Sharma and
Others reported in 2024 INSC 970;
(ii) Jogendrasinhji Vijaysinghji vs. State of Gujarat and
Orders reported in (2015) 9 SCC 1;
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(iii) State of U.P. and Another vs. Ehsan and Another
reported in 2023 INSC 906;
(iv) Sakina Sultanali Sunesara (Momin) vs. Shia Imami
Ismaili Momin Jamat Samaj reported in 2020 (1) GLR 586;
(v) Sakina Sultanali Sunesara (Momin) vs. Shia Imami
Ismaili Momin Jamat Samaj In Civil Appeal No.6681 - 6682 of
2023 dated 23.04.2025 reported in 2025 INSC 570.
10.5. Making the above submissions, learned advocates
appearing for the respondents request this Court to dismiss the
present petitions.
SUBMISSION OF RESPONDENT NOS. 1, 2, AND 3 - STATE
AND ITS AUTHORITIES
11. Learned AGP Mr. Shivam Parikh would submit that, as
such, the dispute germane in the petitions would be inter se
between the petitioners and private respondents.
11.1. Nonetheless, Learned AGP Mr. Parikh would submit
that, as per the affidavit submitted by the Deputy Collector in
the matter, the cancellation deed executed by the private
respondents unilaterally without obtaining the signature of the
petitioner Society, at the time of registration, amounts to
creating fraudulent documents, not sustainable in law.
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11.2. Learned AGP Mr. Parikh would submit that on the
basis of such fraudulent documents, any order obtained by the
private respondents by way of a consent decree, such order
requires to be interfered with by this Court while exercising its
power under Articles 226/227 of the Constitution of India.
11.3. Learned AGP Mr. Parikh would further submit that the
State would never recognize any such fraudulent deed,
inasmuch as it would not be in favour of suppressing such
unauthorized and illegal acts of the private respondents,
thereby legally allowing the cancellation deeds to be registered
on its record.
11.4. Learned AGP Mr. Parikh would humbly submit that an
appropriate order be passed by this Court in the interest of
justice.
SUBMISSION OF RESPONDENT NOS. 4 AND 7 -
DEVELOPERS
12. Learned Advocate Mr. P.S. Champaneri, appearing for
Respondent Nos. 4 and 7, would submit that, as such, his
client would not justify any of the acts of the original owners
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and Aggregators in the execution/registration of unilaterally
registered cancellation deed and a consent decree obtained by
playing fraud.
12.1. Learned Advocate Mr. Champaneri would submit that
Respondent Nos. 4 and 7 are more or less concerned with their
documents which are in the custody of this Court and
documents which are at Serial Nos.6 to 9, shown at Page 30E
of Civil Application No. 3 of 2025; if allowed to be taken back
by Respondent No. 4 - firm, they have no objection if other
documents be handed over to the petitioners herein.
12.2. So, Learned Advocate Mr. Champaneri would request
this Court to pass an appropriate order in regards to returning/
handing back the documents seized and in the custody of this
Court.
13. Heard learned advocates appearing for the respective
parties at length.
14. No other and further submissions made by the learned
advocates appearing for the respective parties.
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POINTS FOR DETERMINATION
(i) Whether, in the facts and circumstances of the case,
the petitioners are required to be relegated to any
other alternative remedy available to them under law
for questioning and setting aside the consent decree as
well as the registered unilateral cancellation deed?
(ii) Whether, in the facts and circumstances of the
case, the consent decree passed by the Trial Court can
be held to be obtained by practicing fraud?
(iii) Whether, in the facts and circumstances of the
case, the registered unilateral cancellation deed in
question can be quashed and set aside by this Court
while exercising its power under Articles 226 of the
Constitution of India?
(iv) If the answer to the above questions is in
affirmative, are the petitioners entitled to the relief as
prayed in the petitions?
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ANALYSIS
POINT NO. (i)
15. Learned Advocate Mr. Shukla and learned Advocate Mr.
Parikh, appearing for the Aggregators/original owners of the
lands, have vehemently submitted that the petitioners have an
alternative efficacious remedy available under law; thereby, the
petitioners can question the consent decree by filing an
appropriate application before the Trial Court either under
Order XLVII read with Section 114 of CPC or filing appeal
under Order XLI read Section 96 of CPC seeking leave of the
Court, and so also, can file a civil suit for cancellation of the
registered cancellation deeds in question. According to them,
this Court should not exercise its writ jurisdiction under
Articles 226/227 of the Constitution of India to interfere with
such consent decree and registered unilateral cancellation deeds
in question.
16. As such, the entire thrust of their arguments canvassed
would center around only one aspect: that an alternative
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remedy is available to the petitioners and this Court should not
entertain the present writ petitions.
