Gujarat High Court
Hasmukhbhai Thakorbhai Patel vs Additional Secretary on 21 September, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
C/CA/10012/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 10012 of
2017
In SPECIAL CIVIL APPLICATION NO. 10569 of 2017
[On note for speaking to minutes of order dated 04/09/2017 in
C/CA/10012/2017 ]
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HASMUKHBHAI THAKORBHAI PATEL....Applicant(s)
Versus
ADDITIONAL SECRETARY, REVENUE DEPARTMENT (APPEALS) &
36....Respondent(s)
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Appearance:
JAY R TALAVIA, ADVOCATE for the Applicant(s) No. 1
ADVANCE COPY SERVED TO MR.KRUTIK PARIKH, AGP for the
Respondent(s) No. 1
MR HITESH V PATEL, ADVOCATE for the Respondent(s) No. 34 - 37
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 21/09/2017
ORAL ORDER
At paragraph No.22 of the order dated 04.09.2017, the numbers of Special Civil Applications have been wrongly mentioned, which should be corrected. Instead of the present reference of Special Civil Application Nos.7851 of 2014, 10423 of 2014 and 8540 of 2014, mentioned in paragraph No.22 of the order dated 04.09.2017, the reference shall be of Special Civil Application Nos.18145 of 2016 and 18822 of 2016. After necessary correction, copy shall be placed on record.
Note for Speaking to Minutes stands disposed of accordingly.
Page 1 of 2 HC-NIC Page 1 of 33 Created On Mon Sep 25 00:34:20 IST 2017 1 of 33 C/CA/10012/2017 ORDER (MS SONIA GOKANI, J.) MIRZA Page 2 of 2 HC-NIC Page 2 of 33 Created On Mon Sep 25 00:34:20 IST 2017 2 of 33 C/CA/10012/2017 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 10012 of 2017 In SPECIAL CIVIL APPLICATION NO. 10569 of 2017 ========================================================== HASMUKHBHAI THAKORBHAI PATEL....Applicant(s) Versus ADDITIONAL SECRETARY, REVENUE DEPARTMENT (APPEALS) &
36....Respondent(s) ========================================================== Appearance:
MR ANSHIN DESAI, SR. ADV. with MR JAY R TALAVIA, ADVOCATE for the Applicant(s) No. 1 ADVANCE COPY SERVED TO MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1 MR RS SANJANWALA, SR. ADV. with MR VIMAL M. PATEL with MR HITESH V PATEL, ADVOCATES for the Respondent(s) No. 34 - 37 ========================================================== CORAM: HONOURABLE MS JUSTICE SONIA GOKANI Date : 04/09/2017 ORAL ORDER 1 Applicant is the original respondent No.4 in the main petition being Special Civil Application No. 10569 of 2017 preferred by the Opponents No.34 to
37 as original petitioners where Opponents No.1 to 33 are the original respondents. They shall be addressed as the respondents and petitioners hereinafter for the sake of convenience. Page 1 of 31 HC-NIC Page 3 of 33 Created On Mon Sep 25 00:34:20 IST 2017 3 of 33 C/CA/10012/2017 ORDER 2 This is an application seeking to vacate the interim relief granted by this Court (Coram:
J.P.Pardiwala,J.) vide oral order dated 27.6.2017 in the main petition, whereby the impugned order dated 27.6.2017 passed by Respondent No.1 herein is stayed. It is alleged that petitioners have not come to this Court with clean hands and have obtained oral order of stay by suppressing the material facts and misleading the Court. This, according to respondent No.4 (applicant herein) would attract the criminal contempt and ad interim relief is required to be vacated forthwith.
