Gujarat High Court
Karshandas B Makadia vs State Of Gujarat on 1 May, 2024
NEUTRAL CITATION
C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4881 of 2002
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2002
In R/SPECIAL CIVIL APPLICATION NO. 4881 of 2002
With
CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2004
In R/SPECIAL CIVIL APPLICATION NO. 4881 of 2002
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 4881 of 2002
With
CIVIL APPLICATION (FOR VACATING STAY) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 4881 of 2002
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 4881 of 2002
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 2 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 4881 of 2002
With
CIVIL APPLICATION (FOR MODIFICATION OF ORDER) NO. 2 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 4881 of 2002
With
CIVIL APPLICATION (FOR DIRECTION) NO. 3 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 4881 of 2002
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 4 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 4881 of 2002
With
CIVIL APPLICATION (FOR DIRECTION) NO. 4 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 4881 of 2002
With
CIVIL APPLICATION (FOR DIRECTION) NO. 5 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 4881 of 2002
With
R/SPECIAL CIVIL APPLICATION NO. 12559 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
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NEUTRAL CITATION
C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024
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2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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KARSHANDAS B MAKADIA & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
for the Petitioner(s) No. 1
ADVOCATE NAME DELETED for the Petitioner(s) No.
10,11,12,13,14,15,16,17,18,19,20,21,22,24,26,27,28,29,3,30,34,36,37,38,39,
4,40,41,42,44,45,46,47,5,6,7,8
MR RS SANJANWALA SENIOR ADVOCATE WITH MR SHRINIL A
SHAH(11760) for the Petitioner(s) No. 1
MR RS SANJANWALA(728) for the Petitioner(s) No. 48
APPEARANCE WITHDRAWN for the Respondent(s) No. 20
MR VISHAL C MEHTA(6152) for the Respondent(s) No. 55.1,55.2
MR VYAPAK N DESAI(2690) for the Respondent(s) No. 23,25,31,32,33
MS DIMPLE M PARIKH(7500) for the Respondent(s) No.
13,33,35,36,37,38,39,50,51,53
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. 18,22,28,41,55,8
DELETED for the Respondent(s) No. 12,21,35,47,52
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 SHALIN MEHTA, SENIOR ADVOCATE WITH MR MJ PARIKH(577) for
the Respondent(s) No. 13,36,37,38,39,50,51,53
MR PK SHUKLA(1056) for the Respondent(s) No. 9
MR PS CHAMPANERI(214) for the Respondent(s) No. 4,7
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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NEUTRAL CITATION
C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024
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Date : 01/05/2024
COMMON ORAL JUDGMENT
1. The facts involved in both these petitions are common, the arguments advanced are also common, with the consent of learned advocates for the parties, they are being heard and disposed of by this common judgment 2.1 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 27 th 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 30 th 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 dated 30 th June, 2000 Page 3 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined 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 Page 4 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined 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."
2.2 Special Civil Application No.4881 of 2002 is taken as the lead matter. The prayers prayed for in this 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 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 30 th June 2000 and 10th Page 5 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined July 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 Page 6 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined 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.
(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."
3. The brief facts leading to filing of this petition, as stated in the petition, are such that the lands of survey nos.73, 78 to 80, 81/1, 81/2, 83 and 84 situated in village Page 7 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined Nabhoi, Gandhinagar were sold to the respondent nos.8 and 9 herein by the original owners by way of registered sale deeds during 1968 to 1980; on 14.10.1985, vide order of the Mamlatdar, Gandhinagar under Section 84C of the Tenancy Act, the transaction was declared to be illegal and consequently, the lands were forfeited, however, the parties were given change to restore the lands to their original positions; the said order was set aside by the Deputy Collector, Gandhinagar on 8.8.1996; thereafter, the said lands were sold by the respondent nos.8 and 9 to Rajdhani Cooperative Housing Society Ltd., by executing six registered sale deeds in 1987 and two additional sale deeds in 1996; on 4.2.1998, Regular Civil Suit No.30 of 1998 was filed by respondent nos.10,11,12,18,26 and 34 (some of the original owners) claiming that they were in occupation of the lands and sought for permanent injunction to protect their possession against two defendants initially - one the society and two one Laxmiben; on 4.4.1998, an application at Exh.17 was filed by the plaintiffs to delete the society from the array of parties of the suit, which was allowed on the same day; another application at Exh.18 was given on the same day to implead respondent no.9 herein Vashram Bharwad as defendant no.3, which was allowed on 3.12.1998; on 30.6.2000, registered cancellation deeds were executed by the original owners unilaterally cancelling the registered sale deeds Page 8 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined executed by them in favour of the aggregators between 1968 and 1980 and another separate document was executed by original owners declaring that they had created permanent tenancy rights in favour of respondent no.55; on 10.7.2000, on 4.11.2000, another set of registered cancellation deeds were executed by aggregators-respondent nos.8 and 9 unilaterally cancelling the registered sale deeds executed by them in favour of the society and another separate document was executed by original owners declaring that they had created tenancy rights in favour of respondent no.55, the application Exh.33 was filed by third parties i.e. respondent nos.8 and 9 herein and the society seeking impleadment in the suit as defendants, on 27.3.2002, consent terms were signed and placed on record in the suit below Exh.51 recording that the plaintiffs' case is allowed and the plaintiffs had ownership rights in the lands and decree at Exh.52 was drawn on the same day based on the consent terms; hence, these petitions are filed with the prayers as stated above.
4. Notice was issued to respondent nos.1 to 9, 55 to 57 on 8.5.2002. Ad-interim relief was granted in terms of paragraphs 26(F), 26(C) and 26(E). Thereafter, Rule was issued and the ad-interim relief granted earlier was ordered to continue, which is continued till today. Page 9 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024
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5. Heard learned advocates for the parties. 5.1 Learned senior advocate Mr.Mehta has, at the outset, raised the preliminary objection regarding the maintainability of these petitions by raising following points:
(a) That the petition is filed on behalf of Rajdhani Co.op.Society Ltd., by its members, however, there is no authority, permission or any resolution to show that they have any right or authority to prosecute any legal proceedings;
(b) that the main dispute is between the society and its members and in such type of disputes, one has to approach statutory forum for redressal of their grievances;
(c) that the reliefs claimed by the petitioners is to quash and set aside the consent decree passed by the learned Civil Judge (J.D.), Gandhinagar and if any person is aggrieved by it, he has to prefer an appeal before the appropriate court or avail any other civil remedies; and the same cannot be challenged by way of this petition invoking writ jurisdiction under Articles 226 and 227 of the Constitution of India;
(d) that there is an alternative remedy available with the Page 10 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined petitioners under the provisions of Gujarat Cooperative Societies Act;
(e) that the registered cooperative housing society is a body corporate having a common seal and perpetual succession and can sue and be sued and that the respondent nos.4 to 7 are joined, though no final prayer is prayed for against them;
(f) that it is alleged that the said decree is obtained by fraud and collusion, then the court which passes a decree has jurisdiction to decide whether such decree has been obtained by fraud or collusion and the writ petition is not the remedy to quash and set aside the same;
(g) that the petitioners are not aware of their status and that they have no right, title or interest to file this petition;
that it is their duty to get declaration that they are duly owners of the lands as contended by them and unless such declaration is obtained by them, they have no right to obtain the relief of declaration of title in this writ jurisdiction;
(h) that the petitioners who are third parties to the consent decree have no locus standi to challenge the consent decree passed in the suit.