17. Per contra, Learned Senior Advocate Mr. Sanjanwala has
vehemently submitted that once the Division Bench of this
Court quashed and set aside the common judgment passed by
a Co-ordinate Bench of this Court on 01.05.2024, and
remanded the matter back to this Court for rehearing of these
petitions on their merits, such arguments made by the original
owners and Aggregators are not available to them and as such
are required to be rejected.
18. Having heard learned advocates appearing for the
respective parties on this issue, I would like to state that an
argument of alternative remedy would no longer be available
to the respondents, especially the original owners and
Aggregators, inasmuch as, such argument was in terms negated
by the Division Bench of this Court, whereby it not only
quashed and set aside the oral judgment dated 01.05.2024,
passed by Co-ordinate Bench of this Court dismissing both
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these petitions on the ground of having an alternative remedy
to the petitioners, but also remanded the matter back to this
Court to decide both these petitions on its merits.
19. The relevant observations and directions issued by the
Division Bench in these regards reads as under:-
"25. In our considered opinion, the petitioner society had no option
but to challenge both, the consent terms which was the basis of the
consent decree allegedly obtained by fraud and collusion, as also
the cancellation deeds registered allegedly in collusion between the
respondents, in the same petition by invoking the jurisdiction of the
High Court both under Articles 226 and 227 of the Constitution of
India.
27. The fact remains that the writ petitions were filed in the year
2002. The parties have exchanged affidavits and at one stage of
the proceedings, as informed to us, the writ court had also
summoned the original record of the Regular Civil Suit No. 30 of
1998 to examine the contention of the petitioners society of the
consent decree being outcome of fraud and collusion between the
respondents. Thus, after about more than 22 years of the pendency
of the writ petition, at the stage of final hearing, there was no
justification for the learned single Judge to relegate the petitioners
to file a Civil Suit without making a proper inquiry into the material
on record. The decision of the learned single Judge in relegating
the petitioners society to file a Civil Suit without adverting to the
issues of collusion and fraud and wrongful registration of the
cancellation deeds by the Sub-Registrar, causes serious prejudice
to the petitioners society, namely the appellants herein, whose
rights in the lands-in-question have come under cloud because of
the consent decree and the cancellation deeds.
28. In view of the above, while setting aside the impugned order
dated 1.5.2024 passed by the learned single Judge, both the
Special Civil Application No. 4881 of 2002 and Special Civil
Application No. 12559 of 2002 are restored to their original
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numbers. With due respect, it is provided that the learned single
Judge is required to adjudicate both the writ petitions on merits
after making due inquiry into the allegations of fraud and collusion
committed by the respondents in obtaining the cancellation deed
dated 27.03.2002 and the consent decree dated 30.06.2000 and
10.06.2000, registered by the Sub-Registrar."
(emphasis supplied)
20. So, in view of the aforesaid clear observations and
directions issued by the Division Bench, I am not at all
impressed by the submissions so canvassed by Learned
Advocate Mr. Shukla and Learned Advocate Mr. Parikh that
both these petitions be dismissed on the ground of an
alternative efficacious remedy available to the petitioners
including Arbitration and or to approach Board of Nominees.
21. As such during course of arguments, it is not even
whispered by learned advocate Mr. Chapaneri appearing for
the Developer that any dispute exist between developer & the
society, except collection of documents, it even no longer
remained, inasmuch as, there appears broad consensus between
them to get back documents seized by the Court Commissioner.
Thus, in view of aforesaid, there is no question of relegating
the Society for arbitration. Likewise, there appears no dispute
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between the members and the Society, thereby there was no
need to file any suit before Board of Nominee as alleged.
22. There is no cavil on the point that any consent decree
passed by the Trial Court can be questioned by way of either
filing an appropriate application before the Trial Court either
under Order XLVII read with Section 114 of CPC, or filing an
appeal with leave to appeal under Order XLI read with Section
96 of CPC, as decided by the Full Bench of this Court in the
case of Sakina (supra), confirmed by the Honorable Supreme
Court of India.
22.1. At the same time, this would be an alternative remedy
available to the petitioners, but in light of the aforesaid
judgment/direction issued by the Division Bench of this Court,
now such plea would not be available to the original owners
and Aggregators that the petitioners may be relegated to the
aforesaid remedy to question the consent decree passed by the
Trial Court and so also to file civil suits seeking cancellation of
the unilateral cancellation deed.