3 The facts which had led to the present application would be required to be capsulised at this stage.
3.1 The petitioners have averred that they have right, title, interest and possession of the land bearing Survey No.49/2 admeasuring 18,312 sq.meters situated at village Ved, Taluka:
Surat city and District:Surat (to be referred to as "the land in question") pursuant to two separate sale deeds dated 7.5.2010 and Page 2 of 31 HC-NIC Page 4 of 33 Created On Mon Sep 25 00:34:20 IST 2017
4 of 33 C/CA/10012/2017 ORDER 13.5.2010 registered at Sr. No.6848 and 7172 before the SubRegistrar, Surat executed by respondent No.15 Somiben Jethabhai, on the strength of will of her father as she claims to have been bequeathed the said property by will dated 30.5.1995. It is averred that respondent No.4 challenged Entry No.1009 dated 2.8.1996 in respect of the very will after a period of 14 years by way of RTS Appeal No.146 of 2010 on 16.7.2010 before respondent No.3. 4 It is the case of the petitioners that the land in question with other land bearing Survey Nos.48 and 119 were owned by deceased Jethabhai Vallabhbhai Patel who executed a will dated 11.5.1995 duly executed on 30.5.1995 before a notary, Mr. Viresh I. Thakkar in presence of two witnesses, namely, Hasmukhbhai Bagubhai Patel and Himmatlal Nathubbai Patel. An entry in respect of the will was mutated in the revenue record on 2.8.1996 vide Entry No.1009 and the same was duly certified on 10.9.1996. Pursuant to the notice issued under section 135(D) of the Bombay Land Revenue Code, 1879, it was found that Page 3 of 31 HC-NIC Page 5 of 33 Created On Mon Sep 25 00:34:20 IST 2017 5 of 33 C/CA/10012/2017 ORDER restrictions reflected in the revenue record under section 43 of the Bombay Tenancy and Agriculture Lands Act, 1948 ("the Tenancy Act"
for short) was a mistake. In fact, such a mistake was corrected by an order dated 23.5.2008 passed by the Deputy Collector and, thereafter, an entry came to be mutated vide Entry No.1427 dated 27.5.2008. There was no dispute of any entry pending in respect of the land bearing Survey No.49/2 and, therefore, in the year 2010 as referred to hereinbefore by two registered sale deeds bearing No.6848 and 7172 for a consideration of amount of Rs.2.06 crores, the land came to be purchased by the petitioners and pursuant to such sale, the entry also came to be mutated vide Entry No.1524 on 25.7.2011. 5 To the petitioners' shock, respondent No.4 preferred Special Civil Suit No.293 of 2010 to be joined as party defendants. The suit came to be instituted on 6.6.2010 and was amended on 10.1.2013.
5.1 Respondent No.4 preferred an application for injunction dated 6.6.2010 and subsequently, Page 4 of 31 HC-NIC Page 6 of 33 Created On Mon Sep 25 00:34:20 IST 2017 6 of 33 C/CA/10012/2017 ORDER also filed an Application vide Exh.202 on dated 5.1.2015, however, no order has been granted in favour of respondent No.4. It is further their say that the respondent No.4 has averred alleging that the said will is forged and also have impleaded the petitioners on later date this challenge without injunction can have no dent in peaceful enjoyment of property by the petitioners.
5.2 It is the further say of the petitioners that having failed to seek any order from the Civil Court, respondent No.4 preferred Revision Application No.42 of 2010 challenging the order dated 23.5.2008 passed by the Deputy Collector correcting the mistake of restrictions under section 43 of the Tenancy Act. The State Government, after 5 years, at the behest of respondent No.4,allowed the revision application no.6 of 2013 preferred before the Gujarat Revenue Tribunal (GRT) challenging such order of Deputy Collector of 23.5.2008. 5.3 The petitioners have, therefore, preferred Special Civil Application No. 7851 of 2014 Page 5 of 31 HC-NIC Page 7 of 33 Created On Mon Sep 25 00:34:20 IST 2017 7 of 33 C/CA/10012/2017 ORDER challenging the said order of Revisional authority dated 31.3.2014, which is pending before this Court.