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NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined By making the aforesaid submissions and relying on the judgment in the case of Sakina Sultani Sunesara V/s Shia Imami Ismaili Momin reported in (2020) 1 GLR 586, the maintainability of the petition itself is questioned by learned advocates for the respondents.
5.2 Replying to the said submissions, learned senior advocate Mr.Sanjanwala for the petitioners submits that the issue of maintainability has to be raised at the time of admission of the petition and not at the time of final hearing. Once the petition is admitted, it means that there is no issue of maintainability which has to be considered. Therefore, the submissions regarding maintainability are at a belated stage and cannot be considered at the stage of final hearing. He further submitted that the consent decree challenged in this petition is patently perverse and there has been a gross and manifest failure of justice and the basic principles of natural justice have been flouted as a decree has been passed against the society without impleading or hearing the society through its official office bearers and therefore, this court, in its power of superintendence under Article 227, can examine all such orders passed by the subordinate Court.
5.3 He further submitted that as regards the judgment Page 12 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined relied on by the respondents in the case of Sakina Sultani Sunesara (supra), the judgment discusses the appropriate court provided by CPC, however, it does not hold that a comprehensive petition under Articles 226 and 227 of the Constitution of India would not be maintainable.
6. On merits, learned senior advocate Mr.Sanjanwala for the petitioners has submitted that in the Regular Civil Suit No.30 of 1998, the application below Exh.33 was filed by the respondent nos.8 and 9 herein and the society, however, the society did not actually file the application, it was signed by the respondent no.9 impersonating to be chairman of the society, that the respondent no.9 was never a member or office bearer of the society and no order is passed below Exh.33 till today allowing the society to join as party in the suit; that the consent terms are shown to be signed by the society as well and respondent no.9 has signed these consent terms claiming to be office bearer of the society, however, respondent no.9 was never an office bearer of the society; that the consent decree is a collusive fraud played on the court; that the society is the current owner of the lands based on registered sale deeds and therefore the decree regarding the lands could not have been passed in absence of the society through its authorized office bearers; that even assuming that the society had been joined as defendant, the Page 13 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined joinder is illegal as the society was represented by respondent no.9 who was never chairman or office bearer of the society and had no authority to sign on behalf of the society; that fraud vitiates everything; that a decree obtained by playing fraud on the court is a nullity in the eyes of law and can be challenged in any court at any time in appeal, revision, writ or even in collateral proceedings and once fraud is established, it can be challenged by filing this writ and therefore, no issue of maintainability survives. 6.1 With regard to the unilateral cancellation deeds, learned senior advocate Mr.Sanjanwala for the petitioners has submitted that a document of cancellation of sale deed with the purchaser being a signatory to the document, is a non-est and void document and such documents cannot be registered by the sub-registrar; that cancellation deed is a reconveyance by the purchaser to the vendor which requires both parties to sign the agreement; that as per Section 7 of the Transfer of Property Act, every person competent to contract and authorized to dispose of transferable property would be competent to transfer such property and since the original owners were not owners of the land when the unilateral cancellation deeds were executed, they were not competent to contract as per Section 7; that as per Rule 45 of the Gujarat Registration Rules, 1970, the sub-registrar is empowered to Page 14 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined examine whether the document is being presented by the appropriate persons if not, can refuse registration, in the present case, the document was not present on behalf of the appropriate persons, the sub-registrar was obligated not to register the document; that the statement of the respondents that the unilateral cancellation deeds were executed in order to comply with order of forfeiture dated 14.10.1985 is factually incorrect and misleading, as the said order was set aside by the Deputy Collector vide order dated 8.8.1986 and therefore, on the dates of unilateral cancellation deeds, the order dated 14.10.1985 was not in operation and required no compliance.
6.2 Learned senior advocate Mr.Sanjanwala for the petitioners had submitted that the petitioners are the members of the society; that the petition bearing no.SCA No.12559 of 2002 is filed by the society for the very same prayers as in SCA No.4881 of 2002; that the civil application for impleading the society as party in the SCA is filed and if allowed, the society will be a party in this petition too; that with respect to the collusive fraud played by the respondents, an FIR bearing no.147 of 2004 was registered under Sections 406, 409, 420, 465, 471, 34, 109 and 114 and 120 of IPC and after investigation, chargesheet was filed and criminal case is also registered and charge is also framed. Page 15 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024
NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined 6.3 With the above submissions, learned senior advocate Mr.Sanjanwala for the petitioners submitted that these petitions be allowed and the consent decree be set aside.
6.4 In support of his submissions, the following citations are relied upon:
1. Commissioner of Customs, Kandla V/s Essar Oil Limited reported in (2004)11 SCC 364.
2. Thota Ganga Laxmi V/s Government of Andhra Pradesh reported in (2010)15 SCC 207 which was subsequently referred to the full bench, and it is held in (2016) 10 SCC 767 holding that the judgment is applied in its own facts.
3. Latif Estate Line India Ltd. V/s Hadeeja Ammal & Ors., reported in AIR 2011 Mad 66.
4. Noble John V/s State of Kerala reported in 2010 SCC Online Ker 2561.
5. S.P.Chengalvarayu Naidu V/s Jagannath & Ors., reported in (1994) 1 SCC 1.
6. United India Insurance Co.Ltd. V/s Rajendra Singh & Ors., reported in (2000) 3 SCC 581.
7. A.V.Papayya Sastry & ors., V/s Government of A.P. and others reported in (2007)4 SCC 221.Page 16 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024
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8. Chandrasinh Khumansinh Bakola V/s Ibrahim Suleman Narot reported in 2023 GUJHC:40927-DB.
9. The State of Uttar Pradesh V/s Mohammed Nooh reported in AIR 1958 SC 86.
10. Tata Chemicals Ltd. V/s Adityana Nagar Panchayat reported in (2001) 2 GLR 1538.
11. Costa & Co.Pvt.Ltd. V/s Sales Tax Officer, Margao & ors., reported in 2002(1) MhLJ 288.
12. Ganga Retreat and Towers ltd. & ors. V/s State of Rajasthan reported in (2003)12 SCC 91.
13. Durga Enterprises (P) Ltd. & anr. V/s Principal Secretary,Govt. Of U.P. & ors.reported in (2004) 13 SCC 665.
14. Karmajyot Co-operative Hsg.Society Ltd. V/s State of Gujarat & ors., reported in AIR 2023 Guj.183.
15. Shlini Shyam Shetty V/s Rajendra Shankar Patil reported in (2010) 8 SCC 329.
16. Sakina Sultani Sunesara V/s Shia Imami Ismaili Momin reported in (2020)1 GLR 586.
7. Per contra, learned senior advocate Mr.Mehta for the respondents has submitted that there should be a prima facie evidence of fraud or misrepresentation or collusion in obtaining the compromise deed by the civil court, Gandhinagar which is not produced and if such allegations are made by the petitioner, the petition involved complicated Page 17 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined questions of facts requiring voluminous evidence, third party or parties should be left to seek remedy in a civil court rather than preferring extraordinary remedy under Articles 226 and 227 of the Constitution of India; there are debatable questions of facts which cannot be adjudicated in writ petition; that suits being RCS No.169 of 2019 and RCS No.184 of 2023 are already instituted by respondent no.9 against the society and original land owner, which are pending before the competent civil court; that there is also a criminal case pending against the petitioner-society before the Chief Judicial Magistrate, Gandhinagar, which is filed by the Special Auditor, Registrar of the Gujarat cooperative society which is pending for adjudication; that the material facts are suppressed in these petitions.