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22.2. It is a settled legal position of law that irrespective of
any position of law, any issue earlier decided between the
parties by a competent Court of law would bind them on such
issue unless challenged before a higher forum. (See Section 11
of CPC). It is remained undisputed that neither original owner
nor aggregators have challenged the aforementioned judgment
passed by division bench in said appeal before higher forum,
at this stage, they cannot be allowed to agitate such issue i.e.,
alternative remedy.
23. Even otherwise, it is settled legal position of law that
relegating party to avail an alternative remedy by not
exercising writ jurisdiction by High Court is a rule of self-
restraint. Nonetheless, there are well defined exceptions to
such rule, which carved out by Hon'ble Supreme Court in its
various decisions.
24. In the case of PHR Invent Educational Society v. UCO
Bank, reported in (2024) 6 SCC 579, it has been held thus:-
"37. It could thus clearly be seen that the Court has carved out
certain exceptions when a petition under Article 226 of the
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Constitution could be entertained in spite of availability of an
alternative remedy. Some of them are thus:
(i) where the statutory authority has not acted in accordance
with the provisions of the enactment in question;
(ii) it has acted in defiance of the fundamental principles of
judicial procedure;
(iii) it has resorted to invoke the provisions which are repealed;
and
(iv) when an order has been passed in total violation of the
principles of natural justice."
(emphasis supplied)
25. Thus, in view of the aforesaid judgment passed by the
Division Bench in the earlier round of litigation, which is not
questioned by the original owners and Aggregators before the
Honorable Supreme Court, it is now no longer a ground
available to them to argue again and again the same point,
which has already been rejected by the Division Bench. Having
so observed and keeping in mind the law laid down by
Hon'ble Supreme Court in the case of UCO Bank (Supra), I am
of the view that this is fit case, in which this Court must
exercise its power under Article 226/227 of the Constitution of
India. So, Point No.(i) is answered accordingly.
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POINT NO. (ii)
26. The facts, which are observed hereinabove, are not in
dispute. The original owners, having executed seven registered
sale deeds between 1968 to 1980 in favour of the Aggregators
in relation to the lands, thereby, transferred titles of the lands
to the Aggregators. Likewise, the Aggregators, having so
executed registered sale deeds and sold the lands in the year
1987/1996 by way of registered sale deeds in favour of the
Society, in turn, lost their title over the lands. By virtue of
registered sale deeds, the Society became the owner of the
lands, holding title.
26.1. It remains undisputed that some of the original owners
(plaintiff) filed Regular Civil Suit No. 30 of 1998. Initially, the
Society was joined as Defendant No. 1, but before issuance of
any notice, it was deleted from the array of the suit on
04.04.1998, whereas Respondent No. 9, one of the
Aggregators, came to be joined in the suit on 03.12.1998, on
the basis of an application below Exhibit 18, on 04.04.1998.
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26.2. It also remains undisputed on record that an
application for joining party was filed below Exhibit 33 in the
aforesaid suit wherein Applicant Nos. 1 and 2 were
Aggregators, and applicant no.3 shown as Society represented
through respondent no.9 - one of the aggregators, showing
him as Chairman/Secretary of Society. Although, there is
nothing on record that can be confirmed that on the date of
filing of the aforesaid application, Respondent No. 9 happens
to be the Chairman/Secretary of the Society. Learned advocate
Mr. Shukla is not in a position to show any document,
whereby, it can be confirmed that respondent no.9 was in fact
Chairman/Secretary of society.
26.3. Be that as it may, such application filed below Exhibit
33 remained pending till the consent decree was drawn by the
Trial Court. So, in view of the aforesaid, neither the Society
nor one of the Aggregators - Respondent No. 8 - Sangrambhai
Ghelabhai Bharwad joined in the suit, till the time of passing
of consent decree. As such, respondent no.9 one of the
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applicant of aforesaid application Exhibit 33, already joined in
the suit proceeding at the instance of plaintiff.
26.4. Surprisingly, consent terms executed between the
Plaintiff and Defendants of the aforesaid suit came to be
submitted on the record of the suit below Exhibit 51. Wherein,
it can be noticed that on the side of the defendants, the thumb
impressions of both the Aggregators were found, and so also,
the thumb impression of Respondent No. 9 was found as a
Secretary of the Society.
26.5. As per such consent terms/agreement executed between
the parties, the defendants accepted the claim of the Plaintiffs
made in the plaint and agreed that they will not question the
ownership of the Plaintiffs in future in regard to the lands.
26.6. Even it is a matter of surprise that the Trial Court,
without ascertaining the basis facts and unnoticing the pending
applications, more particularly Exhibit 33 (joining party
application), not only accepted the consent agreement executed
between the parties but clearly recorded the subjective
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satisfaction of the parties, who appeared to have been
presented before Trial Court through their advocates, so on
that basis, passed a consent decree in question.