6 Respondent No.4 and others raised the objection to Entry NO.1524 dated 25.7.2011 in respect of the sale transactions allowed by Mamlatdar, Surat in Dispute Case No.156 of 2011 vide order dated 20.6.2012 against which RTS (Appeal) No.130 of 2012 preferred by the petitioner is pending before the Deputy Collector, Surat. 7 Respondent No.4 also preferred, after a period of 14 years, Appeal No.146 of 2010 before respondent No.3 challenging Entry No.1009 dated 2.8.1996 mutated in respect of sale transactions of Survey No.48 purchased by respondents No.29 to 35. The petitioners, were not joined as party though they would be directly affected by its outcome and the entry of Entry No.1009 is cancelled. 7.1 RTS (Appeal)No.146 of 2010 was dismissed vide order dated 11.2.2013 by respondent No.3. Challenging the same, RTS Revision Application No.100 of 2013 was preferred before respondent No.2, which too, was dismissed by order dated Page 6 of 31 HC-NIC Page 8 of 33 Created On Mon Sep 25 00:34:20 IST 2017 8 of 33 C/CA/10012/2017 ORDER 8.1.2016, passed by the Collector, Surat. 7.2 Respondent No.4 then preferred Revision Application No.26 of 2016 before respondent No.1 challenging both the orders dated 11.2.2013 and 8.1.2016 of respondent No.3 and 2 respectively, which was partly allowed on 12.9.2016, by setting aside the order dated 8.1.2016 remanding the matter to the Collector, Surat to consider on merit by observing that what has been seriously disputed is the Will and hence, mere dismissal on the ground of delay may not subserve the object. 7.3 The petitioners also averred that they had not been joined as parties in the revenue proceedings and, therefore, they are entitled to challenge the impugned order of respondent No.1, which allowed Revision Application No.26 of 2016 filed by respondent No.4 remanding the matter to consider it on merits, without deciding the delay aspect which has been caused in challenging Entry No.1009 dated 2.8.1996. 7.4 The petitioners have approached this Court, as according to them, they came to know in the Page 7 of 31 HC-NIC Page 9 of 33 Created On Mon Sep 25 00:34:20 IST 2017 9 of 33 C/CA/10012/2017 ORDER month of March, 2017 about the order passed by respondent No.1 and thereafter on getting certified copy of such orders, with the following prayers, they are before this Court: "19. in the premises as aforesaid, the petitioners pray that:
A. Your Lordships may be pleased to issue a writ of mandamus or certiorari or any other appropriate writ or order to quash and set aside the order dated 12/09/2016 passed by respondent No.1 in revision application No.26 of 2016 at ANNEXURE "A" and dismiss the revision application No.26 of 2016.
B. Pending the hearing and final disposal of the present petition, Your Lordships may be pleased to stay the operation and implementation of order dated 12/09/2016 passed by respondent No.1 in revision application No.26 of 2016 at ANNEXURE "A".
C. Exparte adinterim relief in terms of PrayerB above may kindly be granted; D. Your Lordships may be pleaded to pass an order of cost against the respondents;
E. Pass such other and further reliefs as may be deemed just and proper in the interest of justice."
8 This Court has issued rule making it returnable on 22.9.2017 and granted ad interim relief in terms of para 19B, whereby operation and implementation of the order dated 12.9.2016 passed by respondent No.1 in Revision Application Page 8 of 31 HC-NIC Page 10 of 33 Created On Mon Sep 25 00:34:20 IST 2017 10 of 33 C/CA/10012/2017 ORDER No.26 of 2016 has been stayed.
9 Respondent No.4 (applicant) preferred this Civil Application under Article 226(3) of the Constitution of India, wherein it is fervently urged by the respondent No.4(applicant) that the entire basis of the petitioners is that they would be affected by any decision in respect of Entry No.1009 dated 2.8.1996 in respect of the will, which if is cancelled, by the authority and since they were not joined as party opponents, order is in breach of the principles of natural justice.
9.1 Respondent No.4 preferred RTS(Appeal) No.146 of 2010 before respondent No.3 on 16.7.2010, whereas the petitioners purchased, vide registered sale deeds dated 7.5.2010 and 13.5.2010, the subject land bearing Revenue Survey No.49/2. According to the applicant respondent No.4, he was not aware of the said sale deeds in favour of the petitioners and, therefore, they were not joined as party Page 9 of 31 HC-NIC Page 11 of 33 Created On Mon Sep 25 00:34:20 IST 2017 11 of 33 C/CA/10012/2017 ORDER opponents before respondent No.3. Respondent No.4 preferred RTS Appeal No.350 of 2016(Old No.125 of 2014) before Deputy Collector and challenged Entry No.1524 mutating the same in the names of the petitioners where the present petitioners are party opponents and the same is transferred to Deputy Collector, Kamrej in 2016. Respondent No.4 pressed into service documentary list on 12.5.2016 where he (respondent No.4) has also produced a copy of order dated 11.2.2013 passed by respondent No.2 so also the copy of Revision Application No.26 of 2016 preferred before respondent No.1 and also notice dated 16.4.2016 with respect to the hearing. It is, therefore, their say that the petitioners were quite aware of pendency of proceedings. They never made any application before respondent No.1 to join themselves as party opponents and were sitting on the fence. 10 According to respondent No.4, even in Special Civil Suit No.293 of 2010 instituted on 7.6.2010 the petitioners were not joined as party Page 10 of 31 HC-NIC Page 12 of 33 Created On Mon Sep 25 00:34:20 IST 2017 12 of 33 C/CA/10012/2017 ORDER defendants as respondent No.4 was not aware about the sale. No sooner did it was noticed that the petitioners' purchased the land in question, then they were joined as party defendants in the Civil Suits and other proceedings.
