[Cites 17, Cited by 0]
Karnataka High Court
Bagalkot Cement And Industries Limited vs The State Of Karnataka on 27 February, 2026
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IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 27TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
WRIT PETITION NO. 100103 OF 2015 (LR)
BETWEEN:
BAGALKOT CEMENT AND INDUSTRIES LIMITED
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF COMPANIES ACT, 1956,
AND HAVING ITS REGISTERED OFFICE AT
6TH FLOOR, BLOCK NO.1, STADIUM HOUSE,
VEER NARIMAN ROAD, CHURCHGATE,
MUMBAI-400020, RPTD. BY ITS
AUTHRISED REPRESENTATIVE,
ASSISTANT MANAGER-LEGAL,
MR. ABBAS RAJESAB NIDASHESHI,
AGE: 47 YEARS,
OCC: ASSISTANT MANAGER(LEGAL),
R/O. BAGALKOT.
VISHAL ...PETITIONER
NINGAPPA (BY SRI. PRAMOD KUMAR DUBEY, SENIOR ADVOCATE FOR
PATTIHAL SRI. S.B.HEBBALLI, ADVOCATE)
Digitally signed by VISHAL
NINGAPPA PATTIHAL
Location: HIGH COURT
OF KARNATAKA
AND:
DHARWAD BENCH
Date: 2026.03.06 11:45:45
+0530
1. THE STATE OF KARNATAKA
BY ITS SECRETARY,
REVENUE DEPARTMENT,
M.S.BUILDING, BANGALORE-560001.
2. THE LAND TRIBUNAL
BAGALKOT, REPRESENTED BY
ITS SECRETARY.
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3. TAHSILDAR, BAGALKOT
BAGALKOT, BAGALKOT DISTRICT-587101.
4. SUSHIILAVVA W/O. HANAMANT MADAR
AGED ABOUT 59 YEARS,
OCC: AGRICULTURE,
R/O. NAVANAGAR,
BAGALKOT, TAL/DIST: BAGALKOT.
...RESPONDENTS
(BY SMT. NANDINI B.SOMAPUR, AGA FOR R1 TO R3;
SRI. JAYAKUMAR S.PATIL, SENIOR ADVOCATE FOR
SRI. JAGADISH PATIL, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER OF THE LAND TRIBUNAL, BAGALKOT (R-2) IN
NO.KLR TSR 361 DATED 30.11.1975 A COPY OF THE IMPUGNED
ORDER IS PRODUCED AS PER ANNEXURE-S; CONSEQUENTLY
QUASH THE FORM NO.10 ISSUED BY THE RESPONDENT NO.3 IN
NO.TNC/SR-30-11-1975 DATED 15.04.1983, A COPY OF WHICH
IS PRODUCED HEREIN AS PER ANNEXURE-U; AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 21/01/2026, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA
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CAV O R D E R
The petitioner-Bagalkot Cement and Industries Limited
has filed the present writ petition seeking to quash:
i. The order dated 30.11.1975 passed by the Land
Tribunal, Bagalkot, granting occupancy rights in
favour of respondent Nos.4.
ii. The consequential issuance of Form No.10 dated
15.04.1983 by the Tahasildar.
Brief facts:
2. The petitioner-company is engaged in
manufacturing of cements and claims ownership and
possession of lands bearing R.S.Nos.80/3, 81/3, 82/1 and
83/2 of Bagalkot. These lands were originally acquired by
the then State of Bombay for the benefit of Bagalkot
Cement Co. Ltd., (predecessor of the petitioner-company).
Mutation entry in M.E.No.1930 dated 01.11.1954 was
effected in favour of the company. RTC extract from 1963-
1964 onwards reflect the company's name as owner and the
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lands are shown as "Pada" (uncultivable reserved for
limestone excavation). By virtue of a scheme of
arrangement approved by Board for Industrial and Financial
Reconstruction (B.I.F.R.) dated 20.09.2007, the assets
including the subject lands stood vested in the present
petitioner-company.
3. In 2014, the petitioner received notice from the
Tahasildar pursuant to an application by respondent No.4
seeking mutation based on an alleged Land Tribunal order
dated 30.11.1975. The petitioner on verification discovered
that alleged Form No.7 was filed in the year 1974.