27. When the Society was never made a party to the suit and
neither Respondent No. 9 was its Chairman/Secretary, nor, in
fact, the Society being one of the applicant in the joining party
application filed below Exhibit 33 before the Trial Court, the
thumb impression of Respondent No. 9, showing him as
Secretary of the Society in the consent terms, is nothing but a
clear misrepresentation on the part of Respondent No. 9, who
seems to have appeared before the Trial Court when such
consent terms/agreement was accepted by the Trial Court.
28. It is a settled legal position of law that any order passed
on false representation, wherein a party making such
representation knowing fully well that he is making a false
representation, any order obtained through such practice of
misrepresentation amounts to fraud. Whenever fraud is
established on record, any order obtained by a party through
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practicing fraud requires to be set at naught, being nullity and
non est in the eye of law. It is cannot be gainsaid that fraud
vitiate everything.
29. At this stage, it would be apt to refer and rely upon the
recent Full Bench Decision of Hon'ble Supreme Court in the
case of Vishnu Vardhan alias Vishnu Pradhan vs. State of Uttar
Pradesh and Others reported in 2025 SCC OnLine SC 1501 ,
wherein it has been observed thus:-
"2. At the end of the last century, this Court in S.P. Chengalvaraya
Naidu v. Jagannath noticed the growing trend of abuse of the
process of law by dishonest litigants playing fraud on courts. Fraud
was held to be an act of deliberate deception with the design of
securing something by taking unfair advantage of another: a
deception in order to gain by another's loss. The opening
paragraph of such decision reads as follows:
"Fraud avoids all judicial acts, ecclesiastical or temporal"
observed Chief Justice Edward Coke of England about three
centuries ago. It is the settled proposition of law that a judgment
or decree obtained by playing fraud on the court is a nullity and
non est in the eyes of law. Such a judgment/decree -- by the
first court or by the highest court -- has to be treated as a nullity
by every court, whether superior or inferior. It can be challenged
in any court even in collateral proceedings.
This Court then warned that:
5. The principle of "finality of litigation" cannot be pressed to the
extent of such an absurdity that it becomes an engine of fraud
in the hands of dishonest litigants. The courts of law are meant
for imparting justice between the parties. One who comes to the
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court, must come with clean hands. We are constrained to say
that more often than not, process of the court is being abused.
Propertygrabbers, 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, who's case is
based on falsehood, has no right to approach the court. He can
be summarily thrown out at any stage of the litigation.
3. "Fraud unravels everything" was famously said by Lord Denning
in Lazarus Estates Ltd. v. Beasley, emphasising that fraud can
invalidate judgments, contracts and all transactions. The principle
highlights the importance of honesty and transparency in legal
proceedings and transactions. However, it is a cardinal principle of
law that fraud has to be pleaded and proved. Order VI Rule 4, of
the Civil Procedure Code, 1908 may be referred to ordaining that
particulars, inter alia, of fraud have to be stated in the pleadings.
4. From the multiple decisions of this Court on 'fraud', what follows
is that fraud and justice cannot dwell together, the legislature never
intends to guard fraud, the question of limitation to exercise power
does not arise, if fraud is proved, and and even finality of litigation
cannot be pressed into service to absurd limits when a fraud is
unravelled.
60. Be that as it may, obtaining of the impugned order by Reddy in
his favour by playing fraud on the High Court is conspicuous by its
presence. Thus, we find Vishnu's core argument to be creditworthy
and compelling for us to hold that judicial orders procured by Reddy
by subverting the judicial process through fraud and concealment of
material facts cannot be permitted to stand.
61. In decisions abound, the Courts have consistently nullified
orders obtained through fraudulent means. Key excerpts from some
of these decisions read thus:
a. In United India Insurance Co. Ltd. v. Rajendra Singh, this Court
reiterated that fraud unravels everything:
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3. "Fraud and justice never dwell together" (fraus et jus
nunquam cohabitant) is a pristine maxim which has never lost
its temper over all these centuries. Lord Denning observed in a
language without equivocation that "no judgment of a court, no
order of a Minister can be allowed to stand if it has been
obtained by fraud, for, fraud unravels everything" (Lazarus
Estates Ltd. v. Beasley, [[1956] 1 Q.B. 702 : [1956] 1 All ER
341 : [1956] 2 WLR 502 (CA)]).