7.1 Learned senior advocate Mr.Mehta further submitted that the original position of the parties in civil proceeding before RCS No.30 of 1998 is not staged in this petition; that in view of Sections 53 and 53A of Transfer of Property Act is required to be considered to determine the question of facts in these petitions; that there is no written or oral contract between petitioners and respondent no.9. 7.2 Learned senior advocate Mr.Mehta further submitted that the respondents nos.10,12,18,26 and 34-original Page 18 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined plaintiffs are the owners of the land bearing survey nos.79 and 81 paiki and initially, along with other owners, they have transferred the lands from survey nos.84 and 79 paiki part in favour of respondent nos.8 and 9-Sangrambhai Ghelabhai and Vashrambhai Sangrambhai between 1970 and 1980 by different sale deeds and the proceedings under Section 84(C) of the Act was initiated by Mamlatdar and ALT, Gandhinagar, who vide order dated 14.10.1985, was pleased to declare that the transactions to transfer between the parties is illegal and also directed the parties to register the land on its original conditions and since then, they are cultivating the lands; that the respondent nos.8 and 9 do not have any right to transfer the lands to any of the person or to the society as they were not the owners of the land at all and therefore the transaction is illegal; that the respondent nos.8 and 9 came to know about the proceedings under Section 84(C) of the Bombay Agricultural and Land Acquisition Act and that the earlier transaction of purchasing the land from original owners was declared invalid by the competent authority and therefore to substantiate the action taken or order passed by the authority, the respondent nos.8 and 9 were constrained to cancel the sale deed/transaction made in favour of the society; that the respondent no.55 was indicated in the disputed land since long by the erstwhile owners as a permanent tenant and initially, there was an Page 19 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined oral agreement but subsequently, on 30.6.2000, a written agreement was executed for extension of tenancy right. 7.3 Learned senior advocate further submitted that in fact, the society has not been properly functioning and managed since 1981 and therefore, Special Auditor, Gandhinagar had issued notice to the society to produce audited accounts of the said society, that legal action has also been initiated against the society for not properly functioning; that the District Registrar had issued notice to the said society to appoint official liquidator in the said society; that after hearing the parties, the order was passed to appoint official liquidator in the society, the said order was carried in appeal, which was dismissed; that there is no material placed by the petitioners to constitute the allegations or substantiating such allegations against respondents, more particularly, respondent no.9; that the NA permission granted in favour of the society was cancelled by order dated 12.2.1998, which was carried in appeal and the Deputy Secretary (Appeals) Revenue Department, Gandhinagar was rejected and therefore the said order was carried in petition before this Court, wherein this Court has directed to file fresh application for obtaining NA permission with fresh plan; that the respondent no.9 filed application to convert the land from agricultural zone to residential zone; that the said Page 20 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined society had also made application for NA permission to the District Collector, Gandhinagar, however as the society was falling under agricultural zone, the application was closed; thereafter the said society approached this Court by way of petition wherein the concerned authorities were directed to decide the representation and application within a stipulated time; thereafter, after verifying the record, when it was found that the said land was falling in the agricultural zone and civil suit is pending for adjudication, the application was closed. It is further submitted that the society has not audited society accounts from 1981 to 2000 for which the criminal complaint is filed which is pending adjudication. 7.4 With the above submissions, learned senior advocate for the respondents has prayed to dismiss these petitions as it is not maintainable and that there is no fraud or collusion as alleged in the proceedings. 7.5. Learned advocates Mr.Shukla and Mr.Champaneri appearing for some of the respondents have also submitted on the same line as that of learned senior advocate Mr.Mehta and submitted that these petitions are required to be dismissed.
7.6 Learned advocates for the respondents have relied Page 21 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined on the following citations:
1. Triloki nath Singh V/s Anirudh (dead) through legal representatives and others reported in 2020(6) Supreme Court Cases 629.
2. Mahesh s/o Murigeppa V/s Ishwar s/o basappa & others decided on 4.3.2024 by the Hon'ble High Court of Karnataka at Dharwad bench.
3. Satya Pal Anand V/s State of Madhya Pradesh & others reported in (2016) 10 SCC 767.
4. State of Bombay V/s Purushottam Jog Naik reported in AIR 1952 SCC 317.
5. Late Chhotabhai Nathabhai Patel V/s Dilipbhai Shantilal Thanki reproted in 2024(1) GLR page 114.
6. Patel Vinodbhai Khodidas & Others V/s Patel Pravinbhai Kacharabhai reported in 2021(3) GLR 2601.
7. Bhikhubhai Somabhai Patel V/s State of Gujarat and others, reported in 2001(1) GLH 538.
8. Batchu Subba Laxmi & Others V/s Sannidhi Srinivasulu & Others in W.P.No.10318 of 2009 decided on 8.12.2009.
9. Chandpasha S/o Amirsab Ansari V/s Ejaz s/o Amirsab Ansari being writ petition no.7595 of 2020 decided on 22.1.2024.
10. Radhey Shyam & Anr. V/s Chhabi Nath & ors, decided on 26.2.2015 in Civil Appeal No.2548 of 2009.Page 22 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024
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11. State of U.P. & Anr. V/s U.P.Rajya Khanji Vikas Nigam S.S. & Ors. Decided on 2.5.2008 in Civil Appeal No.3202 of 2008.
12. Shankarbhai Keshavlal Patel V/s Prerak Rakeshbhai Desai decided on 9.12.2022 in Civil Application No.1826 of 2021 in First Appeal No.7674 of 2021, which was upheld by the Hon'ble Supreme Court in Special Leave to Appeal No.2757 of 2023.
8. I have considered the submissions made by learned advocates for the parties and considered the material placed on record including the original record of the learned trial court.
9. The challenge in these petitions is the consent decree passed in Regular Civil Suit No.30 of 1998. On perusal of the original record of the said suit, it transpires that the society was initially impleaded as party defendant no.1 in the suit, thereafter permission was sought for deletion of the defendant no.1 and to implead defendant no.3 vide Exh.18, which was allowed; thereafter, again application at Exh.33 was given to implead respondent nos.8 and 9 herein- Vashrambhai and Sangrambhai and also the society through its administrator Vashrambhai; notice was issued on the said application, however, no order seems to have been passed on Page 23 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined the same; again application Exh.34 was preferred by Vashrambhai to add his name in the suit as he was deleted; no order seems to have been passed on the said application; the compromise deed dated 27.3.2002 bears the title of the society as defendant; it is signed by Vashrambhai in personal capacity as well as the administrator of the society. Connecting these dots in the suit, they do not seem to connect, there are no answers to the questions as to why defendant no.1 was deleted, why defendant no.3 was added, how the society and Vashrambhai and Sangrambhai became the parties to the suit, why the name of the society is shown in the cause title when it was deleted, why did they file the compromise pursis when they have already sold the lands to the society and they are no longer owners of the said lands. Be that as it may.