Occupancy rights were granted on 30.11.1975 and Form
No.10 was issued on 15.04.1983. It is the case of the
petitioner that all such documents are fabricated,
manipulated and inserted subsequently in the records. The
petitioner has also lodged a criminal complaint under
Sections 465, 466, 467, 420 and 471 Indian Penal Code
(IPC) against respondent No.4.
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4. It is stated that the petitioner came to know
about the order only in 2014 upon receipt of the notice by
Tahasildar, hence delay is attributable to fraud. If obtained
by fraud, the order of the Land Tribunal is void ab initio and
non est in the eye of law. By way of amendment, the
petitioner also sought to quash Form No.7 dated
26.12.1974 (Annexure-O) on the ground that it was not
filed within time and is fabricated.
5. Statement of objections are filed by respondent
No.4, contending that respondent No.4 was personally
cultivating the lands as on 01.03.1974. Land Tribunal has
granted occupancy rights on 30.11.1975 and Form No.10
has been issued on 15.04.1983. It is stated that Application
for mutation was made on 25.06.1984 and that the
petitioner was party to the Tribunal proceedings. It is also
stated that the criminal proceedings have been dismissed.
6. Learned Senior Counsel Sri Pramod Kumar
Dubey, appearing for the petitioner-company would submit:
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i. The subject lands were acquired by the
then Government of Bombay under
acquisition proceedings culminating in an
award dated 31.08.1954.
ii. The award amount was deposited in
Government Treasury. Upon acquisition,
the land vested absolutely free from
encumbrances and the petitioner is in
possession as an absolute owner of the
schedule properties.
iii. Since vesting has occurred in the year
1954, no agricultural tenancy could legally
exist as on 01.03.1974 when the Karnataka
Land Reforms Act came into force.
iv. The existence of tenancy is a jurisdictional
fact. In the absence of such tenancy, the
Land Tribunal lacked jurisdiction to
entertain Form No.7.
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v. The petitioner was not made a party before
the Land Tribunal. The recorded land owner
was never served notice. No proof of
service, acknowledgment or appearance is
forthcoming, and occupancy order passed
without notice to the recorded owner is
void.
vi. The original Register of applications
produced by the State reveals that after the
entry dated 28.08.1974 in the name of
another applicant, a subsequent entry
dated 26.12.1974 appears in "black ink", in
the name of respondent No.4. Column No.5
landlord's name is left blank, the reference
to final order is also written in "black ink",
while surrounding entries are in "blue ink".
This demonstrates subsequent insertion
and fabrication.
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vii. The original record of rights for 1963-64
shows overwriting in column No.1, inserting
the name of respondent No.4. The mode of
cultivation is written as "iii". Such
overwriting in original revenue records
clearly indicates tampering.
viii. The impugned order is dated 30.11.1975
which falls on Sunday. No roznama, hearing
sheet or proceedings are produced. The
order has been created.
ix. The signature of the authority on the Land
Tribunal order and on Form-application is
forged and overwritten. The affidavit,
application, and order are alleged to have
been created subsequently. Even the
certified copy application is suspected to be
fabricated.
x. Learned Senior counsel relied upon the
following decisions:
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a. Ram Preeti Yadav Vs. U.P. Board of High
School and Intermediate Education1 (Ram
Preeti Yadav).
b. District Primary School Council, West Bengal
Vs. Mritunjoy Das and Others2 (Mritunjoy
Das).
c. State of Orissa and Another Vs. Mamata
Mohanty3 (Mamata Mohanty).
d. Vipin Kumar Vs. Jayadeep and Others4
(Vipin Kumar).
e. A. V. Papayya Sastry and Others Vs.
Government of A. P. and Others5 (Papayya
Sastry).
f. Smt. Sudama Devi Vs. Commissioner and
Others6 (Sudama Devi).
1
(2003) 8 SCC 311
2
(2011) 15 SCC 111
3
(2011) 3 SCC 436
4
(2025) 6 SCC 465
5
(2007) 4 SCC 221
6
(1983) 2 SCC 1
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xi. Learned Senior counsel submits that the
fraud vitiates all proceedings and any order
obtained by fraud is a nullity and can be
challenged at any stage.
xii. Even if criminal proceedings resulted in
acquittal, the same does not validate the
impugned order. The standard of proof
differs and fraud in civil proceedings need
not be proved beyond reasonable doubt.
xiii. Considering the seriousness of forgery
involving public records and possible
involvement of officials, an enquiry by an
independent agency is warranted. On this
ground, it is prayed that the impugned
order dated 30.11.1975 and the
consequential Form No.10 dated
15.04.1983 be quashed and appropriate
direction be issued.