b. In Shrisht Dhawan (Smt) v. Shaw Bros., it was held:
20. Fraud and collusion vitiate even the most solemn
proceedings in any civilised system of jurisprudence. It is a
concept descriptive of human conduct. Michael Levi likens a
fraudster to Milton's sorcerer, Comus, who exulted in his ability
to, 'wing me into the easy-hearted man and trap him into
snares'. It has been defined as an act of trickery or deceit. In
Webster's Third New International Dictionary fraud in equity has
been defined as an act or omission to act or concealment by
which one person obtains an advantage against conscience
over another or which equity or public policy forbids as being
prejudicial to another. In Black's Legal Dictionary, fraud is
defined as an intentional perversion of truth for the purpose of
inducing another in reliance upon it to part with some valuable
thing belonging to him or surrender a legal right; a false
representation of a matter of fact whether by words or by
conduct, by false or misleading allegations, or by concealment
of that which should have been disclosed, which deceives and is
intended to deceive another so that he shall act upon it to his
legal injury........
c. In A.V. Papayya Sastry v. Govt. of A.P., this Court held:
21. Now, it is well-settled principle of law that if any judgment or
order is obtained by fraud, it cannot be said to be a judgment or
order in law. Before three centuries, Chief Justice Edward Coke
proclaimed:
"Fraud avoids all judicial acts, ecclesiastical or temporal."
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22. It is thus settled proposition of law 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 the 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.
23. ***
24. In Duchess of Kingstone, Smith's Leading Cases, 13th Edn.,
p. 644, explaining the nature of fraud, de Grey, C.J. stated that
though a judgment would be res judicata and not impeachable
from within, it might be impeachable from without. In other
words, though it is not permissible to show that the court was
"mistaken", it might be shown that it was "misled". There is an
essential distinction between mistake and trickery. The clear
implication of the distinction is that an action to set aside a
judgment cannot be brought on the ground that it has been
decided wrongly, namely, that on the merits, the decision was
one which should not have been rendered, but it can be set
aside, if the court was imposed upon or tricked into giving the
judgment.
25. It has been said: fraud and justice never dwell together
(fraus et jus nunquam cohabitant); or fraud and deceit ought to
benefit none (fraus et dolus nemini patrocinari debent).
d. The judgment by Denning, L.J. in Lazarus Estates Ltd. (supra),
which has since been quoted with approval by this Court in a catena of
decisions including Nidhi Kaim (supra), asserted intolerance for fraud
in legal proceedings in the following words:
No court ... will allow a person to keep an advantage which he
has obtained by fraud. [...] Fraud unravels everything. The court
is careful not to find fraud unless it is distinctly pleaded and
proved; but once it is proved, it vitiates judgments, contracts and
all transactions whatsoever....
(emphasis supplied)
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30. Having so considered the peculiar facts of the case on
hand and applying the ratio of the aforesaid decisions of Full
Bench of Hon'ble Supreme Court to the aforesaid facts of the
present case, which are not in dispute, according to my view,
the consent decree in question passed by the Trial Court on
the basis of consent terms/agreement executed between the
Plaintiff and Aggregators would nothing but a fraudulent
decree obtained by aforesaid persons on making false and
incorrect representation before the Court of law.
31. According to my view, such fraudulent decree obtained
by plaintiff and aggregators would neither bind the Society nor
sustainable in law.
32. The authorities cited by Learned Senior Advocate Mr.
Sanjanwala on the issue of fraud would also squarely applied
to the facts of the present case, inasmuch as, they hold the
field. No other and contrary citations were pressed into service
by the respondents in this regard.
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33. In light of the above peculiar facts and circumstances of
the case, I am of the view that the consent decree in question,
having been obtained by practicing fraud on the Court,
requires to be quashed and set aside by this Court by
exercising its power under Article 227 of the Constitution of
India, inasmuch as, the consent decree is nothing but a nullity
and non est in the eye of law obtained by practicing fraud.
34. In the latter portion of the judgment, this Court would
like to make suitable observations/directions to be given to
Civil Courts in regards to take appropriate safeguard before
passing the consent decree, on basis of such type of consent
agreement. So, Point No. (ii) Answered accordingly.
POINT NO. (iii)
35. So far as the registration of the unilateral cancellation
deed in question, thereby it cancelled the sale deed in favour
of the Society is concerned, it remains undisputed on record
that the unilateral cancellation deed so registered by the
Aggregators on 10.07.2000, undisputedly, the Society, though
shown as the vendee, but in fact, it ought to have been shown
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as the vendor in a case of cancellation of a sale deed. This
would be an apparent and inherent defect remained in the
deed, unnoticed by the registering authority, when registered
the unilateral cancellation deeds.
36. Likewise, it is so apparent and undisputed on record that
such unilateral cancellation deed was not signed by any of the
signatories of the Society. Such cancellation deed was only
signed by the Aggregators, having been unilaterally registered
by them with Sub-Registrar, Gandhinagar.