11 It is again the case of respondent No.4 that respondents No.20 to 26 also produced documentary evidence in Special Civil Suit No.293 of 2010 whereby the order passed by respondent No.3 on 11.2.2013 has been produced and the learned advocate for the petitioners has endorsed of having received the copy of such a list. Likewise, order passed by respondent No.2 dated 8.1.2016 is also produced by respondents No.20 to 26 on 29.3.2016 and the copy of the same had been received by learned advocate for the petitioners. The petitioners themselves placed on record the order dated 8.1.2016 of respondent No.2 before the Deputy Collector in RTS (Appeal) No.130 of 2012. Again, the petitioners themselves have placed on record the said order of respondent No.3 before the Deputy Collector in Page 11 of 31 HC-NIC Page 13 of 33 Created On Mon Sep 25 00:34:20 IST 2017 13 of 33 C/CA/10012/2017 ORDER RTS No.347 of 2016 and 348 of 2016 and 349 of 2016.
11.1 It is also the case of respondent No.4 that the impugned order dated 12.9.2016 passed by respondent No.1 has been produced by Opponent Nos.11 to 13. On 26.9.2016 in Special Civil Suit No.427 of 2010. The petitioners' advocate received the copy of the same and made endorsement of having received such a copy as on 26.9.2016. Therefore, according to respondent No.4, the petitioners have made false statement on oath particularly at paragraph 11 that the petitioners came to know about the order impugned in the month of March, 2017 while inquiring with the revenue office in other proceedings. It is also the say of the said respondent No.4 that two other petitions being Special Civil Application No. 18145 of 2016 and Special Civil Application No. 18822 of 2016 in October, 2016 challenging the order dated 12.9.2016 were filed. This Court has Page 12 of 31 HC-NIC Page 14 of 33 Created On Mon Sep 25 00:34:20 IST 2017 14 of 33 C/CA/10012/2017 ORDER issued notice and chose not to grant any stay. Respondents No.12 to 14 have appeared on caveat and in Special Civil Application No.18822 of 2016, this Court issued the notice on 21.12.2016. These aspects have been materially suppressed. It is urged vehemently that all these aspects ought to have been disclosed before the Court, and therefore, equitable relief should not continue. According to respondent No.4, there are numerous disputed questions of facts, which since had not been entertained by the Assistant Collector and Collector, the petitioners had to approach the revisional authority and the matter came to be remanded to the Collector, Surat for appropriate decision in accordance with law. Such an order suffers from no defect and hence, extra ordinary jurisdiction under Article 226 of the Constitution of India does not deserve to be entertained.
11.2 This Court has heard learned senior advocate Mr. Rashesh Sanjanwala appearing with learned Page 13 of 31 HC-NIC Page 15 of 33 Created On Mon Sep 25 00:34:20 IST 2017 15 of 33 C/CA/10012/2017 ORDER advocate Mr.H.V.Patel for original petitioners and learned senior advocate Mr.Anshin Desai with Mr.Jay Talavi for respondent No. 4 and learned Assistant Government Pleader Mr.Utkarsh Sharma for respondents No.1 to 3.
11.3 Learned advocates on both the sides have made their elaborate submissions and also have substantiated the same by following authorities.