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7. Per contra, learned Senior Counsel Sri Jayakumar
S. Patil appearing for respondent No.4 would contend as
follows:
i. Respondent No.4 was in cultivation prior to
and as on 01.03.1974. Form No.7 was filed on
26.12.1974 within time. Evidence was
recorded before the Land Tribunal and
occupancy rights were granted.
ii. The State has produced the original register of
applications, RTC records and proceedings.
Therefore, allegation of fabrications is
unfounded.
iii. The writ petition is filed after nearly 4
decades. The petitioner had knowledge and
had applied for certified copy. The delay is
unexplained and fatal.
iv. Criminal proceedings alleging forgery was
dismissed. The competent Criminal Court has
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not found any forgery. Therefore, the
allegation of fabrication stands negatived.
v. The Tribunal Order dated 30.11.1975 has
attained finality and the petitioner cannot
reopen settled matters after decades.
vi. Mere difference in ink or overwriting does not
conclusively establish forgery without an
expert opinion. Such allegation cannot be
accepted.
vii. Official acts are presumed to be regularly
performed and the Tribunal Order must be
presumed valid unless proven otherwise. On
those grounds, learned Senior Counsel for
respondent No.4 prays for dismissal of the
writ petition.
8. Learned Additional Government Advocate for the
State submits that the State does not take any adversarial
stand, but has placed the original records before this Court
to enable proper examination of the issues raised, which
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has been perused and directed to be kept in safe custody
for proper adjudication.
9. This Court has carefully considered rival
submissions and perused the material on record. The
following points arise for consideration:
i. "Whether the subject lands having been acquired in
the year 1954 and vested pursuant to award dated
31.08.1954 could at all be the subject matter of
tenancy proceedings under the Karnataka Land
Reforms Act?
ii. Whether original register of applications, Form No.7
register and record of rights disclose interpolation,
overwriting of fabrication affecting the very
foundation of the Tribunal's order?
iii. What order?"
10. All the points are taken up together in order to
avoid repetition of facts.
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11. It is not disputed that the lands in question were
acquired under the acquisition proceedings culminating in
award dated 31.08.1954 and compensation was deposited
in Government Treasury. Upon such acquisition, the lands
vested absolutely free from encumbrances. The Apex Court
in the case of Land and Building Department Through
Secretary and Another Vs. Attro Devi and Others7
(Attro Devi) has held at paragraph No.12 as under:
"12. The issue as to what is meant by
"possession of the land by the State after its
acquisition" has also been considered by
Constitution Bench of Hon'ble Supreme Court
in Indore Development Authority's case (supra). It
is opined therein that after the acquisition of land
and passing of award, the land vests in the State
free from all encumbrances. The vesting of land with
the State is with possession. Any person retaining
the possession thereafter has to be treated
trespasser. When large chunk of land is acquired,
the State is not supposed to put some person or
police force to retain the possession and start
cultivating on the land till it is utilized. The
7
2023 SCC Online SC 396
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Government is also not supposed to start residing or
physically occupying the same once process of the
acquisition is complete. If after the process of
acquisition is complete and land vest in the State
free from all encumbrances with possession, any
person retaining the land or any re-entry made by
any person is nothing else but trespass on the State
land. Relevant paragraphs 244, 245 and 256 are
extracted below:
"244. Section 16 of the Act of
1894 provided that possession of land may
be taken by the State Government after
passing of an award and thereupon land vest
free from all encumbrances in the State
Government. Similar are the provisions made
in the case of urgency in Section 17(1). The
word "possession" has been used in the Act
of 1894, whereas in Section 24(2) of Act of
2013, the expression "physical possession" is
used. It is submitted that drawing of
panchnama for taking over the possession is
not enough when the actual physical
possession remained with the landowner and
Section 24(2) requires actual physical
possession to be taken, not the possession in
any other form. When the State has acquired
the land and award has been passed, land
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vests in the State Government free from all
encumbrances. The act of vesting of the land
in the State is with possession, any person
retaining the possession, thereafter, has to
be treated as trespasser and has no right to
possess the land which vests in the State
free from all encumbrances.