37. Similarly, the cancellation deed so registered on
30.06.2000, by the original owners, having the same pattern as
observed hereinabove, when also, the vendor ought to have
been the Aggregators but was shown as the vendee, the
signatures of the Aggregators were not obtained in such
cancellation deed.
38. At this stage, it is required to be taken note of the
affidavit in reply by the State filed through its Deputy
Collector, Gandhinagar in this matter, that such cancellation
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deeds, though registered, would not stand in the eye of law,
inasmuch as, none of the signatories of such cancellation deeds
had title as on the date of execution/registration of such
cancellation deeds. It pointed out in the affidavit in reply by
the State that these documents are fraudulent documents and
neither the original owners nor the Aggregators had any right
in law to present such cancellation deeds for their registration.
(See Paras 5, 20, 26, and 36 of Reply).
39. So, the State - Authorities are also of the view that the
documents executed / registered by the Aggregators dated
10.07.2000 and original owners dated 30.06.2000, thereby,
unilaterally cancelled their respective sale deeds, including the
sale deed executed by the Aggregators in favour of the Society,
are fraudulent documents and do not stand as per law.
40. At this stage, I would like to refer the Rule 45 of the
Gujarat Registration Rules, 1970, which reads as under:-
"45. Regarding the verification of a document before accepting it for
registration
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(1) Before accepting any document for registration, the Registering
Officer is not required to consider its legality. However, the officer must
ensure that:
(a) The appropriate stamp has been affixed and used on it;
(b) It has been presented within the prescribed time and at the correct
office;
(c) It has been presented by the proper person;
(d) If it relates to immovable property, it is not subject to objections
under Sections 21 or 22;
(e) If the document is in a language unknown to the officer, the
provisions of Section 19 have been complied with;
(f) Any interlineations, blank spaces, erasures, or alterations in the
document have been signed or initialed by the person or persons who
made them, as required under Section 20;
(g) It does not violate the provisions of sub-section (1) of Section 5 of
the Foreign Exchange Regulation Act, 1947;
(h) If it relates to the change in government-allocated land, the original
sale certificate and the written prior permission of the relevant
authorities have been presented.
(2) If, at the time of presentation of the document, the fee prescribed
under Section 78 is demanded but not paid, the Registering Officer
shall refuse to register the document."
(emphasis supplied)
41. As per the aforesaid Rule, more particularly, Rule 45(1)(c)
of the Rules, 1970, it was incumbent upon the Registering
officer to verify the fact that the person who is presenting the
deed is proper person or not.
42. As observed hereinabove, none of the presenters of the
aforesaid cancellation deeds dated 30.06.2000 and 10.07.2000
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respectively, were proper person having competence to present
such cancellation deed before the Sub-Registrar, Gandhinagar,
inasmuch as, they were not holding any title over the lands,
when such deed registered.
43. These aspects remained unnoticed rather escaped from
noticed by the Registering Authority, which is one of the
mandatory obligations and requirement of law, when registered
the unilateral cancellation deeds. So, when the authority failed
in its statutory duty and did not act in accordance with the
rules framed under the Rules, 1970, such an act of the State
requires to be corrected by this Court while exercising its
power under Articles 226 of the Constitution of India by
issuing a Writ of Mandamus. [See UCO Bank (supra) Para 37(i)]
44. Apart from the aforesaid non-compliance with the
statutory rules framed under Rule 45(1)(C) of the Gujarat
Registration Rules, 1970, another crucial and legal aspect
regarding validity of execution and registration of the
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unilateral cancellation deeds also needs to be examined by this
Court.
45. As per Section 62 of the Indian Contract Act, 1872
whenever parties agree to rescind or alter the original contract,
it can be permitted by way of substitution of a new contract,
thereby, the parties may not perform the original contract.
Section 62 of the Indian Contract Act, 1872 reads as under:-
"62. Effect of novation, rescission, and alteration of contract.--If the
parties to a contract agree to substitute a new contract for it, or to
rescind or alter it, the original contract, need not be performed.
Illustrations
(a) A owes money to B under a contract. It is agreed between A, B and
C that B shall thenceforth accept C as his debtor, instead of A. The old
debt of A to B is at an end, and a new debt from C to B has been
contracted.
(b) A owes B 10,000 rupees. A enters into an arrangement with B and
gives B a mortgage of his (A's) estate for 5,000 rupees in place of the
debt of 10,000 rupees. This is a new contract and extinguishes the old.
(c) A owes B 1,000 rupees under a contract. B owes C 1,000 rupees B
orders A to credit C with 1,000 rupees in his books, but C does not
assent to the arrangement. B still owes C 1,000 rupees, and no new
contract has been entered into."