10. The original land owners sold the lands in question to respondent nos.8 and 9-Sangrambhai and Vashrambhai (aggregators) by registered sale deeds between 1968 to 1980; the Mamlatdar and ALT, Gandhinagar passed order dated 14.10.1985 under the Tenancy Act declaring the transactions to be illegal and therefore forfeited the lands, however, the parties were given chance to restore the lands to their original position; the said order was carried in revision by the respondent nos.8 and 9, in which the order of Page 24 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined the Mamlatdar and ALT was set aside by the Deputy Collector vide order dated 8.8.1996. The aggregators sold the said lands to the society-petitioner herein in 1987 i.e. during the pendency of the revision and when the order of the Mamlatdar and ALT was in existence. How can the aggregators sell the lands when the Mamlatdar and ALT has held the transaction illegal and the decision of the revision was still awaiting? Be that as it may.
11. The Regular Civil Suit No.30 of 1998 was filed by the original owners for permanent injunction to protect their possession. They sold the lands to the aggregators during 1968 to 1980; the said transactions were held illegal vide order dated 14.10.1985 i.e. the original owners were restored as owners; the said order was set aside vide order dated 8.8.1996 i.e. the aggregators came into ownership as per the sale transaction between the owners and the aggregators; if that is so, why did the original owners file the suit for protection of their possession? Be that as it may.
12. The say of the aggregators in their affidavit-in- reply that the cancellation deeds were executed by them for cancelling the registered sale deeds executed by them in favour of the society on the basis that they came to know about the earlier transaction of purchasing the land from Page 25 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined original owners was declared invalid by the competent authority and therefore, to substantiate the action taken or order passed by the competent authority, they were constrained to cancel the sale deed/transaction made in favour of the society, cannot be accepted for the reason that the revision application was filed by themselves against the order of the Mamlatdar and ALT, wherein the revision application was allowed and the order of the Mamlatdar and ALT was set aside. It cannot be said that when they themselves are the applicants therein, they were not in knowledge of the said order passed in the year 1996, that too, which was in their favour. So, what prompted them to suddenly execute the cancellation deeds in the year 2000 is a question? Be that as it may.
13. It will not be out of way to refer to the other proceedings filed before this Court during the pendency of these petitions. Special Civil Application No.7612 of 2013 was filed by one of the aggregators-Vashrambhai for granting non- agricultural permission to the respondent no.3-society, which was dismissed vide order dated 26.4.2013 that when the petitioner-Vashrambhai has already sold the subject lands to the society, the petitioner-Vashrambhai would no longer have any right, title or interest in the subject lands so as to be concerned with whether or not any N.A. permission is Page 26 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined granted in respect of the subject lands and as the petitioner has divested himself of all interest in the lands in question, he is clearly not entitled to be heard on the question of grant of N.A.permission to the respondent no.3-society. The outcome is that Vashrambhai-respondent no.9 herein is not the owner of any of the lands in question. Be that as it may.
14. Special Civil Application No.464 of 2004 came to be filed by the original owners to direct the concerned authorities to give effect to the order dated 14.10.1985 passed by the Mamlatdar and ALT, which was allowed vide order dated 16.3.2004 directing the concerned authorities to make the necessary entry in the revenue record with a stipulated time limit. Miscellaneous Civil Application No.482 of 2004 came to be filed for recalling the said order on the ground that the said petition was filed by misrepresenting and suppression of facts. The matter was heard and ultimately, vide order dated 15.11.2016, the order passed in Special Civil Application No.464 of 2004 was recalled and the petition was restored and was ordered to be heard together along with these petitions on hand.
15. All the three petitions appeared on board on 1.2.2023, however, as there was no representation, they were Page 27 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined dismissed for non-prosecution. Thereafter, restoration applications were filed in the captioned petitions, which were allowed and the petitions were restored.
16. The society was granted N.A. permission in respect to the lands by order dated 4.7.1981, which was extended till 1997 vide order dated 13.7.1981. However, as the society did not start any construction, the N.A. permission was cancelled vide order dated 12.2.1998, however, observed that if the society prepares a fresh plan and approaches the authority, the same shall be considered; revision application was filed against the said order which was rejected vide order 26.6.2000 and the petition being Special Civil Application No.13571 of 2000 came to be filed, which was allowed vide order dated 24.9.2001 and the society was directed to file necessary application with fresh plan before the authority. The said society approached the concerned authority for N.A. permission, however, the District Collector, Gandhinagar found that the said society was falling under Agricultural zone and therefore, the application was filed. Special Civil Application No.12551 of 2012 was filed before this Court, which was allowed vide order dated 21.12.2012 by directing the competent authorities to consider the application and representation filed by the society. The District Collector, Gandhinagar, verified the record and found that the said Page 28 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined society was falling in agricultural zone and civil suit is pending for adjudication and therefore the application was closed on 24.4.2013. The question is that when there is no non-agricultural use permission for the lands in question, then on what basis, the petitioners are members of the society? Be that as it may.
17. The above points go to show the conduct of the parties and that there are many disputed questions of fact which can be adjudicated by evidence only.
18. The primary objection raised by the respondents is the maintainability of this petition against the consent decree by the learned trial Court. The relevant provisions are as under:
"96. Appeal from original decree.--(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction the Court authorized to hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with the consent of parties.Page 29 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024
NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined [(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject- matter of the original suit does not exceed 2 [ten thousand rupees.]
3. Compromise of suit.--Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise 1 [in writing and signed by the parties] or where the defendant satisfied the plaintiff in respect to the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith 2 [so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit:] [Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but not adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.] [Explanation.-- An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not he deemed to be lawful within the meaning of this rule.] Page 30 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined [3A. Bar to suit.--No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.
19. The first prayer in this petition is made under Article 227 of the Constitution of India. Article 227 confers a supervisory jurisdiction on the High Court for the purpose of ascertaining whether the subordinate court or tribunal, in giving such judgment or order, has acted within its authority and according to law. In Triloki Nath Singh vs Anirudh Singh (D) Thr. Lrs (2020), it was held that the suit for a declaration which was filed before the civil court was not maintainable in the light of Order 23 Rule 3A of CPC. The bar also applies to strangers to compromise proceedings. Not being a party to the compromise decree will confer the party cause of action and the right to invalidate the compromise decree passed by the High Court. In the case on hand, the decree being a consent decree, the remedy available to the petitioners is to file an application where such a compromise was recorded. The non-action of the petitioners to file an application before the same court, if the consent decree, according to them is obtained by fraud, smells something fishy. Instead of filing application before the same court, the petitioners approached this Court by way of these petitions. The conduct of all the parties smacks a lot and coming to any conclusion at this stage without adducement of any evidence in the trial may Page 31 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined lead to injustice to the genuine party.