245. The question which arises whether
there is any difference between taking
possession under the Act of 1894 and the
expression "physical possession" used in
Section 24(2). As a matter of fact, what was
contemplated under the Act of 1894, by
taking the possession meant only physical
possession of the land. Taking over the
possession under the Act of 2013 always
amounted to taking over physical possession
of the land. When the State Government
acquires land and drawns up a memorandum
of taking possession, that amounts to taking
the physical possession of the land. On the
large chunk of property or otherwise which is
acquired, the Government is not supposed to
put some other person or the police force in
possession to retain it and start cultivating it
till the land is used by it for the purpose for
which it has been acquired. The Government
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is not supposed to start residing or to
physically occupy it once possession has
been taken by drawing the inquest
proceedings for obtaining possession thereof.
Thereafter, if any further retaining of land or
any re-entry is made on the land or someone
starts cultivation on the open land or starts
residing in the outhouse, etc., is deemed to
be the trespasser on land which in
possession of the State. The possession of
trespasser always inures for the benefit of
the real owner that is the State Government
in the case.
xxxx
256. Thus, it is apparent that vesting is
with possession and the statute has provided
under Sections 16 and 17 of the Act of
1894 that once possession is taken, absolute
vesting occurred. It is an indefeasible right
and vesting is with possession thereafter.
The vesting specified under Section 16, takes
place after various steps, such as,
notification under Section 4, declaration
under Section 6, notice under Section 9,
award under Section 11 and then possession.
The statutory provision of vesting of property
absolutely free from all encumbrances has to
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be accorded full effect. Not only the
possession vests in the State but all other
encumbrances are also removed forthwith.
The title of the landholder ceases and the
state becomes the absolute owner and in
possession of the property. Thereafter there
is no control of the landowner over the
property. He cannot have any animus to take
the property and to control it. Even if he has
retained the possession or otherwise
trespassed upon it after possession has been
taken by the State, he is a trespasser and
such possession of trespasser enures for his
benefit and on behalf of the owner.
(emphasis supplied)"
12. The Apex Court reiterated that once the
possession is taken pursuant to acquisition, vesting is
absolute and indefeasible.
13. Under the Karnataka Land Reforms Act, 1961
occupancy rights can be granted only if:
i. The land is agricultural.
ii. The applicant was a tenant.
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iii. The applicant was in possession as on
01.03.1974.
iv. The application was filed within time.
v. The existence of tenancy as on 01.03.1974, is a
jurisdictional fact.
vi. If the jurisdictional fact is absent, the Tribunal
lacks authority.
vii. When the land has vested pursuant to the
acquisition decades prior to 01.03.1974, the
burden lies heavily on the claimant to establish
subsisting agricultural tenancy.
14. In the present case, apart from the disputed
entries, no independent materials such as rent receipts,
lease agreement, or any documents are produced to
demonstrate lawful tenancies. Therefore, the Tribunal's
jurisdiction itself becomes doubtful, holding that the vesting
in 1954, seriously impairs the jurisdictional foundation of
the Tribunal proceedings.
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15. The State has produced the original records
including:
i. Register of Form No.7 application.
ii. Original RTC for 1963-1964.
iii. Proceedings in KLR-CR/27/2015-16.
iv. Order dated 30.11.1975.
16. These records were taken on record on
12.01.2026 and directed to be kept in sealed custody. On
examination of the Form No.7 register, this Court recorded
on 12.01.2026 as under:
"1. The State has produced the Original
Register of applications pertaining to filing of Form
No.7 before the Tribunal, Bagalkot.
2. This Court has perused the said original
registers. It is noticed that after the entry dated
28.08.1974, standing in the name of Yallappa
Shivaramappa Jannamatti, there is a subsequent
entry made in Black ink dated 26.12.1974, wherein
the name of Sushilavva Hanumant Madar
(respondent No.4) is recorded.
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3. A perusal of column No.5 of the said
register indicates that the name of the landlord
corresponding to Sushilavva Hanumant is not
mentioned. In column No.6, Survey Nos.80 and 81
are indicated. The extent of the land, under
cultivation for a period of 20 years, as well as the
reference to the final order, are also entered in 'Black
ink', while all the other entries are in '*Blue ink'.