(emphasis supplied)
46. The deed of cancellation amounts to rescission of
contract. Therefore, when a party having executed the
document seeks its cancellation, it needs to be viewed in light
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of Section 62 of the Indian Contract Act, 1872 and thus, the
cancellation of such original contract (in the present case, a
sale deed) must be done bilaterally and not unilaterally. Thus,
a registered sale deed cannot be unilaterally cancelled by its
executants.
47. It is so argued by Learned Advocate Mr. M.J. Parikh,
appearing for some of the original owners, that the petitioners
are required to file a civil suit questioning the cancellation
deeds, as according to him, as per Section 31 of Specific Relief
Act, 1963, the only remedy to cancel such deed is to file civil
suit.
48. Such argument is not only fallacious but has no legal
basis, inasmuch as, when at the first instance, the Registrar
could not have registered such unilateral cancellation deed in
relation to the cancellation of the sale deed, to get it cancelled
by civil suit is not always required. As noticed hereinabove, to
execute any cancellation deed, it should be done bi-parte and
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not ex-parte, otherwise, such an ex-parte execution of
cancellation deed has no value in the eye of law.
49. According to my view, when the Sub-Registrar failed to
discharge its statutory duty cast upon him under law, thereby,
unnoticing, and overlooking the crucial aspect in regards to the
legal status of person presented unilateral cancellation deed,
might have registered the deeds, this Court should not relegate
the petitioners to file a civil suit that too after about 22 years,
especially, when the facts, as observed hereinabove, are not in
dispute. Hence, in view of the aforesaid, the decisions, so cited
by learned advocate Mr. Parikh and Mr. Shukla on relegating
the petitioners to file civil suit, would not be applicable to the
facts of present case, thus, not helpful to them.
50. As a word of caution, the Registering authority should
always keep in mind that once, any documents / deeds are
registered by them, as such there is no power of cancellation
available with them. In a case of wrong registration of any
document/deed, it causes great inconvenience and hardship to
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citizens. It leads to several litigations, which can easily be
avoided if the authority examines minutely the documents
sought to be presented for its registration.
51. According to my view, the Unilateral Cancellation deeds
so registered by Sub-Registrar in contravention of provision of
law and as such, the unilateral cancellation deeds are executed
contrary to provisions of Contract Act, 1872, cannot stand as
per law.
52. Thus, in light of aforesaid, such registered cancellation
deed requires to be quashed and set aside, having been
presented/registered in flagrant violation of provisions of law
as observed and notice hereinabove. So, Point No. (iii) is
answered accordingly.
POINT NO. (iv)
53. The conduct of the private respondents, namely, original
owners and Aggregators, would clearly indicate that having
sold the lands by them to the Society in the year 1987/1996,
for any reasons best known to them, they not only instituted
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false, frivolous, and vexatious litigations noticed herein above,
but presented/registered unilateral cancellation deeds and,
under the guise of such deeds, obtained a fraudulent consent
decree, on the basis of which, tried to take undue advantage
in the matter.
53.1. Such unauthorized and illegal act of the original
owners/Aggregators requires to be deprecated by all means,
and to give quietus to the dispute between the parties, and as
such, misdeed of them requires to be nipped in the bud.
54. Considering all these aforesaid unauthorized and illegal
acts of the original owners/Aggregators and the Society/its
members required to enter into litigations as referred herein
above, I am of the view that the petitioners are entitled to
receive costs from them, which are quantified to Rs.1,00,000/-
to be paid equally by the original owners/Aggregators to the
petitioners.
55. The aforesaid observations, discussions, and reasons
would only lead to one conclusion that the consent decree as
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well as the unilateral cancellation deeds obtained by the
original owners/plaintiffs/Aggregators by practicing fraud
require to be quashed and set aside, as fraud has no place in
court of law.
56. In view of forging reasons, petitioners are entitled to get
reliefs as prayed in the petitions. So, Point No. (iv) is
answered accordingly.
57. Before parting with this judgment, I would like to issue
direction to the Civil Courts and Registering Authorities to take
appropriate/necessary steps and safeguard to overcome such
issues in future. Therefore, I deem it necessary to issue
suitable directions to the Civil Courts as well as the Registering
Authorities as follows:-
DIRECTIONS TO CIVIL COURTS
57.1. Whenever any consent term/agreement is submitted
before the Civil Court by parties to the suit, the Civil Court is
required to see the contents of all such consent
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terms/agreement executed between the parties including such
agreement is lawful or not.
57.2. The Civil Court needs to check the status of the
parties to the suit and claim made in the suit before it accepts
such consent terms/agreement.