11.4 Following are the decisions sought to be relied upon by the learned advocate appearing for the petitioners :
1. Chhimiben Wd/o Hirabhai Gopalbhai vs. State of Gujarat, 2005(3) GLH 657.
2. Amrutlal Foundation Thro' Power of Attorney Holder vs. State of Gujarat, 2016 JX(Guj) 992.
3. Gandabhai Dalpatbhai Patel vs. State of Gujarat, 2005(2) GLR 1370.
12 It emerges that the root cause of entire dispute appears to be the purported will of deceased Page 14 of 31 HC-NIC Page 16 of 33 Created On Mon Sep 25 00:34:20 IST 2017 16 of 33 C/CA/10012/2017 ORDER Jethabhai dated 11.5.1995, who passed away on 8.10.1995, in both Civil Suits and petitions being Special Civil Suit No.293 of 2010 and Special Civil Application No. 427 of 2010. The said will is under challenge on the ground of the same being fake, forged and fabricated. 13 The First Information Report also has been filed under sections 406, 420, 465,467,468, 471, 120B and 114 of the Indian Penal Code on 1.3.2012, where after due investigation, the final report under section 173(2) of the Code has been submitted by the Investigating Agency culminating into laying of the chargesheet. It is an allegation of other heirs of Jethabhai that Somiben (respondent No.15), one of the heirs, had fraudulently received the land in question by the said purported will and, therefore, on the legal maxim nemo dat quid non habet, no one can give what he does not possess, respondent No.15 could not possess better title than what she has herself nor can she pass on better title to others. Therefore, it is the say of respondents Page 15 of 31 HC-NIC Page 17 of 33 Created On Mon Sep 25 00:34:20 IST 2017 17 of 33 C/CA/10012/2017 ORDER No.4 and others that all consequential transactions of transfer of the said land are null and void.
14 Mutation Entry No.1009 has been made after once the registered sale deed had been effected in respect of the land in question. It is also alleged that the notice under section 135D of the Gujarat Land Revenue Code also has not been served to the straight line legal heirs of deceased Jethabhai Vallabhbhai. Respondent No.4, therefore, had challenged, by way of RTS proceedings, where both the respondents, No.2 and 3, on the ground of delay, had not entertained such challenge. It is the grievance of respondent No.4 that when vital challenges are at large before the competent Civil Court and the Civil and Criminal Courts and the First Information Report alleged against respondent No.15 and others has also culminated into filing of chargesheet, delay cannot be the sole ground to be considered by the revenue authority, more particularly, when valid and sufficient grounds Page 16 of 31 HC-NIC Page 18 of 33 Created On Mon Sep 25 00:34:20 IST 2017 18 of 33 C/CA/10012/2017 ORDER have been made out for condoning such delay. 15 It is the stand of respondent No.4 that there is an intention to suppress and it is not inadvertence. He also further urged that there are various proceedings pending between the parties. He also urged that the fraud would vitiate everything. It was the order of Deputy Collector of lifting the restrictions of new tenure land on 23.5.2008. There are serious challenges made in both the suits questioning the registered sale deeds dated 7.5.2010 and 13.5.2010. Special Civil Suit No.427 of 2010 has been filed by respondents No.12 and 13 Hinabena and Jayanaben and Special Civil Suit No.293 of 2010 is preferred by respondent No.4. It is urged that the Revenue Entry of 1996 is challenged in the year 2010, which is an unreasonable time. During the long time of Jethabhai, nobody had challenged such Entry, but that would not mean that the fraud cannot be unearthed. The statutory period of limitation would not dilute the issue of fraud.
Page 17 of 31 HC-NIC Page 19 of 33 Created On Mon Sep 25 00:34:20 IST 2017 19 of 33 C/CA/10012/2017 ORDER 15.1 According to the petitioners, there was no deliberate intention on the part of the petitioners not to suppress anything. It was by inadvertence that certain details have not been given. The petition since is already filed, let that fact not weigh in continuing the interim relief. He urged that from the year 1996 to 2010, neither respondent No.4 nor respondents No.12 and 13 have challenged anything. Third party rights have been created in the year 2010 and this is all on account of rise in the prices that the parties are litigating. Special Civil Suits have been preferred being Special Civil Application No.7851 of 2014 where notice is issued and Special Civil Application No.10423 of 2014 is filed by heirs of Ratilal. Special Civil Application No. 8540 of 2014 is by Bikhabhai in respect of the new tenure land. Various disputed questions of facts are before this Court. However, in the main petition itself, the challenge is to the order of remand on the ground of breach of principles of natural justice and also in the suppression of Page 18 of 31 HC-NIC Page 20 of 33 Created On Mon Sep 25 00:34:20 IST 2017 20 of 33 C/CA/10012/2017 ORDER certain facts.