4. The State has further produced the
original records pertaining to the proceedings in KLR-
CR/27/2015-2016, including the order dated
13.11.1975, the statement of the applicant and the
original Record of Rights. On examination of the
Record of Rights for the year 1963-1964, it is noticed
there is an over-scribbling in the column No.1
showing the name of "Sushilavva," and the mode of
cultivation has been overwritten as "iii".
5. The original Record of Rights and the
original proceedings produced by the State are taken
on record. The same shall be kept in safe custody in
a sealed cover until the disposal of the writ petition.
6. Heard Shri Pramodkumar Dubey, learned
Senior Counsel appearing on behalf of the petitioner.
7. To hear learned counsel appearing for
respondent No.4, list this matter on 21.01.2026 at
2:30 p.m, for further hearing."
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17. This Court on 12.01.2026 observed that :
i. Entry dated 26.12.1974 in the name of
respondent No.4 appears in "black ink".
ii. Surrounding entries are in "blue ink".
iii. Column No.5 landlord name is left blank.
iv. Reference to final order also is in "black ink".
18. Such insertion in different inks and omission of
landlord's name in statutory register is abnormal and
indicative of subsequent interpolation. On examination of
the RTC for 1963-64, overwriting is visible in column No.1,
inserting the name of respondent No.4 and mode of
cultivation is written as "iii" appears overwritten. The
revenue records are foundational public documents. Visible
overwriting in original record of rights affecting ownership
and tenancy cannot be lightly brushed aside. These
discrepancies are not minor clerical irregularities, they go to
the root of jurisdiction. The impugned order dated
30.11.1975 was passed on Sunday. Though not conclusive
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by itself, the absence of any supporting order sheet or
proceedings lends supports to the petitioner's allegation.
19. The petitioner alleges forged signatures on:
i. Form No.7 application.
ii. Tribunal's order.
iii. Certified copy application.
iv. Affidavit.
20. This Court defers from recording a definite
criminal finding of forgery in writ jurisdiction without
forensic examination. However, writ Courts are not
powerless when public records show visible tampering.
21. The Apex Court in the case of Ram Preeti
Yadav has held at paragraph Nos.13, 14, 15 and 26 as
under:
"13. Fraud is a conduct either by letter or
words, which induces the other person or authority
to take a definite determinative stand as a response
to the conduct of the former either by words or
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letter. Although negligence is not fraud but it can be
evidence on fraud.
14. In Lazarus Estates Ltd. v. Beasley the
Court of Appeal stated the law thus: (All ER p. 345
C-D)
"I cannot accede to this argument for a
moment. No court in this land will allow a person
to keep an advantage which he has obtained by
fraud. No judgment of a court, no order of a
minister, can be allowed to stand if it has been
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;"
15. In S.P.Chengalvaraya Naidu v. Jagannath
this Court stated that fraud avoids all judicial acts,
ecclesiastical or temporal.
26. Further, we find that there is no equity in
favour of Respondent 3, inasmuch as he knew that
his result had been withheld because of the
allegation of having used unfair means in the
examination. Suppressing this fact, he took
admission in BA and studied further."
(Emphasis supplied)
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22. The Apex Court in the case of Mritunjoy Das
has held at paragraph No.9 as under:
"9. On going through the records placed
before us, what we find is that the contesting
respondents herein inflated their marks in order to
obtain admission in the Primary Teacher's Training
Institute. Had the marks not been inflated in the
aforesaid manner, the contesting respondents would
not have got the admission in that particular
Institute as it is disclosed from the records.
Therefore, the admission sought for was through an
illegal means which is to be deprecated. The
conduct of the contesting respondents being such,
we cannot find fault with the course of action taken
by the appellant herein. It is not that the contesting
respondents were not given any opportunity of
hearing. They were given a show-cause notice and
were also given an opportunity of hearing which
opportunity they did not accept although they
submitted a reply to the show-cause notice. There
is, therefore, no violation of the principles of natural
justice in the present case. If a particular act is
fraudulent, any consequential order to such
fraudulent act or conduct is non est and void ab
initio and, therefore, we cannot find any fault with
the action of the appellant in dismissing the service
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of the contesting respondents. In this context we
refer to the decision of this Court in Ram Preeti
Yadav v. U.P. Board of High School and
Intermediate Education1 for the proposition that no
person should be allowed to keep an advantage
which he has obtained by fraud."