57.3. The Civil Court also requires to see the previous
orders passed in the suit proceedings and/or any application of
a third party for joining or any other applications are pending
or not in the suit.
57.4. If such application is found to be pending, and such
consent terms/agreement are going to affect such party, the
Civil Court should draw the attention of such party by issuing
notice to such party.
57.5. If any of the parties to the suit is a legal
entity/juristic person, a signatory to such party needs to
submit its authority to represent such entity/juristic person to
the satisfaction of the Court, which shall have to be verified
by the Civil Court and on satisfying itself, allow such person
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to execute the consent terms agreement on behalf of such
party.
57.6. The Civil Court, if so required, may call upon all
executants of consent terms/agreement and any of the parties
so left out from it. On satisfying itself in all respects, the Civil
Court may pass appropriate order on such consent
terms/agreement.
57.7. In any case, the Civil Court should not mechanically
accept the consent terms/agreement executed between the
parties but needs to safeguard the interest of all the parties to
the suit and also require to see that such consent
terms/agreement are not presented by applying any
fraud/misrepresentation.
DIRECTIONS TO REGISTERING AUTHORITY
58. The Sub-Registrar, who is, under law, required to
register any documents, including sale deed/cancellation deed
etc., is required to adhere to the procedure outlined in Rule
45 of the Gujarat Registration Rules, 1970.
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58.1. The Registering Authority needs to verify the status of
the presenter of documents/deeds including his identity before
registration of any such documents.
58.2. A unilateral cancellation deed only signed by one of
the signatories to such deed is not recognized in law (See
Section 62 of the Indian Contract Act). In that case, the
Registering Authority may not straightaway register such
unilateral cancellation deed, unless the presenter fulfills all
legal requirement under law to present such cancellation deed.
59. These are the broad directions issued to safeguards the
interest of the party to any lis, whose interest requires to be
protected by the Court and the State respectively. Such
directions issued to avoid any similar type of
fraud/misrepresentation played by mischievous litigant before
the Civil Court/Registering Authority; it may not be an
exhaustive one, but directions shall be followed/adhered to by
Civil Courts and Registering Authorities as and when required
to follow.
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CONCLUSION
60. The upshot of the aforesaid observations, discussions, and
reasons, and considering the aforesaid facts and circumstances
of the present case, and so also, case law discussed herein
above on the issues german, the petitioners cannot be and
should not be relegated to an alternative remedy.
60.1. It is held that the aforesaid consent decree obtained by
way of fraudulent means, and likewise, the unilateral
cancellation deeds are registered in violation of provisions of
law, and as such, it is a fraud committed by the original
owners and Aggregators upon the Society.
60.2. In view of the aforesaid, the consent decree dated
27.03.2002, passed by the Civil Judge (Junior Division),
Gandhinagar, in Regular Civil Suit No. 30 of 1998, is hereby
quashed and set aside having held to be obtained through
fraud.
60.3. Likewise, the unilateral cancellation deeds dated
30.06.2000 and 10.07.2000 executed and registered by the
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original owners and Aggregators of the lands respectively, are
hereby quashed and set aside.
60.4. Consequently, both these petitions are required to be
allowed, which are hereby allowed in terms of Paragraphs
26(A) and 26(B) of Special Civil Application No. 4881 of 2002
and Paragraphs 6(A) and (B) of Special Civil Application No.
12559 of 2002 respectively.
60.5. The Petitioner - Society is entitled to receive a cost of
Rs.1,00,000/- from the original owners and Aggregators, to be
paid by them in equal proportion within a period of one
month from the date of receipt of the copy of this order. In
case of failure, it is open for the petitioner - society to
recover it from them in accordance with law.
60.6. The Registry is hereby directed to send back the
Records and Proceedings of Regular Civil Suit No. 30 of 1998,
to the concern Trial Court, forthwith.
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60.7. In view of the foregoing conclusion, both these
petitions are hereby allowed to the aforesaid extent with costs
as aforesaid. Rule is made absolute accordingly.
60.8. The Registry shall circulate a copy of this order to all
Civil Courts across the State of Gujarat for their perusal and
compliance.
60.9. Likewise, the learned AGP should see to it that the
State bring aforesaid direction to notice of all concerned Sub-
Registrars across the State, so they shall follow such directions
in its true letter and spirit.
(MAULIK J.SHELAT,J)
MOHD MONIS
FURTHER ORDER
After pronouncement of judgment, learned advocate
Mr.M.J.Parikh requests for suspension of this judgment.
In light of what is held in the judgment, request is
refused.
(MAULIK J.SHELAT,J)
MOHD MONIS