16 It is not in dispute that in the year 2010, the entry is mutated as registered sale deed is effected in favour of petitioners. The challenge is made in the year 2014. However, orders of both the authorities i.e. of Deputy Collector and that of the Collector have been held against respondent No.4, and when the matter was challenged in the revision, revisional authority granted remand. Respondent No.4 has given various details as to how, periodically, the proceedings before both the Deputy Collector and Collector had been made known to the petitioners in different proceedings and the orders also have formed the part of those proceedings. So as to avoid any repetition of facts narrated hereinabove, no dilation would be necessary, however, it would suffice to note that the petitioners chose not to implead themselves as party opponents in such proceedings before the Deputy Collector and the Revisional authority where the challenge is made to the Revenue entry Page 19 of 31 HC-NIC Page 21 of 33 Created On Mon Sep 25 00:34:20 IST 2017 21 of 33 C/CA/10012/2017 ORDER entered in the name of Somiben on the strength of will of late Shri Jethabhai Patel. As is rightly pointed out by the respondent No.4 that it is not by inadvertence that at paragraph 11 of the petition, there is a categorical averment of having come to know about the order of revisional authority in the month of March, 2017, and therefore, the challenge. Time and again,the petitioners knew about such challenge to the Mutation entry of the proceedings questioning the actions of some of the respondents. Civil Suits challenging the will and also registered sale deeds are also within the knowledge of the petitioners.
17 It is the well laid down law that when the document of registered sale deed is produced before the revenue authorities, they are bound to give effect to the same and they cannot decide the title of the parties nor can they decide the genuineness of the power of attorney. In other words, when the necessary entries are made in the record of rights, pursuant to any registered sale deed, revenue authorities are not to decide the Page 20 of 31 HC-NIC Page 22 of 33 Created On Mon Sep 25 00:34:20 IST 2017 22 of 33 C/CA/10012/2017 ORDER question about the title. The scope of powers of the revenue authorities, while deciding the question with regard to the mutation entries, is well settled and such disputes with regard to the right, title and interest shall have to be adjudicated by the competent Civil Court. The record of rights and mutation entries are one of the modes of enjoyment of property. However, such entries have been created in the interest in the right and title of the properties. Such entries are for fiscal purpose for collection and payment of revenue. It is also a settled law that the entries in the revenue records since are having value for fiscal purpose, any challenge of will on account of fraud needs to be examined by the Civil Court and until such finding is arrived at, the Court concerned may allow to continue such entries on the revenue record.
18 However, what is under challenge is suppression and the challenge of such entry on the ground of fraud. In the decision rendered in case of Madhukar Sadbha Shivarkar vs. State of Page 21 of 31 HC-NIC Page 23 of 33 Created On Mon Sep 25 00:34:20 IST 2017 23 of 33 C/CA/10012/2017 ORDER Maharashtra and others, (2015) 6 SCC 557 where the Court has held that the fraudulent act would unravel everything and, therefore, the question of limitation would not arise at all. The relevant paragraphs of the said decision deserve reproduction as under: "18. The said order is passed by the State Government only to enquire into the land holding records with a view to find out as to whether original land revenue records have been destroyed and fabricated to substantiate their unjustifiable claim by playing fraud upon the Tehsildar and appellate authorities to obtain the orders unlawfully in their favour by showing that there is no surplus land with the Company and its share holders as the valid subleases are made and they are accepted by them in the proceedings under Section 21 of the Act, on the basis of the alleged false declarations filed by the share holders and sublessees under Section 6 of the Act. The plea urged on behalf of the State Government and the defacto complainantsowners, at whose instance the orders are passed by the State Government on the alleged ground of fraud played by the declarants upon the Tehsildar and appellate authorities to get the illegal orders obtained by them to come out from the clutches of the land ceiling provisions of the Act by creating the revenue records, which is the fraudulent act on their part which unravels everything and therefore, the question of limitation under the provisions to exercise power by the State Government does not arise at all. For this purpose, the Deputy Commissioner of Pune Division was appointed as the Enquiry Officer to hold such an enquiry to enquire into the matter and submit his report for consideration of the Government to take further action in the matter. The legal contentions Page 22 of 31 HC-NIC Page 24 of 33 Created On Mon Sep 25 00:34:20 IST 2017 24 of 33 C/CA/10012/2017 ORDER urged by Mr. Naphade, in justification of the impugned judgment and order prima facie at this stage, we are satisfied that the allegation of fraud in relation to getting the land holdings of the villages referred to supra by the declarants on the alleged ground of destroying original revenue records and fabricating revenue records to show that there are 384 sub leases of the land involved in the proceedings to retain the surplus land illegally as alleged, to the extent of more than 3000 acres of land and the orders are obtained unlawfully by the declarants in the land ceiling limits will be nullity in the eye of law though such orders have attained finality, if it is found in the enquiry by the Enquiry Officer that they are tainted with fraud, the same can be interfered with by the State Government and its officers to pass appropriate orders. The land owners are also aggrieved parties to agitate their rights to get the orders which are obtained by the declarants as they are vitiated in law on account of nullity is the tenable submission and the same is well founded and therefore, we accept the submission to justify the impugned judgment and order of the Division Bench of the High Court."