(emphasis supplied)
23. The Apex Court in the case of Vipin Kumar has
held at paragraph No.36 as under:
"36. In this regard, the learned Senior Counsel
for the appellant placed reliance on the judgment of
this Court in A.V. Papayya Sastry v. State of A.P.17,
by contending that when there has been a fraud
played by the first respondent herein, the same
would have to be considered by the High Court by
recalling the earlier orders passed by it and by
rehearing the parties and rendering a judgment in
accordance with law. The relevant observations
from the aforesaid judgments are paraphrased as
under: (SCC p. 222)
"Fraud may be defined as an act of deliberate
deception with the design of securing some unfair
or undeserved benefit by taking undue advantage
of another. In fraud one gains at the loss of
another. Even the most solemn proceedings stand
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vitiated if they are actuated by fraud. Fraud is thus
an extrinsic collateral act which vitiates all judicial
acts, whether in rem or in personam.
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.
The matter can be looked at from a different
angle as well. ... If this Court grants leave and
thereafter decides to dismiss the appeal, such an
order can be a judgment to which Article 141 of the
Constitution would apply and the doctrine of
merger also gets attracted. All orders passed by
the courts/authorities below, therefore, merge in
the judgment of this Court and after such
judgment, it is not open to any party to the
judgment to approach any court or authority to
review, recall or reconsider the order. ... However,
where a special leave petition is simply dismissed,
the doctrine of merger would not apply.
The above principle, however, is subject to
exception of fraud. Once it is established that the
order was obtained by a successful party by
practising or playing fraud, it is vitiated. Such order
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cannot be held legal, valid or in consonance with
law. It is non-existent and non-est and cannot be
allowed to stand. This is the fundamental principle
of law. The principle of "finality of litigation" cannot
be stretched to the extent of any absurdity that it
can be utilised as an engine of oppression by
dishonest and fraudulent litigants."
(emphasis supplied)
24. The Apex Court in the case of Mamata Mohanty
has held at paragraph No.37 as under:
"37. It is a settled legal proposition that if an
order is bad in its inception, it does not get
sanctified at a later stage. A subsequent
action/development cannot validate an action which
was not lawful at its inception, for the reason that
the illegality strikes at the root of the order. It
would be beyond the competence of any authority
to validate such an order. It would be ironic to
permit a person to rely upon a law, in violation of
which he has obtained the benefits. If an order at
the initial stage is bad in law, then all further
proceedings consequent thereto will be non est and
have to be necessarily set aside. A right in law
exists only and only when it has a lawful origin.
(Vide Upen Chandra Gogoi v. State of
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Assam, Mangal Prasad Tamoli v. Narvadeshwar
Mishra and Ritesh Tewari v. State of U.P.)"
(emphasis supplied)
25. The Apex Court in the case of Papayya Sastry
has held at paragraph Nos.21 to 27, 30 to 33, 39 and 46 as
under:
"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."
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.
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23. In the leading case of Lazarus Estates
Ltd. v. Beasley Lord Denning observed: (All ER p.
345 C)
"No judgment of a court, no order of a
Minister, can be allowed to stand if it has been
obtained by fraud."
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).
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26. Fraud may be defined as an act of
deliberate deception with the design of securing
some unfair or undeserved benefit by taking undue
advantage of another. In fraud one gains at the loss
of another. Even most solemn proceedings stand
vitiated if they are actuated by fraud. Fraud is thus
an extrinsic collateral act which vitiates all judicial
acts, whether in rem or in personam. The principle
of "finality of litigation" cannot be stretched to the
extent of an absurdity that it can be utilised as an
engine of oppression by dishonest and fraudulent
litigants.
27. In S.P.Chengalvaraya Naidu v. Jagannath
this Court had an occasion to consider the doctrine
of fraud and the effect thereof on the judgment
obtained by a party. In that case, one A by a
registered deed, relinquished all his rights in the suit
property in favour of C who sold the property to B.
Without disclosing that fact, A filed a suit for
possession against B and obtained preliminary
decree. During the pendency of an application for
final decree, B came to know about the fact of
release deed by A in favour of C. He, therefore,
contended that the decree was obtained by playing
fraud on the court and was a nullity. The trial court
upheld the contention and dismissed the application.