20. An argument is advanced by learned advocate for the petitioners that the issue of maintainability is to be entertained only at the time of admission and when the petitions are admitted, then the issue of maintainability would no longer survive. Even if this submission is accepted, without entering into the maintainability issue, this Court is of the opinion that this Court cannot decide the issue of fraud involved at the time of passing of the consent decree by the concerned court as there is no evidence, there is no oral or documentary evidence produced before the court below and also there are disputed questions of facts as stated hereinabove. This Court is not a Court of fact but it is a Court of law and this Court cannot go into the genuineness of the facts unless there is evidence led and the genuineness of the evidence is proved and the same can be done by the learned trial Court only.
21. There are many disputed questions of fact as noted hereinabove, which can be answered by a full-fledged trial only. In absence of the same, this Court is handicapped to answer the above questions and checking the genuineness of the compromise decree as the fraud is alleged by the petitioners herein.
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22. As regards the judgments relied on by learned advocates for the parties, there cannot be any dispute to the ratio laid down in the said judgments. The judgments which are most applicable in the facts of the present case are referred to hereinunder.
23. In the recent judgment of the Hon'ble Supreme Court in Civil Appeal No.1155 of 2021 in the case of Radha Krishan Industries v. State of H.P. , (2021) 6 SCC 771, it is held in paragraphs 24 to 28 as under:
"C.1. Maintainability of the writ petition before the High Court
24. The High Court has dealt with the maintainability of the petition under Article 226 of the Constitution. Relying on the decision of this Court in CCT v. Glaxo Smith Kline Consumer Health Care Ltd. [CCT v. Glaxo Smith Kline Consumer Health Care Ltd., (2020) 19 SCC 681 : 2020 SCC OnLine SC 440] , the High Court noted that although it can entertain a petition under Article 226 of the Constitution, it must not do so when the aggrieved person has an effective alternate remedy available in law. However, certain exceptions to this "rule of alternate remedy" include where, the statutory authority has not acted in accordance with the provisions of the law or acted in defiance of the Page 33 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined fundamental principles of judicial procedure; or has resorted to invoke provisions, which are repealed; or where an order has been passed in violation of the principles of natural justice. Applying this formulation, the High Court noted that the appellant has an alternate remedy available under the GST Act and thus, the petition was not maintainable.
25. In this background, it becomes necessary for this Court, to dwell on the "rule of alternate remedy" and its judicial exposition. In Whirlpool Corpn. v. Registrar of Trade Marks [Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1] , a two-Judge Bench of this Court after reviewing the case law on this point, noted : (SCC pp. 9-10, paras 14-
15) "14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose".
15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not Page 34 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field."
26. Following the dictum of this Court in Whirlpool [Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1] , in Harbanslal Sahnia v. Indian Oil Corpn. Ltd. [Harbanslal Sahnia v. Indian Oil Corpn. Ltd., (2003) 2 SCC 107] , this Court noted that : (Harbanslal Sahnia case [Harbanslal Sahnia v. Indian Oil Corpn. Ltd., (2003) 2 SCC 107] , SCC p. 110, para 7) "7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed is concerned, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative Page 35 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies : (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. (See Whirlpool Corpn.v. Registrar of Trade Marks [Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1] .) The present case attracts applicability of the first two contingencies. Moreover, as noted, the appellants' dealership, which is their bread and butter, came to be terminated for an irrelevant and non-existent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings."
27. The principles of law which emerge are that:
27.1. The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well.
27.2. The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person.
27.3. Exceptions to the rule of alternate remedy arise where : (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of Page 36 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged.
27.4. An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law.
27.5. When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion.
27.6. In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.
28. These principles have been consistently upheld by this Court in Chand Ratan v. Durga Prasad [Chand Ratan v.
Durga Prasad, (2003) 5 SCC 399] , Babubhai Muljibhai Patel v. Nandlal Khodidas Barot [Babubhai Muljibhai Patel Page 37 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined v. Nandlal Khodidas Barot, (1974) 2 SCC 706] and Rajasthan SEB v. Union of India [Rajasthan SEB v. Union of India, (2008) 5 SCC 632] among other decisions."
24. In the judgment of the Hon'ble Apex Court in the case of State of U.P. and Another Vs Ehsan and Another reported in 2023 SCC OnLine SC 1331, the Hon'ble Apex Court has specifically held that when there are serious disputes about facts of the case, the powers under Article 226 should not be exercised even in the case where matter is admitted and pleadings are produced on the record. It is held in paragraph 28 as under:
"28.We are conscious of the law that existence of an alternative remedy is not an absolute bar on exercise of writ jurisdiction. More so, when a writ petition has been entertained, parties have exchanged their pleadings/affidavits and the matter has remained pending for long. In such a situation there must be a sincere effort to decide the matter on merits and not relegate the writ petitioner to the alternative remedy, unless there are compelling reasons for doing so. One such compelling reason may arise where there is a serious dispute between the parties on a question of fact and materials/evidence(s) available on record are insufficient/inconclusive to enable the Court to come to a definite conclusion."Page 38 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024
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25. In the judgment of the Hon'ble Apex Court in the case of Hari Prakash Shukla and Others Vs. State of Uttar Pradesh and Another reported in 2023 SCC OnLine SC 773, it is held in paragraph 26 to 30 as under:
"26. This Court, in a catena of judgments has held that the High Court, while exercising its inherent powers under 226 of the Constitution of India, cannot re-appreciate evidence and arrival of finding of facts, unless the authority which passed the original order did so in excess of its jurisdiction, or if the findings were patently perverse.
27. In the case of BK Muniraju v. State Of Karnataka, this Court, while expounding on the powers of the High Court under Article 226 of the Constitution of India, held that the same cannot be used to re-appreciate evidence unless an error of fact appraised by the lower court is manifest and such an error has caused grave injustice.
28. Further, in the case of Krishnanand v. Director of Consolidation, this Court, in a similar fact circumstance wherein concurrent findings of the lower courts were dismissed by the High Court while exercising its writ jurisdiction, held that re-appreciation of evidence under Article 226 can only be done in cases where the original order by the lower court was passed in excess of its Page 39 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined jurisdiction or if the findings of the lower courts were patently perverse.
29. It is our opinion that as far as the present case is concerned, the concurrent findings of the lower courts are neither perverse, nor the said courts have over stepped their jurisdiction. In such a scenario, wherein neither of the conditions were satisfied, the High Court could not have re- appreciated the evidence in writ jurisdiction and come to a different conclusion.
30. It must be noted that the introduction and admission of evidence at the trial stage goes through a rigorous process, wherein each piece of evidence introduced is subject to very strict scrutiny, and every party is given the opportunity to test the veracity of the said evidence through procedure established by law. The legitimacy of the evidence, at every stage, is questioned, and the opposing party is given the right to question the said evidence by placing their doubts regarding the same in court. Such a mechanism in law of going through evidence, is not available to the High Court while exercising its powers under writ jurisdiction, and therefore, evidence which has been confirmed by the lower courts, must only be reversed by the High Courts in the rarest of rare cases."