19 In the case of Jt. Collector, Ranga Reddy Dist and another etc. vs. D.Narsing Rao etc and Ors. Etc.,AIR 2015 SC 1021, the Court has held that the delayed exercise of revisional jurisdiction is frowned upon to challenge as that would not bring finality to any litigation. However, the very discretion of exercise of power shall have to be within a reasonable time in absence of any specific powers of litigation. The relevant Page 23 of 31 HC-NIC Page 25 of 33 Created On Mon Sep 25 00:34:20 IST 2017 25 of 33 C/CA/10012/2017 ORDER paragraph is reproduced as under: "24. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority." 20 In the case of Ram Preeti Yadav vs. U.P. Board of High School and Intermediate Education and others, 2003(8) SCC 311, the Apex Court has held that once the fraud is proved, it will deprive the person of all advantages or benefits obtained thereby. Delay in detection of or in taking action will raise no equities. This is,of course, in relation to the fraud perpetrated during the examination and later taking benefit of said purpose. The Court has held that equity had been created after taking the benefit of fraud and, Page 24 of 31 HC-NIC Page 26 of 33 Created On Mon Sep 25 00:34:20 IST 2017 26 of 33 C/CA/10012/2017 ORDER therefore, the Apex Court has held that the fraud is conduct either by letter or words, which induces the other person or authority to take definitive determinative stand as a response to the conduct of the former.
21 If one reverts to the facts of the case on hand, it is a matter of record that the fraud is alleged by some of the heirs in relation to the will of late Shri Jethabhai Patel. First Information Report has also resulted into filing of chargesheet for the investigating officer having found some prima facie substance in the complaint made. Competent Civil Courts are already adjudicating upon the rival claims of the parties in relation to the allegation of fraud. This Court, therefore, is not to go into those aspects. However, challenge made in wake of this before the Revenue authorities when had resulted into dismissal of application of respondent No.4 on the ground of delay itself, the revisional authority merely has remanded the matter to the Collector for considering all the aspects. In the main matter, this Court has issued rule where Page 25 of 31 HC-NIC Page 27 of 33 Created On Mon Sep 25 00:34:20 IST 2017 27 of 33 C/CA/10012/2017 ORDER continuation of the interim relief in wake of suppression of material facts or nonrevelation of true facts should not be allowed. 22 It is a matter of record that respondent No.4 also has not impleaded before the revenue authorities present petitioners as party defendants. This according to them, was due to inadvertence. Petitioners are the parties in many other proceedings including in the Civil Suits preferred by the respondent No.4 and they being the purchasers pendente lite, they would naturally be interested in the outcome of any proceedings concerning the land in question. The petitioners are also aware of proceedings before the competent civil Court where fraud is the ground and the basis for challenging transaction of the said land. Respondent No.4 was also expected to know and act accordingly, however, what is vital for determining whether the discretionary relief needs continuation or not, is the conduct of the party while obtaining the same. Without even entering into merits of pending litigation, it can be said that the Page 26 of 31 HC-NIC Page 28 of 33 Created On Mon Sep 25 00:34:20 IST 2017 28 of 33 C/CA/10012/2017 ORDER petitioners have known about the orders of revenue authorities much before March, 2017. They chose not to be impleaded as party opponents nor to approach appropriate authority against such orders, since those orders conveniently were in their favour as both the authorities had chosen not to entertain the challenge raised by the respondent No.4. However, when the revisional authority remanded the matter, Special Civil Application Nos. 7851, 10423 and 8540 of 2014 though were pending, petitioners have preferred to approach this Court stating incorrectly and wrongly specifically that their knowledge of orders of revenue authorities was of March, 2017 only.