The High Court, however, set aside the order of the
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trial court, observing that "there is no legal duty
cast upon the plaintiff to come to court with a true
case and prove it by true evidence". B approached
this Court.
30. The Court concluded: (SCC p. 5, para 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."
31. In Indian Bank v. Satyam Fibres (India) (P)
Ltd. referring to Lazarus Estates and Smith v. East
Elloe Rural Distt. Council this Court stated: (SCC pp.
562-63, para 22)
"22. The judiciary in India also possesses
inherent power, specially under Section 151 CPC,
to recall its judgment or order if it is obtained by
fraud on court. In the case of fraud on a party to
the suit or proceedings, the court may direct the
affected party to file a separate suit for setting
aside the decree obtained by fraud. Inherent
powers are powers which are resident in all
courts, especially of superior jurisdiction. These
powers spring not from legislation but from the
nature and the constitution of the tribunals or
courts themselves so as to enable them to
maintain their dignity, secure obedience to its
process and rules, protect its officers from
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indignity and wrong and to punish unseemly
behaviour. This power is necessary for the
orderly administration of the court's business."
32. In United India Insurance Co.
Ltd. v. Rajendra Singh by practising fraud upon the
Insurance Company, the claimant obtained an
award of compensation from the Motor Accident
Claims Tribunal. On coming to know of fraud, the
Insurance Company applied for recalling of the
award. The Tribunal, however, dismissed the
petition on the ground that it had no power to
review its own award. The High Court confirmed the
order. The Company approached this Court.
33. Allowing the appeal and setting aside the
orders, this Court stated: (SCC pp. 587-88, paras
15-17)
"15. It is unrealistic to expect the appellant
Company to resist a claim at the first instance on
the basis of the fraud because the appellant
Company had at that stage no knowledge about
the fraud allegedly played by the claimants. If the
Insurance Company comes to know of any
dubious concoction having been made with the
sinister object of extracting a claim for
compensation, and if by that time the award was
already passed, it would not be possible for the
Company to file a statutory appeal against the
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award. Not only because of the bar of limitation to
file the appeal but the consideration of the appeal
even if the delay could be condoned, would be
limited to the issues formulated from the
pleadings made till then.
16. Therefore, we have no doubt that the
remedy to move for recalling the order on the
basis of the newly-discovered facts amounting to
fraud of high degree, cannot be foreclosed in such
a situation. No court or tribunal can be regarded
as powerless to recall its own order if it is
convinced that the order was wangled through
fraud or misrepresentation of such a dimension as
would affect the very basis of the claim.
17. The allegation made by the appellant
Insurance Company, that the claimants were not
involved in the accident which they described in
the claim petitions, cannot be brushed aside
without further probe into the matter, for the said
allegation has not been specifically denied by the
claimants when they were called upon to file
objections to the applications for recalling of the
awards. The claimants then confined their
resistance to the plea that the application for
recall is not legally maintainable. Therefore, we
strongly feel that the claim must be allowed to be
resisted, on the ground of fraud now alleged by
the Insurance Company. If we fail to afford to the
Insurance Company an opportunity to
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substantiate their contentions it might certainly
lead to a serious miscarriage of justice."
39. The above principle, however, is subject
to exception of fraud. Once it is established that the
order was obtained by a successful party by
practising or playing fraud, it is vitiated. Such order
cannot be held legal, valid or in consonance with
law. It is non-existent and non est and cannot be
allowed to stand. This is the fundamental principle
of law and needs no further elaboration. Therefore,
it has been said that a judgment, decree or order
obtained by fraud has to be treated as a nullity,
whether by the court of first instance or by the final
court. And it has to be treated as non est by every
court, superior or inferior.
46. Keeping in view totality of facts and
attending circumstances including serious
allegations of fraud said to have been committed by
the landowners in collusion with officers of the
respondent Port Trust and the Government, report
submitted by the Central Bureau of Investigation
(CBI), prima facie showing commission of fraud and
initiation of criminal proceedings, etc. if the High
Court was pleased to recall the earlier order by
issuing directions to the authorities to pass an
appropriate order afresh in accordance with law, it
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cannot be said that there is miscarriage of justice
which calls for interference in exercise of
discretionary and equitable jurisdiction of this Court.
We, therefore, hold that this is not a fit case which
calls for our intervention under Article 136 of the
Constitution. We, therefore, decline to do so."