26. In the case of Late Chhotabhai Nathabhai Patel & Ors. (supra) reported in 2024(1) GLR 565, it is held by this Page 40 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined Court in paragraphs 5.9 to 6 as under:
"5.9 Even if the parties have submitted settlement, there might be cases where the settlement is disputed and the contentions in that regard are raised. The Court accepting the consent terms thereafter, would be passing the decree upon contest. The decree upon contest would have the element of application of mind and adjudication. Decree after such process upon compromise passed, that is upon contest, would become amenable to a separate appeal. However, in the present case, the compromise was arrived at between the parties and pursuant to terms submitted to the Court, the decree was passed as agreement between the parties was shown. It was not open for them to prefer separate appeal simpliciter where the parties have submitted the compromise and requested the Court to pass the decree. The aggrieved party has to approach the same Court who has passed the compromise decree.
5.9.1. There is a distinction between "decree of the Court"
and "decree passed upon consent of the parties" or the "consent decree" as called. When the Court passes a decree, it is done after application of mind. Such decree is passed after adjudicatory process is undergone. When the consent terms submitted by the parties are translated into decree, though it becomes decree of the Court, it is without any adjudicatory process. The Court would accept the settlement between the parties and record in terms of the decree, the Page 41 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined consent terms arrived at between the parties and put the seal of the Court upon it. In the consent decree, element of adjudication is absent.
5.9.2. When the adjudicatory process is not undergone by the Court, and the decree is passed, it becomes in essence without adjudication, but something which is agreed between the parties. In such cases, where at subsequent stage, if such decree is to be challenged on the ground of fraud, collusion, misrepresentation, etc., or by contending that the decree ought not to have been passed, the party so contending and challenging the consent decree shall have to approach the same Court which had passed the decree. 5.9.3. A conjoint reading of the provisions of Sec. 96(3) read with Order 23, Rules 3 and 3A read with Order 43, Rule 1A(2) of the C.P.C., would show that neither a separate suit would lie nor the appeal would be maintainable against such decree. Any person who challenges the compromise or that the consent decree is not acceptable, has to knock the doors of the same Court to get the consent decree set aside by establishing his plea on evidence. This could be done by proving the alleged facts regarding fraud, etc., by leading evidence. The law is that in such category of cases, separate suit would not lie, nor an independent appeal would be maintainable.
5.9.4. The question whether the person aggrieved by such consent decree is party to the suit or a stranger is Page 42 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined eminently seen in Triloki Nath Singh (supra). The appellant- plaintiff was a third party stranger who instituted separate suit challenging the compromise arrived at by the other parties in the Second Appeal, where the Court held that the said stranger had to approach the very High Court which had recorded the compromise in the Second Appeal. 5.9.5. Therefore, in cases where the agreed terms of settlement or consent is translated into the decree of the Court, reversal thereof has to be by the same Court upon party pleading against the consent decree and establishing its case before the same Court, the plea that such decree was unlawful, fraudulent or actuated by misrepresentation.
6. In the present case, as the applicants want to contend that the decree passed by the Court below upon tendering of compromise between the parties was bad as the same was passed upon fraudulent acts of the other parties, the applicants will have to approach the same Court, which could set aside the consent decree upon evidential merits, and by proving the case about fraud, misrepresentation etc."
27. In the case of Sakina Sultanali Sunesara (Momin) and Others Vs Shia Imami Ismaili Momin Jamat Samaj and others reported in (2019) 3 GLH 256, it is held in paragraphs 40 and 41 as under:
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NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined "40. Similarly, the observations made by the Division Bench in case of Kantibhai Viththalbhai (supra) also do not connote correct position of law, when it held that the Appeal would not be maintainable against the consent decree in view of the bar contained in Section 96(3) of the CPC. It may be noted that in the said case, the appellant was the aggrieved third party, who was not the party to the suit or party to the compromise on the basis of which the decree under challenge was passed. Such a decree qua the appellant-third party could not be construed as the "consent decree" so as to attract the bar under Section 96(3) of the CPC. If the right of third party is vitally and adversely affected by the decree passed by the Court on the basis of the compromise arrived at between the parties to the suit, under Order XXIII, Rule 3, he can certainly file an appeal with the leave of the appellate Court under Section 96(1) of the CPC. Such a decree being not a "consent decree" so far as third party appellant was concerned, the bar under Section 96(3) could not be made applicable to him. If the third party appellant is able to convince the appellate Court that his right is substantially and adversely affected by the passing of such compromise decree, and the leave to appeal is granted by the appellate Court, his appeal against such decree based on the compromise, would be maintainable under Section 96(1) read with Order XLI of the CPC. The second question stands answered accordingly. The upshot of the above may be summed up as under:--Page 44 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024
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(i) After the deletion of Clause (m) of Rule 1 of Order XLIII, by the Amendment Act 104 of 1976, no Appeal from Order against the order passed under Rule 3 of Order XXIII recording or refusing to record an agreement, compromise or satisfaction would lie under Rule 1 of Order XLIII of the CPC. Rule 1-A of Order XLIII does not provide for any remedy to file an appeal either against any order or against any decree.
(ii) It is only in an appeal filed under Section 96(1) read with Order XLI of the CPC, against the decree passed in the suit after recording of compromise or refusing to record compromise, the appellant can contest such decree on the ground that the compromise should or should not have been recorded, in view of Rule 1-A(2) of Order XLIII.
(iii) No appeal would be maintainable from a decree passed by the Court with the consent of the parties i.e. on the basis of the compromise arrived at between the parties in the suit under Rule 3 of Order XXIII, in view of the bar contained in Section 96(3) of the CPC.
(iv) No suit shall lie to set aside a decree passed under Rule 3 of Order XXIII on the ground that the compromise on which the decree is based was not lawful in view of the bar contained in Rule 3-A of Order XXIII.Page 45 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024
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(v) If the aggrieved party was the party to the suit, the only remedy available to him against the decree passed by the Court on the basis of compromise between the parties (consent decree), would be to file an application under the proviso to Rule 3 of Order XXIII, disputing such compromise. The Court which passed the compromise decree has to decide the said dispute or question raised by the party.
(vi) When there is a dispute raised by either of the parties to the suit on the question as to whether there was a compromise or not, a decree accepting the compromise on resolution of that controversy, cannot be said to be a decree passed with the consent of the parties. Therefore, the bar under Section 96(3) of the Code would not have any application. Section 96(3) is applicable to cases where the factum of compromise or agreement is not in dispute.
(vii) If the aggrieved party was not the party to the suit, the remedy available to him to challenge the decree passed by the Court on the basis of compromise between the parties to the suit (consent decree), would be to file an appeal under Section 96(1) of the CPC, with the leave of the appellate Court, or to file a review application before the Court, which passed the decree, as may be permissible under Section 114 read with Order XLVII of the CPC.
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(viii) The words "signed by the parties" contained in Rule 3 of Order XXIII would include the compromise signed by the duly authorized pleaders or the power- of-attorney holders or the recognized agents of the parties concerned.
41. Ergo, the questions referred may be answered as under:--
(A) In case of a decree passed by the trial Court on the basis of the compromise between the parties (consent decree), the remedy available to the aggrieved party, who was party to the suit would be to file an application under the proviso to Rule 3 of Order XXIII disputing such compromise, and the remedy available to the aggrieved party, who was not party to the suit would be to file an appeal under Section 96 of the CPC with the leave of the appellate Court, or to file a review application before the Court, which passed the decree on the basis of compromise, as may be permissible under Section 114 read with Order XLVII of the CPC. OrderXLIII, Rule 1-A of the CPC does not provide for any remedy for filing an appeal either from any order or any decree.