23 Party which seeks discretionary relief from the Court is bound to come with clean hands. Their grievance of not being impleaded as party opponents by respondent No.4 even if is genuine, there were no earthly reasons for the petitioners not to reveal true and correct facts while approaching this Court. Nonrevalation of the fact that they were already in know of those Page 27 of 31 HC-NIC Page 29 of 33 Created On Mon Sep 25 00:34:20 IST 2017 29 of 33 C/CA/10012/2017 ORDER orders much before respondent No.4 approached the revisional authority and sitting on fence for a long time and obtaining interim relief by presently truncated version from this Court and without speaking the truth, surely does not deserve to be encouraged.
24 In the decision of the Apex Court in the case of Dalip Singh vs. State of Uttar Pradesh and others, (2010) 2 SCC 114, it held that those who do not come with clean hands does not deserve discretionary relief of injunction. 24.1 Relevant paragraph is reproduced hereunder: "A party which has misled the Court in passing an order in its favour is not entitled to be heard on the merits of the case. A person who invokes the High Court's jurisdiction under Article 226 of the Constitution is dutybound to place all the facts before the Court without any reservation. If there is suppression of material facts or twisted facts have been placed before the High Court then it will be fully justified in refusing to entertain a petition filed under Article 226 of the Constitution."
25 In the case of Manohar Lal (dead) By LRS. vs. Ugrasen (Dead) by LS. And others, (2010) 11 SCC 557, the Apex Court has held as under: "48. The present appellants had also not Page 28 of 31 HC-NIC Page 30 of 33 Created On Mon Sep 25 00:34:20 IST 2017 30 of 33 C/CA/10012/2017 ORDER disclosed that land alloted to them falls in commercial area. When a person approaches a Court of equity in exercise of its extraordinary jurisdiction under Articles 226/227 of the Constitution, he should approach the Court not only with clean hands but also with clean mind, clean heard and clean objective. "Equally, the judicial process should never become an instrument of oppression or abuse or a means in the process of the Court to subvert justice." Who seeks equity must do equity. The legal maxiim "Jure naturae aequum est neminem cum alterius detrimento et injuria fieri locupletiorem", means that it is a law of nature that one should not be enriched by the loss or injury to another.(Vide Ramjas Foundation v. Unio of India, K.R. Srinivas v. R.M. Premchand and Noorduddin v. Dr.K.L.Anand, at SCC p.249, para 9.) xxx xxx xxx xxx xxx xxx
51. In abdul Rahman vs. Prasony Bai, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Oswal Fats & Oils Ltd. v. Commr.(Admn.) this Court held that whenever the Court comes to the conclusion that the process of the Court is being abused, the Court would be justified in refusing to proceed further and refuse relief to the party. This rule has been evolved out of need of the courts to deter a litigant from abusing the process of the Court by deceiving it."
26 Article 226 (3) of the Constitution of India speaks of power of High Court to issue certain writs. Article 226(3) directs that this Court shall dispose of the application within a period of two weeks from the date on which it Page 29 of 31 HC-NIC Page 31 of 33 Created On Mon Sep 25 00:34:20 IST 2017 31 of 33 C/CA/10012/2017 ORDER is received or from the date on which the copy of the application for vacation of such order is of furnished. Article 226(3) is reproduced hereunder: "Article 226(3) in The Constitution Of India 1949 (3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ), without
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated"
27 In view of the foregoing discussion and authorities cites, in the instant case also the interim relief since has been operating in favour of the petitioners, the same deserves Page 30 of 31 HC-NIC Page 32 of 33 Created On Mon Sep 25 00:34:20 IST 2017
32 of 33 C/CA/10012/2017 ORDER to be vacated.
28 Under the circumstances, this Court could have taken up the main petition for hearing, however, the rule is already issued in the matter making it returnable on 22.9.2017 and notice to some of the respondents of the rule is to be issued making it returnable on 22.9.2017, the main petition is not taken up for final hearing.
29 It is being clarified while disposing of the application that this order would not preclude the petitioners to make an application before the Collector to implead themselves as party opponents and to contest the pending revision application. Any such application, if made, the same shall be determined on its own merit and none of the observations made in this order shall prejudice either side. 30 Civil Application stands disposed of.
(MS SONIA GOKANI, J.) SUDHIR Page 31 of 31 HC-NIC Page 33 of 33 Created On Mon Sep 25 00:34:20 IST 2017 33 of 33