(emphasis supplied)
26. In all the above referred judgments, the principle
enumerated is that once the fraud is shown, any advantage,
order, decree, judgment or given advantage acquired must
be deprived. Fraud vitiates all solemn acts whether in rem
or in personam and judgment, decree or order obtained by
fraud is to be treated non est and can be challenged in any
Court in any proceedings. The cumulative circumstances
show the only reasonable inference is that the proceedings
are tainted. This Court holds that the Tribunal proceedings
culminating in the order dated 30.11.1975 are vitiated by
fraud and manipulation of public records.
27. The respondent relies upon the
dismissal/acquittal in criminal proceedings. Criminal law
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requires proof beyond reasonable doubt and the civil case
proceeds on preponderance of probabilities. An acquittal
does not vitiate or does not validate a civil order or erase
civil consequences of fraud. Therefore, criminal proceedings
do not bar a writ relief. Learned Senior Counsel for the
respondent contends that the writ petition is belated.
However, if an order is void for lack of jurisdiction or
obtained by fraud it does not confer legality. In Sudama
Devi's case the Apex Court held that the relief cannot be
denied where manifest injustice is shown.
28. Cause of action effectively arose when mutation
proceedings were initiated and the petitioner became
aware. Fraud unravels finality and delay cannot sanctify a
nullity and accordingly, the points framed for consideration
are answered and for the foregoing discussion and findings,
this Court proceeds to pass the following:
ORDER
i. The writ petition is allowed.
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ii. The Order dated 30.11.1975, passed by the Land
Tribunal, Bagalkot granting occupancy rights in
favour of respondent No.4 is hereby declared
void ab initio and is quashed.
iii. The consequential Form No.10 dated 15.04.1983
issued pursuant to the said order also stands
quashed.
iv. The revenue entries, if any, made on basis of the
said order and Form No.10 shall stand annulled.
v. In view of the serious discrepancies noticed by
this Court in:
a. Form No.7.
b. Registered entry dated 26.12.1974.
c. The omission of landlord's name in Column
No.5.
d. The difference in inks in registered entries.
e. The overwriting in original records of rights for
the year 1963-1964.
vi. In view of the above, suspicious circumstances
surrounding the order, the State Government is
directed to constitute a High Level Enquiry
Committee headed by an Officer not below the
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rank of the Deputy Commissioner within four (4)
weeks from the date of receipt of the copy of this
order.
vii. The Enquiry Committee shall:
a. Examine the authenticity of the Form No.7
register entry.
b. Examine overwriting and alteration in the
RTC.
c. Verify the signature on Form No.7, application
and Tribunal Order.
d. Obtain forensic examination of documents
wherever necessary.
e. Examine the role of concerned officials, if any.
viii. Submit a report to the Registry of this Court
within four (4) months from the date of receipt
of copy of this order.
ix. Liberty is reserved to the State to initiate
appropriate criminal proceedings in accordance
with law, if forgery or fabrication is established
upon enquiry.
x. The original records produced before this Court
shall remain in sealed cover in the safe custody
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of the Registrar (Judicial) of this Court until
completion of the enquiry directed herein.
xi. The said original records shall not be opened,
tampered with, inspected or removed except
under the express orders of this Court.
xii. If any party of the proceedings or enquiry
committee constituted pursuant to this order
seeks copies of any documents forming part of
the sealed records for the purpose of enquiry or
any further proceedings, the Registrar (Judicial)
shall, upon proper application and identification,
furnish certified copies or photostat copies of
such documents.
xiii. Such copies shall be prepared only in the
presence of responsible officer deputed by the
Registrar (Judicial) to ensure preservation of
integrity of the original records. After preparation
of copies, the original records shall forthwith be
resealed and restored to safe custody.
xiv. The Enquiry Committee, upon completion of the
enquiry, submits its report to the Registry of this
Court within the time stipulated.
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xv. The Registry shall place the said report before
the appropriate Bench for further orders.
xvi. Upon consideration of the enquiry report and
further orders of this Court, the original records
shall be thereafter returned to the State under
proper acknowledgment.
All pending interlocutory applications, if any, do not
survive for consideration.
Sd/-
JUSTICE K.S.HEMALEKHA
AT
CT:VH
List No.: 1 Sl No.: 1