(B) The judgment in case of legal heirs of deceased Ullasbhai Parsottambhai (AIR 2013 CC 2697 (Guj)) Page 47 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined (supra) and the order in case of Indira R. Adhia (supra) connote correct position of law, whereas the judgment in case of Sanskruti Infra Developers (supra) does not connote correct position of law to the extent it held that the aggrieved party can prefer an Appeal from Order as provided under Rule 1A of Order XLIII of the CPC. Similarly, the judgment in case of Kantibhai (supra) also does not connote correct position of law to the extent it held that the appeal at the instance of the appellant, who was the third party challenging the decree passed by the trial Court on the basis of the consent terms arrived at between the parties to the suit, would not be maintainable in view of the bar contained in Section 96(3) of the CPC.
(C) The answer is covered in the answer (A).
28. In the case of Naresh Shridhar Mirajkar v. State of Maharashtra reported in (1966) 3 SCR 744, it held as under:
"51. In this connection, it is necessary to refer to another aspect of the matter, and that has relation to the nature and extent of this Court's jurisdiction to issue writs of certiorari under Article 32(2). Mr Setalvad has conceded that if a court of competent jurisdiction makes an order in a proceeding before it, and the order is inter-partes, its Page 48 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined validity cannot be challenged by invoking the jurisdiction of this Court under Article 32, though the said order may affect the aggrieved party's fundamental rights. His whole argument before us has been that the impugned order affects the fundamental rights of a stranger to the proceedings before the Court; and that, he contends, justifies the petitioners in moving this Court under Article 32. It is necessary to examine the validity of this argument.
52. It is well-settled that the powers of this Court to issue writs of certiorari under Article 32(2) as well as the powers of the High Courts to issue similar writs under Article 226 are very wide. In fact, the powers of the High Courts under Article 226 are, in a sense, wider than those of this Court, because the exercise of the powers of this Court to issue writs of certiorari are limited to the purposes set out in Article 32(1). The nature and the extent of the writ jurisdiction conferred on the High Courts by Article 226 was considered by this Court as early as 1955 in T.C. Basappa v. T. Nagappa [(1955) 1 SCR 250, at pp 256-8] . It would be useful to refer to some of the points elucidated in this judgment. The first point which was made clear by Mukherjea, J., who spoke for the Court, was that "in view of the express provisions in our Constitution, we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an Page 49 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law". One of the essential features of the writ, according to Mukherjea, J., is "that the control which is exercised through it over judicial or quasi-judicial tribunals or bodies is not in an appellate but supervisory capacity. In granting a writ of certiorari, the superior court does not exercise the powers of an Appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The supervision of the superior Court exercised through writs of certiorari goes to two points, one is the area of inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of law in the course of its exercise. Certiorari may lie and is generally granted when a court has acted without or in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject- matter of the proceeding or from the absence of some preliminary proceeding or the court itself may not be legally constituted or suffer from certain disability by reason of extraneous circumstances. When the jurisdiction of the court depends upon the existence of some collateral fact, it is well Page 50 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined settled that the court cannot by a wrong decision of the fact give it jurisdiction which it would not otherwise possess". It is in the light of these principles which have been consistently followed by this Court in dealing with the problem relating to the exercise of the writ jurisdiction by the High Courts under Article 226 or by this Court under Article 32, that we must now proceed to deal with the point before us.
58. We have referred to these decisions to illustrate how the jurisdiction to issue writs of certiorari has been exercised either by the High Courts under Article 226 or by this Court under Article 32. Bearing these principles in mind, let us enquire whether the order impugned in the present proceedings can be said to be amenable to the jurisdiction of this Court under Article 32. We have already seen that the impugned order was passed by the learned Judge after hearing the parties and it was passed presumably because he was satisfied that the ends of justice required that Mr Goda should be given protection by prohibiting the publication of his evidence in the newspapers during the course of the trial. This matter was directly related to the trial of the suit; and in exercise of his inherent power, the learned Judge made the order in the interests of justice. The order in one sense is inter-partes, because it was passed after hearing arguments on both the sides. In another sense, it is not inter-partes inasmuch as it prohibits strangers like the petitioners from publishing Mr Goda's Page 51 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined evidence in the newspapers. In fact, an order of this kind would always be passed after hearing parties before the Court and would in every case affect the right of strangers like the petitioners who, as Journalists, are interested in publishing court proceedings in newspapers. Can it be said that there is such a difference between normal orders passed inter-partes in judicial proceedings, and the present order that it should be open to the strangers are who affected by the order to move this Court under Article 327. The order, no doubt, binds the strangers; but, nevertheless, it is a judicial order and a person aggrieved by it, though a stranger, can move this Court by appeal under Article 136 of the Constitution. Principles of res judicata have been applied by this Court in dealing with petitions filed before this Court under Article 32 in Daryao v. State of U.P. [(1962) 1 SCR 574] We apprehend that somewhat similar considerations would apply to the present proceedings. If a judicial order like the one with which we are concerned in the present proceedings made by the High Court binds strangers, the strangers may challenge the order by taking appropriate proceedings in appeal under Article 136. It would, however, not be open to them to invoke the jurisdiction of this Court under Article 32 and contend that a writ of certiorari should be issued in respect of it. The impugned order is passed in exercise of the inherent jurisdiction of the Court and its validity is not open to be challenged by writ proceedings.Page 52 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024
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61. But apart from this aspect of the matter, we think it would be inappropriate to allow the petitioners to raise the question about the jurisdiction of the High Court to pass the impugned order in proceedings under Article 32 which seek for the issue of a writ of certiorari to correct the said order. If questions about the jurisdiction of superior courts of plenary jurisdiction to pass orders like the impugned order are allowed to be canvassed in writ proceedings under Article 32, logically, it would be difficult to make a valid distinction between the orders passed by the High Courts inter-partes, and those which are not inter-partes in the sense that they bind strangers to the proceedings. Therefore, in our opinion, having regard to the fact that the impugned order has been passed by a superior court of record in the exercise of its inherent powers, the question about the existence of the said jurisdiction as well as the validity or propriety of the order cannot be raised in writ proceedings taken out by the petitioners for the issue of a writ of certiorari under Article 32.
62. Whilst we are dealing with this aspect of the matter, we may incidentally refer to the relevant observations made by Halsbury on this point. "In the case of judgments of inferior courts of civil jurisdiction", says Halsbury in the footnote, "it has been suggested that certiorari might be granted to quash them for want of jurisdiction [Kemp v.Page 53 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024
NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined Balne, (1844) 1 Dow. & L. 885, at p. 887], inasmuch as an error did not lie upon that ground. But there appears to be no reported case in which the judgment of an inferior court of civil jurisdiction has been quashed on certiorari, either for want of jurisdiction or on any other ground [Halsbury Laws of England Vol 11, pp. 129, 130] ". The ultimate proposition is set out in the terms:"Certiorari does not lie to quash the judgments of inferior courts of civil jurisdiction". These observations would indicate that in England the judicial orders passed by civil courts of plenary jurisdiction in or in relation to matters brought before them are not held to be amenable to the jurisdiction to issue writs of certiorari.
81. There is one other reason why, in my view, the petitions should fail. The petitions ask for a writ of certiorari. We are, therefore, concerned only with that writ. The difficulty that at once arises is, does a certiorari lie to remove, for the purpose of quashing, the order of a High Court, which the order of Tarkunde, J. undoubtedly was? I am confining myself only to a writ of certiorari for quashing a judicial order made by a High Court. The Constitution does not say what a writ of certiorari is. As certiorari is a technical word of English law and had its origin in that law, for determining its scope and contents we have necessarily to resort to English law. I am not unmindful that we are not to look back to the procedural technicalities of the writ as obtaining in English law. Nonetheless Page 54 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined however we have to keep to the broad and fundamental principles that regulate the exercise of the jurisdiction to issue the writ in that law : T.C. Basappa v. T. Nagappa [(1955) 1 SCR 250, at pp 256-8]
84. It was said that the High Courts were inferior courts as appeals lie from them to the Supreme Court. This argument is really based on the theory that an inferior court is one from which an appeal lies to another court. Now, there are many tribunals from which no appeal lies to a High Court upon which the Constitution has conferred the power to issue a writ of certiorari. If appealability was the test, then the High Courts would not be able to issue writs of certiorari to such tribunals as they would not then be inferior courts. In that case, a High Court's power to issue the writ would only be confined to courts from which appeals lie to it. It would be strange if this was what the Constitution contemplated when it provided that the High Courts would have the power to issue writs of certiorari. I am not prepared to adopt a test which produces such a result. Nor do I think that the Constitution intended it. With the growing number of these tribunals and the increasing scope of their activity covering a large part of an average citizen's life, property and work, it is of the utmost importance that the citizens should have the quick and effective remedy of a writ of certiorari by approaching the High Courts for such writs. I am not prepared to accept a Page 55 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined test which would affect that right in any way. Besides this aspect of the matter, the power to issue a writ of certiorari is most valuable and most needed where an appeal does not lie from a decision of a tribunal and that decision is sought to be called in question. A test which would prevent the writ from lying in a case where it is most needed is not acceptable to me. I may add that in England where a writ of error -- a form of appeal -- lay, the certiorari does not appear to have issued.
130. I am unable however to agree that in the matter of exercise of powers of this Court to issue writs against orders of courts which are alleged to infringe a fundamental right under Article 19, any distinction between the High Court and subordinate courts may be made. In my view orders made by subordinate courts, such as the District Court or Courts of Subordinate Judges which are courts of trial and courts of plenary jurisdiction are as much exempt from challenge in enforcement of an alleged fundamental right under Article 19 by a petition under Article 32 of the Constitution as the orders of the High Courts are. The argument that a writ of certiorari is an appropriate writ for correcting errors committed by an "inferior" authority or tribunal exercising judicial power, and that the High Court is not an "inferior court" cannot in my judgment prevail. No adequate test of inferior status which would support a valid distinction between the High Court and other courts or Page 56 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined tribunals would stand scrutiny. If the investment of appellate power in this Court is a valid test, all courts and tribunals (except the courts and tribunals constituted by and under the law relating to the Armed Forces or the Forces charged with the maintenance of public order within the territory of India) are inferior to this Court, and if the grounds which I have set out in some detail earlier for holding that a petition does not lie to this Court under Article 32 against an alleged infringement of rights by an adjudication of a court or by an order of a court against a stranger to the proceeding, such order being made in aid of determination of the dispute between the parties before the court, be not true, the order of the High Court would be as much subject to jurisdiction of this Court under Article 32 as an adjudication of any other subordinate court such as the District Court or the Subordinate Judges' Courts. If the test of inferiority is to be found in the investment of supervisory jurisdiction, this Court is not invested with that jurisdiction over any Court, be it the High Court, or the District Court or the Subordinate Judge's Court. It is unnecessary to enter upon a discussion about the procedural law in the United Kingdom relating to the issue of writs of certiorari in considering whether jurisdiction under Article 32 of the Constitution may be exercised. This Court is competent to issue an appropriate writ including a writ in the nature of a writ of certiorari. If it be granted that the fundamental right under Article 19 may be infringed by an Page 57 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined adjudication of a court -- civil or criminal because the court had come to an erroneous conclusion, I see no ground for making a distinction between adjudications of the High Court which is a superior court of record and of courts which are subject to the appellate jurisdiction of the High Court. It is true that the High Courts are invested with the power under Article 226 of the Constitution to issue writs in enforcement of fundamental rights. The power to issue a writ in respect of the territory over which the High Court has jurisdiction in enforcement of fundamental rights is co- extensive with the power which this Court possesses. But if this Court possesses authority to issue a writ in respect of an adjudication by a court, the circumstance that the High Court has also power to issue a writ of certiorari which may be issued by this Court in enforcement of a fundamental right whereas the subordinate courts have not, will not warrant the distinction sought to be made on behalf of the respondents. I am therefore unable to agree that in the matter of issue of a writ of certiorari against the order of any court, a distinction may be made between the order of the District Court or the subordinate court and an order of the High Court.
138. It follows that the impugned order was passed by a court of competent jurisdiction under a valid law. Whether the High Court should have passed the order is another question. The propriety of the order cannot be challenged in Page 58 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024 NEUTRAL CITATION C/SCA/4881/2002 JUDGMENT DATED: 01/05/2024 undefined a writ application under Article 32. Until the order is set aside in appropriate proceedings, it conclusively negatives the right of the petitioners to publish reports of the deposition of Bhaichand Goda. The petitioners cannot, therefore, complain that their fundamental right under Article 19(1)(a) has been infringed."
29. This Court is aware that there is serious allegation levelled by pleading fraud as well as alleged unilateral cancellation of registered document by the petitioner but looking to the totality of facts and circumstances of the present case, where the locus of present petitioner is also under cloud and therefore, though the matter is pending in this Court after admission since the year 2002 and the matter could not be disposed of for various reasons, I am of the opinion that all the relevant aspects of the matter can be examined by the learned civil court after full-fledged trial in accordance with law. Therefore, the contentions raised by the respondents that this Court should not entertain these petitions as alternative efficacious remedy is available by challenging the consent decree on the grounds raised in the present petitions, is accepted by considering the various judgments of the Hon'ble Apex Court and parties can agitate their grievance before the competent Civil Court.
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30. In view of the above discussion, without discussing anything further on merits of the matter, the petitions are dismissed as there is alternative efficacious remedy available under the law for the prayers prayed for in these petitions, which is not availed by the petitioners. Rule is discharged. Ad-interim relief granted earlier stands vacated. The parties are at liberty to avail appropriate efficacious alternative remedy available under the law. R & P be sent back to the concerned Court forthwith.
31. In view of the dismissal of the petitions, all the connected civil applications stand disposed of.
(SANDEEP N. BHATT,J) SRILATHA Learned senior advocate Mr.Sanjanwala for the petitioners has requested to extend the ad-interim relief which was in operation, till the alternative remedy is availed.
When this Court finds that the petitions itself are not maintainable and appropriate remedy is required to be availed, this Court is not inclined to grant such relief. Accordingly, request is rejected.
(SANDEEP N. BHATT,J) SRILATHA Page 60 of 60 Downloaded on : Wed May 01 21:11:36 IST 2024